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87–458 PDF 2012

S. HRG. 112–872 

THE VERIZON/CABLE DEALS: HARMLESS COLLABORATION OR A THREAT TO COMPETITION AND 

CONSUMER RIGHTS? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ANTITRUST, 

COMPETITION POLICY AND CONSUMER RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

MARCH 21, 2012 

Serial No. J–112–66 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON ANTITRUST, COMPETITION POLICY AND CONSUMER RIGHTS

HERB KOHL, Wisconsin, Chairman 

CHUCK SCHUMER, New York 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

RICHARD BLUMENTHAL, Connecticut 

MICHAEL S. LEE, Utah 

CHUCK GRASSLEY, Iowa 

JOHN CORNYN, Texas 

CAROLINE HOLLAND, Democratic Chief Counsel/Staff Director 

ROB PORTER, Republican Chief Counsel 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin ............................ 1 

prepared statement .......................................................................................... 48 

Lee, Hon. Mike, a U.S. Senator from the State of Utah ...................................... 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 50 

WITNESSES 

Witness List ............................................................................................................. 47 

Milch, Randal S., Executive Vice President and General Counsel, Verizon 

Communications, Inc., New York, New York .................................................... 5 

prepared statement .......................................................................................... 51 

Cohen, David L., Executive Vice President, Comcast Corporation, Philadelphia, Pennsylvania ............................................................................................... 7 

prepared statement .......................................................................................... 63 

Rule, Charles F., Managing Partner, Washington, DC Office, Cadwalader, 

Wickersham & Taft, LLP, Washington, DC ....................................................... 9 

prepared statement .......................................................................................... 93 

Berry, Steven K., President and CEO, Rural Cellular Association, Washington, DC ............................................................................................................. 11 

prepared statement .......................................................................................... 106 

Kelsey, Joel, Policy Advisor, Free Press, Washington, DC .................................. 12 

prepared statement .......................................................................................... 125 

Wu, Timothy, Isidor & Seville Sulzbacher Professor of Law, Columbia University, New York, New York ................................................................................... 14 

prepared statement .......................................................................................... 141 

QUESTIONS FOR THE WITNESSES 

Questions for David Cohen submitted by Senator Al Franken ........................... 146 

Questions for Randal Milch submitted by Senator Al Franken .......................... 147 

Questions for Steven Berry submitted by Senator Herb Kohl ............................. 149 

Questions for David Cohen submitted by Senator Herb Kohl ............................. 150 

Questions for Joel Kelsey submitted by Senator Herb Kohl ................................ 153 

Questions for Randal Milch submitted by Senator Herb Kohl ............................ 154 

Questions for Charles Rule submitted by Senator Herb Kohl ............................. 158 

Questions for Timothy Wu submitted by Senator Herb Kohl .............................. 159 

Questions for Steven Berry submitted by Senator Michael S. Lee ..................... 160 

Questions for David Cohen submitted by Senator Michael S. Lee ...................... 161 

Questions for Joel Kelsey submitted by Senator Michael S. Lee ........................ 163 

Questions for Randal Milch submitted by Senator Michael S. Lee ..................... 165 

Questions for Charles Rule submitted by Senator Michael S. Lee ...................... 167 

Questions for Timothy Wu submitted by Senator Michael S. Lee ...................... 168 

Questions for David Cohen submitted by Senator Charles E. Schumer ............. 170 

Questions for Randal Milch submitted by Senator Charles E. Schumer ............ 171 

WITNESS RESPONSES 

Responses by Steven Berry to Questions for the Record ...................................... 173 

Responses by David Cohen to Questions for the Record ...................................... 182 

Responses by Joel Kelsey to Questions for the Record ......................................... 197 

Responses by Randal Milch to Questions for the Record ..................................... 207 
Page

IV 

Responses by Timothy Wu to Questions for the Record ....................................... 228 

NOTE: At the time of printing, after several attempts to obtain responses 

to the written questions, the Committee had not received any communication from Charles Rule. ....................................................................................... 234 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

ConsumersUnion, Parul Desai, Policy & Action from Consumer Reports, 

Washington, DC, March 20, 2012, letter ............................................................ 235 

IBEW Local 827 New Jersey & IBEW System Council T6 New England, 

IBEW Local 824 West Central Florida, statement ............................................ 238 

T-Mobile USA, Inc., Thomas J. Sugrue, Senior Vice President, Government 

Affairs, Washington, DC, March 20, 2012, letter .............................................. 249 
(1) 

THE VERIZON/CABLE DEALS: HARMLESS COLLABORATION OR A THREAT TO COMPETITION AND CONSUMER RIGHTS? 

WEDNESDAY, MARCH 21, 2012 

U.S. SENATE, 

SUBCOMMITTEE ON ANTITRUST, COMPETITION POLICY AND

CONSUMER RIGHTS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Subcommittee met, pursuant to notice, at 4:34 p.m., Room 

SD–226, Dirksen Senate Office Building, Hon. Herb Kohl, Chairman of the Subcommittee, presiding. 

Present: Senators Klobuchar, Franken, Blumenthal, and Lee. 

OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator KOHL. Today we meet to consider the series of transactions between Verizon Wireless and four of the Nation’s largest 

cable TV companies announced last December. These deals, coming 

on the heels of the now-abandoned proposed merger between AT&T 

and T-Mobile, are the latest transactions that seek to reshape the 

wireless phone, Internet access, and cable television markets. 

Under these deals, Verizon Wireless, the Nation’s largest cell 

phone company, would acquire large chunks of Spectrum from 

Comcast, Time Warner, Cable Cox, and Bright House. And at the 

same time, these companies have all signed agreements in which 

Verizon Wireless and the cable companies agree to cross-market 

each other’s services and form a joint technology venture. 

The parties to these transactions argue that these deals are highly beneficial both to their companies, as well as to consumers. It 

will give Verizon Wireless additional spectrum necessary to meet 

the exploding demand for Internet applications used by consumers 

with smart phones, and it will permit the four cable companies, 

which collectively account for over 70 percent of the Nation’s cable 

TV subscribers, to offer a quad-play bundle to their customers: 

video, Internet, landline phone, and now wireless services, as well. 

Yet these transactions have come under serious criticism from 

consumer advocates and competitors. The basic premise of the 

landmark Telecommunications Act of 1996 was that cable companies and phone companies would enter each other’s markets and 

compete. And this vision was well on the way to being realized 

with cable companies offering landline phone service, phone companies, like Verizon, offering cable TV through its VIAS service, and 
2 

both offering consumers an on-ramp to the Internet, so crucial in 

today’s economy. 

In addition, recent years have seen a tremendous expansion of 

cell phone service and wireless devices as a way both to make 

phone calls and access the Internet. 

Many now wonder if these agreements that we are examining 

today will roll back these advances in competition and even amount 

to a truce between one of the two largest phone companies and 

over 70 percent of the cable TV industry. 

Under these agreements, cable company represents will be 

present in Verizon Wireless stores, and cable representative will be 

selling products and services that directly compete with Verizon’s, 

including VIAS. 

After these deals, will Verizon continue to develop and aggressively market VIAS? 

Furthermore, rather than attempt to develop competing wireless 

services with the spectrum the cable companies bought in 2006, the 

cable companies are selling that spectrum to Verizon Wireless and 

will be offering Verizon Wireless services to their customers. 

In addition, Verizon Wireless will be acquiring what is likely the 

last swath of crucial spectrum available for years to come, keeping 

this vital input for wireless service out of the hands of its competitors. 

After this deal, Verizon Wireless and AT&T will have, together, 

two-thirds of the Nation’s cell phone customers, as well as the 

lion’s share of the most valuable spectrum. 

Given the exploding consumer demand for smart phones and the 

spectrum they require, will the other cell phone carriers truly be 

able to compete? 

Having won the battle for competition by blocking last year’s 

AT&T and T-Mobile merger, are we now in danger, indeed, of losing the war? 

So we enter today’s hearing with more questions than answers, 

while cognizant of the very high stakes for competition in consumers in these transactions. We know that both Verizon and 

Comcast, as well as the other cable companies, believe that they 

are acting in the best interest of their own businesses and shareholders. Yet we need to ensure that consumers’ best interests will 

be served in the long run. 

We urge their regulators to ensure that nothing in these deals 

reverse the historic gains in competition between phone and cable 

companies ushered in by the Telecom Act of 1996. 

The fundamental question we must answer is whether these 

deals will bring beneficial new choices to consumers or amount to 

previously fierce rivals standing down from competition. 

We look forward to the testimony of our panel of witnesses to 

shed light on these important issues. 

[The prepared statement of Senator Kohl appears as a submission for the record.] 

Senator KOHL. At this time, we turn to Senator Lee for his comments. 
3 

STATEMENT OF HON. MIKE LEE, A U.S. SENATOR FROM UTAH 

Senator LEE. Thank you very much, Chairman Kohl. Hundreds 

of millions of Americans pay for cell phones, cable television, home 

Internet connections, and for home landline connections to the telephone network. In fact, there are over 320 million wireless subscriber connections in the United States, meaning that there are 

more cell phone contracts than there are people in the United 

States. 

Over 100 million households have cable-video service, and nearly 

50 million pay for high-speed cable Internet. So the announcement 

late last year of commercial agreements between four of the country’s largest cable companies and the country’s largest wireless 

phone services company understandably attracted some attention. 

These agreements include the sale of wireless spectrum to 

Verizon Wireless from a group of cable companies, most of which 

had purchased the spectrum in 2006 and were not using it at the 

time. 

In separate agreements announced on the same day the cable 

companies and Verizon Wireless agreed to potential marketing arrangements for each other’s products. For each Verizon Wireless 

contract obtained through cable marketing, Verizon will pay the 

cable company a commission of a few hundred dollars, and vice 

versa. 

The companies have also agreed to fund a joint research and development project. And these agreements provide cable companies 

a future option of renting from Verizon the necessary inputs to create their own wireless cell phone offerings. 

Since these deals were announced, competitors of Verizon Wireless and the cable companies, as well as consumer advocate and 

public interest groups, have voiced a number of concerns. Some 

have argued that the wireless market is tending toward a duopoly 

and that additional spectrum should be sold only to smaller wireless service providers. 

Others have argued that the Federal Communications Commission current spectrum screens, which are not implicated by 

Verizon’s spectrum acquisitions, except in a few distinct localities, 

do not sufficiently account for the value of spectrum holdings and 

should be changed. 

Critics of the joint marketing agreements fear that Verizon Wireless’ parent company, which owns Verizon VIAS, a fiber optic offering providing cable, phone and Internet services on a combined 

basis, will no longer compete as vigorously with the cable companies. They also worry over the potential competitive implications of 

the companies’ joint venture and speculate that its resulting products and technology may give the member companies an undue advantage in the marketplace. 

It needs hardly be said that competition is essential to consumer 

welfare in the wireless and cable industries, just as it is elsewhere. 

The competitive state of the wireless market has recently received 

a lot of attention, including a hearing in this Subcommittee on the 

proposed merger between AT&T and T-Mobile, which the companies were forced to abandon late last year. 

The competitive state of the cable and video industries is likewise worthy of consideration, both in the course of today’s hearing 
4 

and as part of future Subcommittee discussions. The concerns expressed by critics of the agreements between Verizon Wireless and 

the cable companies highlight important issues facing these industries, and I am hopeful that this hearing can help shed some light 

on the proper role of government in this context. 

With respect to the wireless spectrum, consumer demand for 

data has exploded and continues to increase at exponential rates. 

Some estimates suggest that data traffic will surge to as much as 

18 times current levels in the next few years alone. Particularly because government agencies have been slow to free up unused spectrum and make it available in the marketplace, many analysts fear 

an increasingly severe spectrum crunch. 

Given this context, we must give significant weight to efficiencies 

that will result from the Verizon acquisition, including the substantial benefit of putting previously fallow spectrum to use by a highly 

efficient wireless network. Although this scarce and limited resource is overseen and administered by government agencies, regulators must take care to incentivize productive use of spectrum and 

must not punish private enterprise for government mismanagement. 

With respect to the joint marketing agreements, I believe we 

ought to pay close attention to the relevant business incentives at 

play. Perhaps the most important question in this regard is whether the joint marketing agreement signed by Verizon Wireless does, 

in fact, interfere with the motivation and the ability of its parent 

company to propagate VIAS. If the deal leaves Verizon’s incentives 

with respect to VIAS unchanged, the agreement may be seen as 

pro-competitive, enhancing consumer choice in the form of new 

quadruple-play service. 

Absent evidence of anti-competitive conduct, the companies’ joint 

venture and agreement allowing cable companies to brand their 

own wireless service offerings may likewise be seen as primarily 

pro-competitive deals that encourage innovation through collaborative research and development of new technologies and new services. 

Throughout our consideration of these agreements, we should remember that the purpose of our antitrust laws is simply to maximize consumer welfare. Although antitrust law, by its very nature, 

is forward looking, unmoored speculation must not be allowed to 

overtake rational economic analysis. Government may sometimes 

have a proper role in ensuring that businesses fairly compete and 

do not collude, but it is improper for government agencies to pick 

winners and losers in the marketplace or to run interference with 

private enterprise where robust market forces are in operation. 

I look forward to hearing from each of the witnesses and thank 

them for their cooperation and joining us today. 

Thank you, Mr. Chairman. 

Senator KOHL. Thank you, Senator Lee. 

I would call our first panel witnesses. First to testify today will 

be Randal Milch. Mr. Milch is Executive Vice President and General Counsel of Verizon, a position he has held since 2008. 

Our next witness to testify will be David Cohen, Executive Vice 

President of Comcast Corporation. Mr. Cohen joined Comcast in 

2002. 
5 

Next, we will be hearing from Charles Rule. Mr. Rule is the managing partner of the Washington office and head of the antitrust 

group at Cadwalader, Wickersham & Taft. He served as assistant 

attorney general in charge of the antitrust division at the Department of Justice under President Reagan. 

Next to testify will be Steven Berry, President and CEO of the 

Rural Cellular Association. Mr. Berry has also served as senior vice 

president of government relations for the National Cable and Telecommunications Association. 

Our fifth witness today will be Joel Kelsey. Mr. Kelsey is a policy 

advisor at Free Press; he previously worked as a policy advisor for 

Consumers Union. 

Finally, we will be hearing from Timothy Wu, Professor of Law 

at Columbia University. Before that, Mr. Wu served as senior advisor at the Federal Trade Commission, and he is the author of several publications, including books, ‘‘The Master Switch’’ and ‘‘Who 

Controls the Internet? ’’ 

We thank you all for appearing here before the Subcommittee. I 

ask you now to stand and raise your right hand as I administer the 

oath. 

[Witnesses sworn.] 

Senator KOHL. Thank you. So we will start with you, Mr. Milch. 

And, gentlemen, please keep your testimony to about five minutes 

or less. 

Thank you, Mr. Milch. 

STATEMENT OF RANDAL S. MILCH, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, VERIZON COMMUNICATIONS, INC., NEW YORK, NEW YORK 

Mr. MILCH. Thank you, Chairman Kohl. And good afternoon to 

you and Ranking Member Lee and the other Members of the Subcommittee. 

I wish to make three points this afternoon, and then I’d be happy 

to respond to your questions. 

First, it’s critical that this previously unused spectrum be put to 

use to meet customers’ growing needs in the mobile broadband 

economy. Mobile broadband is a continuing bright spot in our national economy, and it’s built on investment in facilities and networks, startling daily innovation in applications, and widespread 

societal benefits. 

But it’s no secret that we’re currently in a critical situation. Customer demand for mobile bandwidth is growing faster than currently available spectrum. Customers using data-intensive devices, 

like iPads, iPhones, tablets, as well as data-intensive applications, 

like streaming video and audio, are driving the need for more spectrum. According to public estimates, total smart phone traffic in 

2015 will be 25 to 50 times greater than it is today, and the FCC 

predicts that if additional spectrum is not made available in the 

near term, mobile data demand will likely exceed capacity by 2014. 

From Verizon’s own perspective, on our networks, data usage has 

been doubling each of the last three years and we expect that trend 

to continue going forward. In some of our largest markets, the spectrum crunch will come as soon as 2013 and start hurting our cus-
6 

tomers and your constituents who expect and demand high-quality 

service. 

Finally, I would note that one thing has been true about all data 

estimates—they have been underestimates. The spectrum purchase 

will allow us, in the short term, to meet our customers’ growing 

needs. 

Second, allowing Verizon Wireless to purchase this spectrum and 

build it and invest in it is a good reallocation of an important asset. 

Verizon is a good steward of spectrum. We put it to use, and we 

do it more efficiently than anyone else in the United States. 

As this chart demonstrates, Verizon Wireless serves more customers per megahertz of spectrum than any other carrier in the 

United States, despite the huge growth of data traffic from smart 

phone usage. 

For example, Verizon Wireless, which is here on the right, serves 

over 1.2 million customers per megahertz of spectrum; and, for instance, T-Mobile, which is right here, serves 660,000 customers per 

megahertz of spectrum. 

Verizon Wireless is almost twice as efficient as T-Mobile. And I 

want to point out that we are not seeking to buy this spectrum 

without already having taken other expensive steps to best use the 

spectrum we already have. We have spent $22.3 billion over the 

past three years, $8.3 billion alone in 2011, on our network, and 

that’s more than any other wireless provider in the United States. 

Roughly half of that spend has been investments to increase our 

capacity within our existing spectrum limits by numerous engineering techniques, such as cell splitting and denser cell site deployment. 

Now, of course, these engineering techniques are available to any 

carrier who chooses to invest in them, but I would also point out 

that we do not believe that we can engineer our way out of the 

spectrum crunch. More spectrum is necessary. 

I would also push back on the notion that Verizon Wireless is 

somehow taking more than its fair share of available spectrum. 

After acquiring this additional spectrum, our holdings in nearly all 

geographic areas will remain below the level where the FCC has 

said that no further competitive inquiry is necessary, because there 

is clearly no competitive harm. 

This is the so-called ‘‘spectrum screen,’’ which identifies areas 

where there’s competitive concern. Ninety-eight percent of the 

counties involved here fall below the spectrum screen. 

Third, let me talk for one second about the separate cross-marketing agreements. I fully believe they will be good for consumers 

in the competitive marketplace by providing them more choice. 

Let me explain why we did this. Verizon’s award-winning FiOS 

service has always been intended to reach a relatively small portion of the country. As this chart indicates, Verizon FiOS, here in 

the blue, hugs the east coast largely, a small bit in Florida, Texas, 

and in southern California. 

This represents our current build, which is about 80 percent of 

the total FiOS build that we had intended to begin in 2005 and announced in 2009 was going to be our FiOS build. 

Now, on the other hand, Verizon Wireless provides service across 

the country, which is provided in this chart. This is our 3G foot-
7 

print, our current footprint, but our 4G footprint will match this by 

the middle of the next year when we finish building out our highspeed 4G bandwidth service. 

So what we needed to do was figure out a way to ensure that 

Verizon Wireless, which covers the entire country, would have the 

ability to be part of bundles and of wireless and wire line services 

in the parts of the country where FiOS didn’t exist. 

We also wanted to be able to compete in the innovation race and 

tried to create new technical capabilities to allow customers to 

more seamlessly use mobile and wired broadband products. That’s 

what these various agreements do. Verizon Wireless and the cable 

companies will have the ability to act as sales agents for one another. They will not control the price of the input. So the cable 

companies don’t control the price of the Verizon Wireless service 

and Verizon Wireless doesn’t control the price of the cable service. 

They merely sell it for a one-time agency commission. 

There are thousands of such agency commissions in the marketplace today. Verizon Wireless has over 1,000 itself. They’ve never 

attracted any anti-competitive attention. 

The companies also have created a joint venture in order to try 

to produce this new product. We don’t have it yet. If we do have 

it, it will be successful only if the marketplace deems it so. 

Finally, let me dispel the notion that Verizon would somehow 

disadvantage FiOS in this transaction. FiOS is one of the largest 

investments by a private company in the last decade in this country, $23 billion invested to do this. We have only just recently 

begun to see positive cash-flow out of this investment. It’s important for us to continue it and there will be no stopping it, because 

it’s a superior product that customers like and that we are going 

to push as hard as we can. 

Thank you very much for your time. I’d be happy to answer your 

questions. 

[The prepared testimony of Mr. Milch appears as a submission 

for the record.] 

Senator KOHL. Thank you, Mr. Milch. 

Mr. Cohen. 

STATEMENT OF DAVID L. COHEN, EXECUTIVE VICE PRESIDENT, COMCAST CORPORATION, PHILADELPHIA, PENNSYLVANIA 

Mr. COHEN. Thank you, Mr. Chairman and Members of the Subcommittee. It’s a pleasure to be back in this room, and I thank you 

for the opportunity to testify today on the substantial benefits consumers will realize from SpectrumCo’s sale of spectrum to Verizon 

Wireless and the reseller, technology joint venture, and joint marketing agreements the companies entered into in this transaction. 

Because Mr. Milch from Verizon has really fully covered the 

spectrum aspects of the transaction, I’m going to focus on the commercial agreements. So the commercial agreements at issue here 

are ordinary and customary, market-standard agreements. There is 

no merger here, like there was in AT&T/T-Mobile. There is no acquisition of customers or of ongoing business operations. Not one 

competitor will be removed from the marketplace as a result of this 

transaction. 
8 

Let’s break those commercial agreements down into the three 

types. The reseller agreements will allow us to become a mobile 

virtual network operator, an MVNO, and offer consumers our own 

unique branded wireless services. 

The FCC consistently has acknowledged the benefits that resellers can provide to consumers. The government has never insisted on preapproving such agreements. In fact, it has encouraged 

and even compelled them in certain transactions. They are a slamdunk win for consumers. 

The technology joint venture will lead to more innovation as we 

develop amazing new technologies that will offer consumers the 

ability to use all of their communications devices and services 

seamlessly across multiple platforms. This innovation will compete 

with other innovation already occurring in the marketplace. Joint 

ventures such as these have also been viewed favorably by the government. 

The agency agreements allow us immediately to begin selling 

Verizon Wireless services as part of multi-product bundles, and 

they also allow Verizon Wireless to do the same. There are many, 

many examples of our competitors entering into similar agency 

agreements to offer multi-product bundles. 

The latest example is the announcement by AT&T and DirecTV 

of an agency agreement at the end of last year. Again, so far as 

we are aware, the government has never questioned or challenged 

any of these agreements. 

Contrary to certain parties’ claims, these agreements will not affect Verizon’s or the cable companies’ incentives to compete vigorously against each other. Such claims ignore basic business realities. 

Initially, please remember that Verizon Wireless and Verizon are 

separate companies, with Verizon owning 55 percent of Verizon 

Wireless. As a matter of simple business economics, as Mr. Milch 

just testified, Verizon is hardly going to walk away from its $23 billion investment in FiOS, which generates 61 percent of its consumer wireline revenues today. 

Second, it is important to note that there is no FiOS overlap with 

the cable company partners of SpectrumCo—it’s an analog to that 

chart—in over 85 percent of our collective footprint nor is there any 

incentive for Verizon to lay down its weapons in the fierce FiOS/ 

cable battle in the remaining 15 percent of the country. 

Put yourself in Verizon’s position. Would you rather hold on to 

an existing or attract a new FiOS subscriber worth thousands of 

dollars in ongoing monthly subscription fees, or would you rather 

get 55 percent of a one-time commission worth, at most, only a few 

percentage points of the value of a FiOS customer? This isn’t even 

a close call. 

Arguments that are predicated on the idea that this set of agreements will encourage Verizon not to expand its FiOS footprint or 

discourage the cable companies from entering the wireless marketplace ignore clear market realities. Verizon announced over two 

and a half years ago that it did not intend to build FiOS out to additional areas of the country outside of its existing franchise areas, 

and the cable companies have made a considered business decision 

not to build a new wireless network. 
9 

Speculative claims that ignore the reality of considered business 

decisions are not what the antitrust laws were intended to address. 

Finally, and with all due respect, opposition by some of our competitors should also be seen in its proper context. What they are 

really concerned about is that our agreements will increase competition and compel them to respond accordingly. 

The antitrust laws, however, are designed to protect competition, 

not to insulate competitors from having to respond to competition. 

In our view, the proper focus here should be on the consumer. And 

for the consumer, these agreements are entirely additive—more 

choice, more competition, more investment, and more innovation. 

So thank you for the opportunity to testify, and I look forward 

to answering your questions. 

[The prepared testimony of Mr. Cohen appears as a submission 

for the record.] 

Senator KOHL. Thank you, Mr. Cohen. 

Mr. Rule. 

STATEMENT OF CHARLES F. RULE, MANAGING PARTNER, 

WASHINGTON, DC, OFFICE, CADWALADER, WICKERSHAM & 

TAFT, LLP, WASHINGTON, DC 

Mr. RULE. Thank you, Mr. Chairman, Senator Lee, and Members 

of the Subcommittee. It’s an honor to be invited to discuss with you 

the antitrust aspects of the Verizon Wireless/cable deals. 

The views that I am expressing today are mine and mine alone. 

I have no clients involved in this transaction or really have any interest in it one way or the other. And until I was invited to come 

here today to talk to you, I hadn’t spent that much time thinking 

about the transaction. 

As a consequence, my analysis is based on a review that I’ve 

been able to do over the last few days of the principal filings made 

with the FCC and then consideration of those arguments for and 

against the deal. 

My analysis, such as it is, has been provided in written form to 

the Committee and I won’t dwell on it, but I will summarize it. 

The analysis is strictly through the lens of the antitrust laws. 

There may be and seem to be other arguments made at the FCC, 

but they are not necessarily antitrust issues. 

The antitrust lens is shaped by three core principles. First, the 

antitrust laws are, the Supreme Court has said, a consumer welfare prescription. A merger, acquisition or collaboration is ultimately judged by whether, on balance, it is likely to increase quality-adjusted total output. 

Second, private mergers and acquisitions are critical to a dynamic economy and facilitate the movement of assets from lowerto higher-valued uses. While due to factors such as market structure, the position of the parties and so forth, a very small fraction 

of such deals may threaten harm to consumer welfare. Antitrust 

should not unduly interfere with or raise obstacles to the market 

for the flow of assets. 

Third, short of an M&A transaction, collaboration among firms, 

even competitors, is critical to the economy and generally holds the 

potential for increasing consumer welfare. Sure, under certain circumstances, collaboration can threaten consumer welfare and com-
10 

petition, but the antitrust laws are sensitive to the welfare-enhancing promise of collaboration. 

Ultimately, the antitrust analysis of any transaction, including 

this one, is heavily dependent on the relevant facts surrounding 

the particular transaction. Gathering those facts and examining 

them under the antitrust lens is currently underway at the Department of Justice, and I would imagine that that will continue for 

several months more. 

Given my limited time and access to the facts, I’m able to reach 

only tentative views about the agreements. Based on those constraints, let me briefly summarize my tentative views on three aspects of the deal—Verizon Wireless acquisition of the cable companies AWS spectrum licenses, the commercial collaboration agreements between Verizon Wireless and the cable companies, and the 

R&D collaboration between the parties. 

First, with respect to the acquisition of spectrum, the cable companies have never developed that spectrum. They’ve never gotten 

into the business of competing for wireless service on a facilities 

basis. 

Moreover, in the absence of the transfer, the spectrum that they 

hold will continue to generate zero wireless service for the foreseeable future. As a consequence, Verizon Wireless acquisition of that 

spectrum will not eliminate any existing competition. 

Moreover, Verizon Wireless claims to have a roadmap for the use 

of the spectrum to generate 4G LTE service in the next three years 

or so. So the transaction appears to increase output. 

The fact that opponents can conjure up that there may be some 

conceivable alternative deal that will increase output even more is 

not, under existing antitrust law, a basis to challenge the transaction. 

Second, the commercial agreements. Those I have an interest in, 

I actually happen to be a happy, satisfied customer of FiOS. So I 

am concerned, like everybody else should be, as to whether or not 

these agreements are going to impact that competition. 

However, looking at the deals that are fairly standard commercial agreements, the structure and economics of them do not appear 

to materially impact either the cable companies’ incentives to go 

into facilities-based wireless communication or Verizon’s incentives 

and ability to continue to compete with FiOS. 

However, it’s important for the department, as they look at these 

transactions, to make sure that there are adequate safeguards to 

prevent anti-competitive spillover. 

Last, with respect to the cable/wireless collaboration on innovation, it seems to me, on its face, this collaboration raises little concern. Joint R&D is treated favorably by the antitrust laws, and the 

consortium will face vigorous competition from others. 

The basis of my views is, as I said, provided in the written submission. I hope it’s of help. 

Mr. Chairman, that concludes my remarks and I look forward to 

any questions that the Committee may have. 

[The prepared testimony of Mr. Rule appears as a submission for 

the record.] 

Senator KOHL. Thank you very much, Mr. Rule. 

Now, we will hear from Mr. Berry. 
11 

STATEMENT OF STEVEN K. BERRY, PRESIDENT AND CEO, 

RURAL CELLULAR ASSOCIATION, WASHINGTON, DC 

Mr. BERRY. Thank you, Mr. Chairman. Chairman Kohl, Ranking 

Member Lee, and Members of the Subcommittee. Thank you for the 

opportunity and inviting me to testify before this Committee about 

the proposed spectrum transfer and integrated commercial agreements between Verizon Wireless and the cable companies. 

These transactions will further cement Verizon’s dominant control over every input and resource critical to provide mobile 

broadband services to the detriment of every other smaller competitor. 

Mr. Chairman, the RCA, the competitive carriers’ association, 

represents over 100 wireless carriers. You might recognize Celcom 

if you’re from Wisconsin or Union Wireless Telephone if you’re from 

Utah, and Duet Wireless if you’re from St. Cloud, Minnesota. But 

I think you’ll also recognize some of the other names, T-Mobile, 

Sprint, Metro PCS, Cricket, US Cellular, Alltel, Cincinnati Bell, C 

Spire, and I Wireless. 

All have come together at RCA because of the dangerous pattern 

of consolidation in the once-competitive wireless industry. There 

used to be the big four. Now, we talk about the big two, the twin 

bells, the duopoly of Verizon and AT&T. 

It’s difficult to explain the potential impact of this deal without 

getting bogged down into the minutia of spectrum policy. However, 

I must say that the Verizon/cable deal is elegantly contrived, is superbly clever, and very difficult to deconstruct. But it will deliver 

the same insidious and disastrous impact on competition, and, unless conditioned, would not be in the public interest. 

Because of the massive consolidation and the dominant control of 

all inputs into the mobile services, RCA filed a petition to condition 

this deal to allow competitive carriers an opportunity to access 

spectrum, back-haul, and ensure data roaming and interoperability. 

This deal is not about price, except maybe perhaps higher prices 

for consumers. And these arrangements are integrated transactions. This is about control of the market share, and the deal is 

effectively a non-compete agreement. Verizon will not compete with 

cable on the wire line service side and cable will not compete 

against Verizon on the wireless side. 

Over 60 million households will immediately be affected by this 

deal on the wire line side and far greater on the wireless side. If 

this were only about spectrum price, higher prices could be commanded in the marketplace by multiple carriers starved for green 

field spectrum. Verizon owns substantial spectrum reserves, as 

much as 44 megahertz of unused spectrum in most markets currently. And if this deal is approved, they could warehouse as much 

as 72 megahertz of unused spectrum in many of the top markets. 

And the Verizon heat map before you over here shows their holdings and their superior position. 

These companies, all products of decades of state-sanctioned monopoly, have figured out a way to guarantee and solidify market 

share in their respective areas. This is not in the public interest, 

and it certainly impacts market conditions contemplated by the 

Clayton Act. 
12 

Spectrum is a finite and unique taxpayer resource. And make no 

mistake about it, manipulation of spectrum resources is, unfortunately, a reliable and effective tool to eliminate competition. Spectrum is the lifeblood of the wireless industry. You cutoff the lifeblood and the heart does not pump for long. 

The Verizon/cable team wants you to believe that this is merely 

about a spectrum transfer, a license transfer, albeit the largest single spectrum license transfer the FCC has ever considered, covering approximately 280 million consumer pops and spanning almost the entire United States, as the map before you shows. 

This is the equivalent of eliminating a national carrier in the 

marketplace or, in this case, it does eliminate four potential wireless competitors. 

RCA did not file a petition to deny. We filed a petition to condition this transaction. The very considerations that forced cable to 

exit the wireless industry must become transaction conditions if we 

are going to promote a competitive industry and avoid additional 

regulation. 

In summary, Mr. Chairman, in their own words, Comcast, Cox, 

and the SpectrumCo members provided us with an excellent roadmap of the conditions needed for a competitive wireless market. 

Clearly, the deal must be conditioned by significant spectrum 

divestitures under an updated spectrum screen; commercially reasonable roaming requirements; affordable and available back-haul; 

and interoperable standards. Denying competitive carriers an opportunity to access these critical inputs is denying their ability to 

survive. 

Mr. Chairman, America’s competitive telecom policy should not 

be relegated to the mantra—if you can’t beat them, join them. 

I’ll be more than happy to answer your questions. 

[The prepared testimony of Mr. Berry appears as a submission 

for the record.] 

Senator KOHL. Thanks, Mr. Berry. 

Now, we will hear from Mr. Kelsey. 

STATEMENT OF JOEL KELSEY, POLICY ADVISOR, FREE PRESS, 

WASHINGTON, DC 

Mr. KELSEY. Chairman Kohl, Ranking Member Lee, and esteemed Members of the Committee, thank you for the opportunity 

to testify before you today on behalf of Free Press. 

In my testimony, I plan to cover three topics. First, I’d like to 

provide a consumer perspective on the consolidating telecom market in which these deals are being proposed; second, I’d like to explain what it means to put this much control over our Nation’s 

spectrum market into the hands of one company; and, last, I’d like 

to explain how the joint marketing arrangements would leave 

many of our Nation’s households facing monopoly conditions in the 

market for residential Internet access. 

We’ve heard a lot about the spectrum crisis, but today I’d like to 

point out we have an equally large competition crisis. This is a crisis that consumers are already facing today as they get locked into 

more expensive multi-year bundles, while competitors are locked 

out of entering the marketplace to offer better alternatives. 
13 

The market for wireless service is concentrated at the top, with 

Verizon and AT&T together controlling nearly 65 percent of the 

market share and capturing nearly 80 percent of the entire wireless industry’s profits. To put this in perspective, this dwarfs the 

level of concentration that we see in the oil, banking, or airline industry. 

The market for at-home broadband service has long been a duopoly, and FCC data predict that most American households will 

have no other choice than their cable company for next-generation 

Internet access. These trends have real consequences for consumers. J.D. Power reports the average wireless bill in 2011 was 

$86. That’s a 25 percent increase in just the last four years. 

The central theme that I’d like to get across here today is that 

these market conditions will be made much worse if this deal is approved. For example, this deal will result in AT&T and Verizon 

controlling a combined 60 percent value share of all mobile 

broadband spectrum in America. 

The benefit here for Verizon is not just in using the spectrum. 

It is also in foreclosing other companies from using this critical resource to challenge Verizon’s market dominance. 

Not all spectrum is created equal. The more high-quality spectrum a carrier controls, the more market power it has, making it 

easier to mount a competitive challenge. 

Put simply, with better spectrum, cell towers can carry signals 

for longer distances, so fewer towers are needed. So for a dominant 

firm like Verizon, with more spectrum depth than any of its competitors, acquiring more spectrum is not the only way to meet 

growing consumer data demand. Verizon could continue to build 

more towers, conduct spectrum swaps in congested areas, or use 

Wi-Fi offloading to carry traffic. Acquiring more spectrum is, however, the best way to ensure competitors cannot mount a serious 

challenge by using that spectrum to offer high-quality services at 

lower prices. 

If Federal regulators are serious about protecting the public interest, they must act to preserve the limited amount of competition 

in the wireless market that exists today, and that starts with denying this license transfer. 

The spectrum sale is enough to tilt this transaction against the 

public interest in the wireless market. However, the joint marketing arrangements will also exacerbate consolidation in the residential broadband market. 

These agreements simply represent a deal between these companies to stay out of each other’s way in perpetuity. They put former 

rivals on the path to collaboration rather than competition, and 

they send a clear signal to Wall Street that the largest cable and 

wireless companies in America are aligned together, and it will be 

nearly impossible for any competitor to mount a viable threat in either market. 

Congress recognized the danger in these sorts of arrangements 

when it passed the 1996 Telecom Act. That Act specifically bans 

local telephone companies and cable companies joining forces. 

That’s because Congress intended to encourage competition between cable and telephone companies, competition that would be 

eliminated through these agreements. 
14 

For example, these agreements eliminate the incentives for 

Verizon to aggressively market its fiber to the home broadband 

service in markets where it competes head-to-head with cable companies. Competition benefits consumers when companies are trying 

to win subscribers from their competitors, not when they are offering to sign up their own customers for their rival’s services. 

In conclusion, I’d like to point out that the consolidation that 

we’ve been experiencing is no accident. It is not the hand of the 

free market. Rather, it’s the outcome of public policy decisions that 

have unwound protections on competition and placed a disproportionate amount of our Nation’s most valuable spectrum into the 

hands of just two companies. 

There is no reason this pattern of poorly protecting the public interest has to continue. The DOJ and the FCC showed immense analytical skill and political courage in rejecting the AT&T/T-Mobile 

merger. And if that was the down payment on future competition, 

preventing this proposed transaction should be the next installment. 

Thank you very much. I look forward to your questions. 

[The prepared testimony of Mr. Kelsey appears as a submission 

for the record.] 

Senator KOHL. Thank you, Mr. Kelsey. 

Now, Professor Wu. 

STATEMENT OF TIMOTHY WU, ISIDOR & SEVILLE 

SULZBACHER PROFESSOR OF LAW, COLUMBIA UNIVERSITY, 

NEW YORK, NEW YORK 

Mr. WU. Thank you, Mr. Chairman, Senator Lee, and Members 

of the Subcommittee. 

Does support for robust competition remain the communications 

policy for the United States? 

It may sound like a rhetorical question, yet it is the right question to ask as we witness increasing concentration in every single 

communication market, including the prospect of a de facto duopoly 

in wireless communications. 

This was the same question that this Committee faced—the Subcommittee faced—when it addressed the AT&T/T-Mobile merger 

last year. And it’s the same question raised by the sale of spectrum 

and the marketing agreements that we examine today. 

As compared to the spectacle of T-Mobile and AT&T, Verizon’s 

softer strategy may seem like a sideshow, but subtle action is often 

the more powerful, particularly in the distracted age. 

Verizon holds more valuable spectrum than anyone else and 

should it complete this transaction, it will actually be left with 

spectrum holdings that are, by book value, even larger than AT&T 

and T-Mobile would have been. 

Yes, AT&T’s challenge to competition was feckless and loud, but 

Verizon’s deal affects the very competitive structure of the communications industry. This transaction, and others that are like it, 

does not threaten to be the single grand coup that ends competition 

in our time. The danger rather is the prospect of a creeping duopoly in wireless and a quiet end to the contest once thought to be 

the most important to the consumers of all, namely, competition for 

last mile access. 
15 

That is why the Federal Communications Commission must examine this transaction just as closely as it did the AT&T/T-Mobile 

merger. 

The usual dangers of excessive concentration are well known— 

higher prices, poor customer service, and, over time, a kind of depressing stagnancy. But I would like to highlight the particular 

dangers to innovation that are the likely byproduct of non-competition between Verizon and the main cable companies. 

I’m going to make two quick points. First of all, I want to point 

out that communications policy, not antitrust law, is the appropriate lens for addressing this transaction. The reason is that spectrum belongs to the public and it is the government’s role to make 

sure that the asset of the public is used properly. 

The Commission cannot sit idly by, as it were, and say that nature is taking its course when the government has such a central 

intrinsic role of deciding what competition is in this industry. On 

an ongoing basis, the Commission needs to decide whether more 

competition or more concentration will be better for the people of 

the United States. 

If the Commission truly believes that greater concentration, in 

this case, in the wireless industry serves the interest of the American public, it is free to make that choice. Congress, similarly, is 

free to pass a law that supersedes the 1996 Telecom Act and remove competition as the policy of the United States. 

But if we take these actions, we owe it to the public to explain 

that we are changing the communications policy of the United 

States from a policy of competition and back toward something 

along the lines of regulated monopoly or regulated duopoly. 

Second, I want to point out that over the last decade, Verizon has 

been the clearest and strongest competitor to the cable industry, 

and what we face here is the prospect of the elimination of that 

competition. I don’t want to simply focus on the FiOS arrangement, 

which I think is important, but not the only thing at issue here. 

What is at issue is the future of disruptive innovation. That is 

to say, the innovations we don’t understand right now, but the innovations that could potentially undermine the stranglehold that 

cable has over the viewing habits of the American public. 

Consider, for example, something we haven’t discussed much, 

which is 4G broadband to the home. PC Magazine wrote, ‘‘The mobile broadband service that has the best chance of being a true 

cable replacement is Verizon’s new 4G LTE service. The firm has 

an admirable home fusion product it just launched which shows 

much promise.’’ 

But the fact is that 4G is a cable replacement, not a complement. 

It is not clear how selling a cable replacement can be consistent 

with promoting cable’s products at the same time. 

Thank you very much, and I welcome any questions you have. 

[The prepared testimony of Mr. Wu appears as a submission for 

the record.] 

Senator KOHL. Thank you, Professor Wu. 

We will now start our questions in seven-minute rounds. 

Mr. Milch, the vision of the landmark 1996 Telecommunications 

Act was that the phone companies and cable companies would, for 

the first time, compete with each other in each other’s markets. 
16 

In the last few years, we have seen this vision on its way to 

being realized, particularly with Verizon FiOS, which offers consumers high-speed Internet connections and video in direct competition to the cable companies. FiOS has grown to be a strong 

competitive rival to cable, recently capturing market shares of 29 

percent for FiOS TV and 33 percent for FiOS Internet in its service 

areas. Even outside the areas where Verizon has deployed FiOS, 

Verizon competes with cable for connections to the Internet and 

landline phone service. Consumers reap the benefits of this competition each and every day. 

Now, many are concerned that the joint marketing agreements 

represent a truce between these fierce rivals. Under the marketing 

agreements, cable company representatives will be in Verizon 

Wireless stores selling the very cable products that Verizon competes against, and Verizon Wireless will realize a commission for 

every cable product sold. 

So, Mr. Milch, what does this deal mean for the future of competition between Verizon and the cable companies? How can we expect you to compete as vigorously against cable when your subsidiary, Verizon Wireless, is partnering with these cable companies? 

We know you argue that you will not end your FiOS service for 

merely a commission of a few hundred dollars. But the question 

here is the level and vigor of competition. 

How do we know that you will maintain your same level of price 

competition and promotion or will not instead pull your punches in 

competing with the cable companies? 

Mr. Milch. 

Mr. MILCH. Thank you, Senator—I mean, Chairman Kohl. Thank 

you for the question. 

Just to reiterate, these various agreements are between the cable 

companies and Verizon Wireless, not with the parts of Verizon that 

provide our FiOS service, our landline service. 

Number one, I think it’s just important to know what the square 

corners of the agreements are so that we’re clear on that. Verizon 

FiOS, which is part of our telecom part of Verizon, is going to vigorously compete, Senator, because its primary goal is to continue 

to provide the best level of service it can and extend its reach within its franchise areas, which have already been set out, and provide 

a world-leading service, a service that we believe beats cable because it’s superior. 

And we want to continue to provide that service, Senator, because of the economics that you pointed out. It doesn’t make us— 

there is no rationale for saying that you’re going to go halfway if 

you want that sale, and that sale of FiOS is the clear winner, from 

a financial services—from a financial perspective. 

So a half-baked effort would leave you without that sale and 

would have—redound negatively to our bottom line. 

All the financial impetus is to compete vigorously. Verizon 

Telecom spends hundreds of millions of dollars a year advertising 

FiOS services where it’s available. They’re going to continue to 

spend hundreds of millions of dollars a year selling those services, 

and we will continue to compete vigorously, because it’s a superior 

product. 
17 

Senator KOHL. Mr. Milch, in an interview with Politico two 

weeks ago, Mr. Cohen of Comcast stated that, quote, ‘‘Within the 

FiOS footprint, all we have agreed is that Verizon Wireless stores 

will be Switzerland. They can sell Comcast products and they can 

sell FiOS products. There is no favoritism,’’ quote. 

But until now, Verizon and Comcast have been fierce rivals 

where you overlap. Now, Mr. Cohen says your wireless subsidiary 

stores will be like, quote, ‘‘neutral Switzerland.’’ 

Is this not another way of saying the competitive battle, if not 

entirely over, is, for the most part, over? 

Mr. MILCH. Senator, no, I disagree. Right now, our Verizon Wireless stores don’t sell FiOS. They don’t sell anything on the landline 

side. So they are already—the status quo is that they don’t sell any 

landline services. 

If, in fact, we end up with a situation in which those in-region 

stores, those FiOS in-region wireless stores provide—sell landline 

services and do it neutrally, then there will be both wire line services there. 

Neutrality is also achieved, Senator, I might add, by selling neither. So it’s entirely possible that those wireless stores within the 

FiOS perimeter will not sell either service and the status quo will 

be absolutely the same. 

Senator KOHL. All right. 

Mr. MILCH. We market FiOS through the—not through those 

stores. 

Senator KOHL. Mr. Cohen, what did you mean by saying Verizon 

Wireless stores would be like Switzerland? Does that not imply 

that Verizon will not be able to compete as vigorously or will not 

compete as vigorously against you? 

Mr. COHEN. No. Actually, I think Mr. Milch gave the right answer. The full context of that question really was the question of, 

well, if Verizon Wireless stores sell Comcast’s Xfinity product, does 

that give the Xfinity product a leg up on the FiOS product, and the 

answer is no. 

Those stores are like Switzerland and they’re going to become additional battlegrounds for Comcast to compete against FiOS and for 

FiOS to compete against Comcast. And the critical issue here, as 

Mr. Milch said, is right now there is nobody in those stores. 

So a consumer who walks into a Verizon Wireless store doesn’t 

have the option to buy a wireline service from anyone. And once 

we are in the stores, if we are in the stores, Verizon Wireless 

doesn’t control the Xfinity offer that’s in the stores and they don’t 

control the FiOS offer that’s in the stores. 

If we come in and say, ‘‘You can buy a quad-play in the store for 

a $300 Visa card,’’ FiOS could come in and say, ‘‘Well, we’re going 

to sell the bundle at $69.95 instead of $99.95,’’ and then requiring 

us to respond, requiring them to respond. And so that Switzerland, 

if you will, creates a hotbed of potential competition between 

Xfinity and FiOS that does not exist today. 

Senator KOHL. Professor Wu, does the Verizon/cable joint marketing agreement signal a, quote, ‘‘standing down from competition’’ between Verizon and these four cable companies? 

Mr. WU. Mr. Chairman, I am very concerned that it does. You 

can see very clearly it’s in the companies’ interests often not to 
18 

compete. It’s something that the government always has to remain 

vigilant about. And if I were in their shoes, why would you compete 

after this? 

The incentives are for them to cooperate as opposed to compete, 

which is very good for both companies, but it’s not clear that it’s 

good for consumers. 

I want to add one thing. Verizon was saying that at present, 

Verizon Wireless does not sell wireline services, which is true, but 

they do sell a service that competes directly or could compete directly with cable. You can use wireless, 4G wireless, very fast wireless, to offer a competitor to a cable service, to a cable broadband 

service in the home, and they also sell that product and I think 

their incentive to sell that product will be diminished. 

Senator KOHL. Thank you very much. 

Senator Lee. 

Senator LEE. Thank you, Mr. Chairman. And thanks to all of you 

for coming. 

Mr. Rule, first of all, I appreciate you joining us. I understand 

you do not represent any particular business interest in this, and 

I appreciate your willingness to come and testify even in the absence of having such an interest. 

As you know, the primary focus of our antitrust laws is on consumer welfare. So accordingly, in considering the effects of a transaction and the effects that it might have on competition, we have 

to give appropriate weight to any efficiencies that might be produced as a result of that transaction. 

What, if any, efficiencies do you see that could come from this 

transaction and how might those efficiencies translate into some 

kind of benefit for consumers on the ground level? 

Mr. RULE. Senator, as I indicate in the written comments, a form 

of efficiency, if you will, or what efficiency ultimately generates is 

increased output. And anytime you take an asset that—and I view 

the AWS spectrum as an asset, and it’s not being used to generate 

any output, it’s, in effect, inefficient. 

What—and there are certainly arguments, I think Professor Wu 

has made them, that maybe in the hands of the cable companies, 

you couldn’t expect them to be fully developed. I don’t know. I don’t 

think that’s that important. 

What is important is that there’s a market transaction where 

Verizon is willing to pay for it. Verizon has represented, and I’m 

sure that government will find out whether or not that’s an accurate representation in their investigation, that they’re going to take 

that spectrum, they’re going to put it into their network, and it’s 

going to allow them to keep up with demand for advanced 4G service, it may improve the quality of the service that they have. All 

those things, that is, the increased output, the improved quality, 

are very beneficial. 

With respect to the commercial agreements, I’m going to admit 

that I don’t know that those efficiencies knock my socks off. I do 

think that these are agreements that are not unfamiliar to most of 

us out there in the marketplace. 

The real question from the antitrust perspective, though, is what 

sort of impact do those agreements have on the incentives of the 

two parties to compete. And it strikes me, again, as a FiOS con-
19 

sumer, customer, I’m concerned about that. But I think if you look 

at those commercial agreements, it’s just hard to tell a story that 

they really significantly or even materially impact the incentives of 

the companies. 

So to me, that sort of need to get a communications service that 

each doesn’t have on its own to fill in a bundled package makes 

sense. I think it reflects what consumers want, in some cases. But 

what everybody needs to understand is you’re still going to be able 

to get FiOS service directly from Verizon. You’re still going to be 

able to get wireless service directly from the wireless provider. 

As I said, I’m a FiOS customer. I’m a Verizon Wireless customer. 

I bought them in two separate places. And so to me, I don’t think 

the competitive threat of those commercial agreements, when you 

actually look at them, is all that significant. And while there may 

be some benefits, I don’t think it’s incumbent on the parties under 

the antitrust laws to come forward with a lot of efficiencies to justify those sort of standard commercial agreements. 

Senator LEE. And you say the efficiencies do not necessarily 

knock your socks off. Does that mean that—you are not necessarily 

suggesting it is producing inefficiencies. 

Mr. RULE. No. No, not at all. And, again, under the antitrust 

laws, the way they’re structured, if the government or a plaintiff 

wants to challenge a transaction, the burden is on them to show 

that welfare is being harmed, that allocative efficiency, if you will, 

is being reduced, total output is threatened with being reduced as 

a result of the transaction. 

It’s only if you could sort of establish that first that the courts 

will look at efficiencies. So the burden on a party to an agreement 

is not to prove that their transaction will increase efficiency or increase output, it’s really to prove that the transaction will not 

lower output, will not lower efficiency. And so I think that’s the 

issue. 

But, again, they certainly have arguments for where the efficiencies lie in all three of these transactions. As I said, while it 

doesn’t knock my socks off in the commercial agreement, I think 

in the joint R&D, there, there are real possible efficiencies that, 

again, I think Congress has recognized in the National Cooperative 

Research Act of 1984 and elsewhere and recognized that the antitrust laws needed to be sensitive to the potential benefits that joint 

R&D develop, for example. 

Senator LEE. Thank you. Thank you. 

Mr. Milch, one of the chief purposes of the Telecommunications 

Act of 1996 was to encourage increased competition between cable 

companies, on the one hand, and telephone companies, on the other 

hand. 

Some have suggested that FiOS, which competes directly with 

cable in areas where it has been built out, is exactly the kind of 

competition that the Act envisioned and was trying to encourage. 

Now, I understand that Verizon announced in 2010 that it did 

not intend to expand FiOS to areas where it is not already present, 

where it has not already been built out, but some have now expressed concerns that Verizon Wireless’ cross-selling agreement 

will interfere with any remaining incentive that Verizon Communications might have to build out FiOS at some later date and that 
20 

that deal symbolizes, it represents, it signals some kind of an end 

to any competition between FiOS and cable. 

Can you comment on that and on Verizon’s decision not to expand FiOS beyond its current footprint? 

Mr. MILCH. Yes, Senator. Thank you. Verizon made it clear in 

2009, Senator, I believe, that it had reached—that it was near to 

the point of beginning to lower its capital commitment and had 

reached a point where it could see the end of its FiOS commitment. 

It announced then that it was not going to expand beyond the 

18 million homes that were its target. We were very transparent 

with Wall Street and everyone else, because Wall Street punished 

us quite a bit for the massive investment we made in FiOS. That 

massive investment is the investment that we are going to continue 

to seek to recoup by providing the best service we can to our existing and to new customers to hold on and increase that revenue 

stream. 

But the confines of FiOS have been set since the very beginning. 

When we began this in 2005, we had a target in mind. We were 

clear on the target, and we were clear on the amount of money we 

were going to—of our shareholders’ money that we were going to 

commit to this. 

So we owe it to our shareholders, Senator, to give them some return on this. We owe it to our customers to continue to provide 

them a service, that they’re going to want to stay with us. And we 

owe it to our future customers in our franchise areas to continue 

to provide a service that they want us over our cable competitors. 

Senator LEE. It sounds like Mr. Rule will be pretty upset if you 

would go back on that. He will hold you accountable. 

Thank you, Mr. Chairman. 

Senator KOHL. Thank you very much, Senator Lee. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you, Mr. Chairman and Ranking 

Member Lee, for holding this important hearing. Thank you to our 

witnesses. 

I wanted to just start out with one thing that happened today, 

and, that is, Mr. Milch, I want to acknowledge Verizon’s announcement today on the measure that your company is taking to stop 

cramming and the unauthorized phone charges, third-party phone 

charges that appear on bills. 

As you know, I have been long involved in this and have been 

asking this, and the Commerce Committee has been investigating 

this for quite some time. And so I am encouraged that you have 

taken these steps. And I am also going to ask other national phone 

companies, especially the top phone companies that have been engaged in this, to follow Verizon’s lead and protect consumers from 

these fraudulent charges. 

But now back to the topic at hand. I would start out with just 

the issue of bundled services. Almost one-third of American households have cut the cord and rely on the wireless instead of a 

landline. 

Part of the business incentive behind this transaction is that the 

companies that are party to these deals want consumers to subscribe to a bundle of communications services, what we call the tri-
21 

ple play of video, broadband, and traditional telephone service, and 

now a quad-play that also includes a wireless plan. 

On one hand, many consumers like the convenience of one-stop 

shopping, purchasing a bundle of communications services. On the 

other hand, locking consumers into bundled services plans could 

potentially result in less competition, higher rates, and less innovation. 

So I would, I guess, start with you, Mr. Milch and Mr. Cohen, 

and then go over to Mr. Wu and ask—what are the consumer impacts as companies increasingly look to offer triple-play or quadplay bundles of service? 

Mr. MILCH. Senator, thank you very much, first, for the kind 

words. We believe that we’re going to be able to offer consumers 

more choices. So if right now the consumer doesn’t have the choice 

of buying a bundle of services from Comcast that includes Verizon 

Wireless or vice versa and they want that convenience, they can 

get that convenience. 

As I said, it’s important to note that the prices are set not by the 

agent selling it, but by the principal who provides it. 

Second, no one is constrained to buy it in these bundles. These 

are not bundles that are exclusive in some fashion. Verizon Wireless is going to continue to sell through all of its channels. FiOS 

will sell through its channels in its FiOS region, and I assume that 

Comcast is going to vigorously sell across its region. 

So there is nothing to get from this bundle other than convenience or a discount of some sort, but the consumer can choose or 

not choose. 

Senator KLOBUCHAR. Mr. Cohen. 

Mr. COHEN. I will be short and give you plenty of time. I think 

Mr. Milch covers it from the Comcast or cable company perspective. 

The motivation for this transaction was to be able to afford our customers who wanted a quad-play bundle the opportunity to purchase one and to gain the convenience of the single purchase, particularly because our major competitors are going into that space 

and providing their customers with that opportunity; that is, 

AT&T, Verizon, DirecTV through its agency agreement with AT&T. 

And we did not have the opportunity to give our customers that 

particular option. 

So I think it’s about optionality. About half of our customers buy 

a bundle today. The other half do not. And we are all about flexibility and providing our customers with the option to purchase our 

services in the way in which they want to purchase the services. 

So that’s one of the reasons why this transaction increases customer choice, does not take away any optionality, and only improves, I believe, the consumer welfare and benefit, which maybe 

we can’t quantify, but which we can certainly talk about in terms 

of improving customer flexibility and customer optionality. 

Senator KLOBUCHAR. Mr. Wu. Thank you. 

Mr. WU. Senator, thank you for raising the issue of triple or 

quadruple play. The industry loves quadruple play for many reasons, one of which that it means four streams of income. 

But for the consumer, it’s not always so clear that the consumer 

is served by a quadruple play strategy, which can start to migrate 

into something more like a market allocation scheme. 
22 

What the consumer really wants is one play that’s fighting with 

the rest of them. It wants, that is to say, one service to try to start 

to try to compete with and kind of destroy the other three services 

and be the only bill that the consumer needs to get. 

The consumer is served by destructive innovation, not by bundling. And I think the problem with these agreements is they sort 

of foresee, I fear, a perpetual quadruple play, when, in fact, particularly with the advancement of Internet services, eventually one 

service could replace the rest. 

Senator KLOBUCHAR. Thank you. I am going to come back to you, 

Mr. Kelsey, on something else. 

But, Mr. Milch, I am a sponsor of the Next Generation Wireless 

Disclosure Act, a bill that would require wireless carriers to give 

consumers complete and accurate information about their 4G service, including information about minimum data speeds, coverage 

maps, and network reliability. 

When consumers purchase a 4G wireless plan, I believe they 

have a right to know exactly what they are getting. 

What do the joint marketing arrangements mean in terms of the 

transparency and information that consumers can expect to receive 

about their wireless speeds and coverage? 

And then I would ask Mr. Kelsey the same and anything he 

would want to respond to. 

Mr. Milch. 

Mr. MILCH. Senator, first, I applaud the introduction of this. We 

believe it’s a real problem with people passing off faux-G for 4G. 

So we want to try to prevent that. 

As for the effect on these marketing agreements, we don’t believe 

there is any effect in this sense. Whatever the rules are about disclosure, they will follow through to our agents. Our agents are very 

carefully—have to follow all the rules that we have to follow as 

Verizon Wireless. 

So if there are rules about disclosure, they will be followed 

through. So there is no aspect in which these agreements affect the 

utility of your efforts here. 

Senator KLOBUCHAR. Mr. Kelsey. Thank you. Mr. Kelsey. 

Mr. KELSEY. I would say that for the most part, in the telecom 

marketplace, we see that when these companies are making deals 

with one another, there is not the types of incentives that are there 

to try to differentiate their products in ways that are valuable to 

consumers. 

So I would fear a lack of transparency as a result. And I would 

go back to some of the comments that Professor Wu made and that 

were made earlier in the panel, that, specifically, what’s interesting 

with these deals is that the cable companies that jointly own 

SpectrumCo have shown that they really want to get involved with 

the wireless market and offer a 4G service. 

And that’s well and good, but there’s lots of ways for them to do 

that that it isn’t harmful to the competitive environment. They 

could make deals with other wireless carriers that offer a competitive alternative to the dominant AT&T and Verizon. 

With this deal, that threat is removed from the table. And so I 

think the real question here is, do these deals make the prospect 

for competition in the wireless marketplace in particular better or 
23 

worse? We would say no, and, as a result, the FCC should reject 

the license transfer. 

Senator KLOBUCHAR. Thank you very much. 

Senator KOHL. Thank you, Senator Klobuchar. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman, for holding this 

very important hearing. 

Mr. Milch, when you received that phone call a little earlier, was 

that on your Verizon Wireless? 

Mr. MILCH. Yes, sir. 

Senator FRANKEN. Because the ring seemed very, very clear and 

a very good, clear connection. 

Mr. MILCH. It was over a blazing fast 4G phone. 

[Laughter.] 

Senator FRANKEN. And was the call from Brian Roberts? Is there 

any collusion here? 

[Laughter.] 

Senator FRANKEN. No. All right. That was a joke. 

[Laughter.] 

Senator FRANKEN. Mr. Milch and Mr. Cohen, the FCC found in 

its 2011 report on cable industry prices that over a 14-year period, 

cable prices have increased by 134 percent. That means an average 

family used to be paying $22 per month for cable, but as of 2009, 

they were paying $53 per month. 

This is a pretty large increase. That is more than three times the 

rate of inflation, and this was three years ago I am talking about. 

But even more tellingly, the FCC found that cable rates were 

lower in communities where there was effective competition and 

higher in places where there was no real rival operator. 

This is really at the heart of why I am skeptical about this deal. 

It is almost as if your company has gotten a room with the other 

big cable companies and you agreed to throw in the towel and stop 

competing with each other. And I fear that will mean consumers 

will just keep seeing their cable rates rise. 

How can we be assured that will not happen? And, again, this 

is for the two of you. 

Mr. COHEN. I will go first this time. Thank you, Senator 

Franken. And let me respond in two ways, if I can, which is, first 

of all, as in looking at any government report, you can sort of find 

what you want in the report. 

So I don’t want to quibble with the premise of your question except to point out that in the same report, the FCC also concluded 

that the price per channel for cable subscribers had actually declined almost seven percent over the preceding 12-month period. 

And I think in the cable business, we’re looking at providing 

more channels, more high definition—— 

Senator FRANKEN. I am sorry. Excuse me for—— 

Mr. COHEN [CONTINUING]. More choice. 

Senator FRANKEN [CONTINUING]. Being amused. Go ahead. 

Mr. COHEN. So I think—so I actually think that market is 

robustly competitive. I think it has improved quality. I think it has 

lowered price for the consumers. 

In terms of the concern that you have expressed, which I think 

is the legitimate concern and each of the questions have gone to 
24 

this, I’m a believer, at the end of the day, that businesses are going 

to perform primarily in their best economic interest, and there’s 

just nothing in these transactions that is going to stop us from trying to beat the brains out of FiOS, continuing to compete against 

FiOS on quality and on price, and there’s nothing in this transaction that’s going to prevent them from trying to do the same 

thing to us. 

So just look what’s happened since the transaction has been an- nounced. FiOS has come out with a $69.95 a month bundle in a 

chunk of its footprint, reducing the price of its bundle by a third 

in that particular area. 

They have announced a deal with Redbox to provide a new overthe-top service to FiOS customers that is exclusive to FiOS, and we 

have responded by launching Streampix, which is our new—— 

Senator FRANKEN. All right. I got it. I only have a certain 

amount of time, but thank you for your very complete answer. 

Mr. Milch, thanks for being here. 

Mr. Cohen, one of my many hearings or of the many hearings 

that was held prior to the passage of the 1996 Telecommunications 

Act, the Comcast CEO at the time testified that the company 

planned to, quote, ‘‘combine wireless and wire technologies in a 

bold new way to give American consumers unprecedented choice, 

convenience, and competitive prices,’’ unquote. 

He went on to say, quote, ‘‘When we are done, America will be 

the first nation on earth to have full-fledged facilities-based telephone competition everywhere. We will achieve the vision of the 

two-wired world,’’ unquote. 

This deal seems to completely abandon the goals of the Telecom 

Act and seems to signify that the promises that Comcast made in 

1996 will no longer come to fruition. 

Do you disagree with me on that? And do you think that this 

means that we, Congress, need to reevaluate the deregulation that 

took place in the Telecom Act? 

Mr. COHEN. I never like disagreeing with you, Senator. So I 

think I’d rather just put the comments in a slightly different perspective that’s reflective—— 

Senator FRANKEN. I appreciate that. 

Mr. COHEN. I think the comments at the time were reflective of 

a marketplace that existed in the mid-1990s. At that time, Comcast 

actually owned a small wireless business, Metrophone in Philadelphia, and I think we have seen a dramatic change in the marketplace over time. 

So we got out of that business. Then starting in the mid-2000s, 

we decided we needed to be in that business. We tried a joint venture with Sprint around Pivot. We formed SpectrumCo. We bought 

spectrum. We spent tens of millions of dollars evaluating the opportunities, clearing that spectrum, concluded we couldn’t enter the 

wireless space on our own, and now we have ended up in the sale 

of the spectrum and these commercial agreements, I believe, to—— 

Senator FRANKEN. I am sorry, but could you—— 

Mr. COHEN. I am sorry—I believe, to accomplish exactly what it 

is that Mr. Roberts said in 1996. So I don’t think we have changed 

the goal. I think we have changed the tactics to be able to get to 

the goal. 
25 

Senator FRANKEN. Just very quickly. Did you consider—because 

you made the sale right before the AT&T/T-Mobile deal was scuttled. Did you consider maybe holding out and using competition on 

who could buy the spectrum? Would not that have been a smart 

thing to do from a business perspective? 

Mr. COHEN. We engaged—I’ll answer with one sentence and if 

you want to probe beyond that, we engaged in discussions with virtually every wireless carrier in the country with respect to this 

spectrum and the types of commercial agreements that ended up 

being the product, and ended up believing that the transaction that 

is in front of you is the best transaction for our customers. 

Senator FRANKEN. Thank you. 

One last question for Mr. Wu and Mr. Kelsey. I am worried 

about what this deal might mean for consumers not just two years 

from now or five years from now, but 10 or 20 years from now. 

The fact that this is a joint venture can live on and the fact that 

it can live on indefinitely has me worried about the long-range impact of the deal. 

Can you tell me what you expect to be the downside for consumers if the deal goes through? 

Mr. KELSEY. I’ll just jump in first. As I mentioned in the oral remarks, there is such a trend toward duopoly in the wireless market 

that would be exacerbated by putting close to a third of the Nation’s broadband spectrum, measured by value, into the hands of 

Verizon, and that’s something that the FCC really ought to take 

into consideration. 

I’m from Upstate New York, and if the State of New York was 

in charge of handing out all of the valuable farmland in Upstate 

New York and they decided to give 80 percent of that land only to 

two farmers, no one would be surprised when the price of corn all 

of a sudden skyrocketed. 

But we would expect the State then to come in and start to figure out how to protect consumers in that regard. That, to us, 

sounds like a whole lot of government. We would rather the FCC 

reject these deals in favor of more competition in the wireless marketplace, and we think that there are a number of items before the 

Commission that they could do to make sure that there are stronger competitors there. 

Senator FRANKEN. Mr. Wu. 

Mr. WU. I think the prospect is a slow drift back to the conditions of the 1960s and 1950s, which I think were good in some 

ways, great music, things like that, but in terms of innovation in 

communications, they were fairly dead. And the reason is we’d drift 

slowly back to a duopoly/monopoly structure, the only difference 

being no regulation against customer abuse. 

So I think those are serious problems. To be more concrete, I 

think we would gradually move toward the natural monopoly in 

the wireline side focused on cable. At least for now, we’d go toward 

the duopoly in wireless. 

And I want to add, finally, there’s a lot of technologies that everyone was thinking were just around the corner that may just remain around the corner maybe forever. The idea that maybe America will have a fiber optic network to the home at some point in 

our Nation’s history would be put on hold, perhaps perpetually. 
26 

And the idea that wireless services might end up being a significant way of moving information to the home on a fixed basis, I 

mean, 4G, and people cutting their cable connections and just using 

their 4G modems, to be more technical, to get Internet access, that 

that as a major competitor to cable might disappear. 

So we drift back to sort of the stagnant, depressing communications markets of the 1960s and 1970s, and I think that wouldn’t 

be so good. 

Senator FRANKEN. Thank you all. Thank all of you, gentlemen. 

Mr. Chairman. 

Senator KOHL. Thank you, Senator Franken. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. And thank you 

for holding this hearing. 

Let me begin by thanking Mr. Milch for your endorsement of the 

bill that I have introduced that Senator Klobuchar mentioned, the 

next generation wireless bill, and hope to be working with you in 

light of your endorsement on it, because I think it is very important. 

I would begin by asking you about these agreements, referring 

to, in the plural, the spectrum agreement and the marketing agreement. I take it your view is that they should be and can be reviewed separately. 

Mr. MILCH. Yes, Senator. The agreements are not contingent 

upon one another. The spectrum agreement will move forward regardless of what happens to the marketing agreements. The marketing agreements will move forward regardless of what happens 

to the spectrum agreement. 

There are differences in the process, as you are very well aware, 

Senator. The spectrum agreement needs affirmative approval. The 

marketing agreements can move forward, and then there will be investigations that are already ongoing about them at Department of 

Justice and at the FTC. 

Senator BLUMENTHAL. And in those reviews, they are separate 

reviews done by the Department of Justice and the FTC. Is that 

correct? 

Mr. MILCH. Yes, sir. 

Senator BLUMENTHAL. And with different standards and different 

laws that apply. 

Mr. MILCH. Yes, sir. 

Senator BLUMENTHAL. But it seems to me, in light of the market 

concentration that exists here, that the antitrust review is an important one. Would you agree? 

Mr. MILCH. Yes, sir. And the Department of Justice is doing a 

thorough job. 

Senator BLUMENTHAL. And should be. 

Mr. MILCH. Yes, sir. 

Senator BLUMENTHAL. In fact, my feeling has been over the years 

that the Department of Justice really has failed to be as rigorous 

or vigorous as it should be in enforcing antitrust laws going back 

for some years, perhaps not to Mr. Rule’s time, without any criticism of that era. 
27 

But with all due respect to the ladies and gentlemen who sit on 

this panel, the Department of Justice really has the primary enforcement role in this area. Would you agree? 

Mr. MILCH. Yes, sir, I would. 

Senator BLUMENTHAL. Really, the Department of Justice has that 

responsibility, and now the ball is in the Department of Justice’s 

court. Is that correct? 

Mr. MILCH. Yes, sir. 

Senator BLUMENTHAL. Is there anyone who disagrees with that 

basic premise? 

Professor Wu. 

Mr. WU. I disagree with that with respect to the spectrum sales. 

Those are the Federal Communications Commission’s duty. And I 

think they should apply different standards to those than they 

would for a normal antitrust transaction. 

Senator BLUMENTHAL. And I thank you for that clarification, because we were really talking about the antitrust issue, I think, primarily. 

Mr. WU. The marketing agreements, correct? That’s what I understood your question to be. 

Senator BLUMENTHAL. Exactly. But you are absolutely right, Professor, and, luckily, we have a professor in the house to keep us 

on the straight and narrow. 

Let me ask the panel as a whole where you think, in effect, the 

burden of proof should be, because in this kind of antitrust review, 

I think there is a very strong argument that when you come to the 

Department of Justice, the companies bear a burden of proof because of the market concentration that exists in these respective 

areas of enterprise. And that is an open question. 

Mr. Cohen. 

Mr. COHEN. I’ll take a shot, but I’m going to quote Mr. Rule, who 

is the only active practicing antitrust lawyer on the panel. Actually—and if I can, again, I hate to always be picky about this. 

Yes, we’re the largest cable company. Yes, Verizon Wireless is 

the largest wireless provider. But we both function in intensely 

competitive markets. And notwithstanding our size, there are large 

numbers of competitors with robust competition and a pretty clear 

demonstration across the board as to the benefits of that competition to consumers. 

So I don’t think our size alone would dictate a change in what 

the normal course of conduct would be, which is, on a strict antitrust analysis, as Mr. Rule stated in response to a prior question, 

the Justice Department analysis is to look, in the first instance, as 

to whether there is anti-competitive harm, whether there is harm 

to consumers. And in the absence of such harm to consumers, the 

proponents of a transaction actually do not have an obligation to 

come forward to demonstrate consumer benefit in order to outweigh that consumer harm. 

So I will tell you that in our—in this review, as in probably all 

reviews, we are aggressively making the case to the Department of 

Justice both that there is no consumer harm and that there is consumer benefit. 

So we’re certainly at least assuming a burden of making an affirmative case that this is not a problem under the antitrust laws. 
28 

But I think strictly speaking, in this case, we actually don’t have 

a burden, because I don’t think there is anti-competitive harm that 

we need to overcome. But if we did, there is plenty of consumer 

benefit that we can put on the table to offset any anti-competitive 

harm that the Justice Department would articulate. 

Senator BLUMENTHAL. Mr. Rule. 

Mr. RULE. Let me just say, put in a word for the U.S. antitrust 

system, the system isn’t a law enforcement system and, essentially, 

the Department, when it investigates a merger, is trying to decide 

whether or not, under the precedents that are in place at that time, 

they can go in and block the transaction. 

So technically, the way the law is set up, the burden is on the 

Department, at least that’s the way the Department views it, as to 

whether or not they can go into court and prove that merger may 

tend substantially to lessen competition. 

And so in that sense, the burden is on the government. The sort 

of notion—— 

Senator BLUMENTHAL. Well, the burden is on the government 

when it gets to court. 

Mr. RULE. When it gets to court. 

Senator BLUMENTHAL. When it reviews the transaction, the burden is on the government, as well, to uncover the facts and do a 

thorough investigation. And my point earlier was simply that in 

many instances, States have filled a gap left by the lack of Federal 

antitrust enforcement. 

Mr. RULE. And I think that’s fair, but I will—I mean, it’s a fair 

comment. I don’t know that I agree with it, but I understand where 

the comment comes from. 

I will say that, look, the Department of Justice and, particularly, 

the career folks, you take me and my successors out of it, they are 

very committed, they work very hard. They’re going to put these 

guys through quite a bit of expense and effort in looking at all 

these issues. 

But I think the one thing that’s important about this transaction 

in the spectrum part of it is they have to answer, I think, at the 

outset, the fundamental question whether or not the cable companies, simply because they own spectrum, are actual or potential 

competitors to Verizon Wireless. 

And the problem is that they are going to have if they go in and 

bring a lawsuit is it looks like the facts that at least I can see, it’s 

going to be very difficult to argue that the cable companies are 

even a viable potential competitor under the existing case law, 

much less an actual competitor. 

So that’s the dilemma that the Department faces. 

Senator BLUMENTHAL. My time has expired, but I want to thank 

really all the witnesses for addressing these questions so well. And 

I understand and think that your points on the standard of proof 

issue are certainly fair points, and I will be very interested in seeing what the Department of Justice and the FCC determine. 

Thank you. 

Senator KOHL. Thank you, Senator Blumenthal. 

Mr. Cohen, when Comcast and the other cable companies that 

are part of SpectrumCo partnership bought spectrum at FCC auc-
29 

tion in 2006, there was hope that the cable companies would develop a competing wireless service. 

Instead, these cable companies decided that it would be not economical to spend the resources to deploy this spectrum and enter 

the wireless market. Instead, you are now selling all of the spectrum to the largest wireless company, Verizon. 

We are not suggesting that you and your cable partners should 

be compelled to operate a cell phone service if you determine it is 

not economical and not in the interest of your shareholders. However, spectrum is government-granted public airwaves to be used 

in the public interest. 

Indeed, there are FCC rules against speculation in and 

warehousing of spectrum. And that is why we were disappointed 

when your CFO told an investors conference in January that, 

quote, ‘‘We never really intended to build that spectrum.’’ 

So is it in the public interest, Mr. Cohen, for you to sell this valuable spectrum to Verizon, the Nation’s biggest wireless company, 

which will keep it out of the hands of any of the competitors? 

Would it not have been better to at least have a public auction 

for the spectrum? The competitors would have a fair chance to bid 

on it, Mr. Cohen. 

Mr. COHEN. I think there are two questions embedded there. One 

is the warehousing argument, if I could address briefly, and I already gave a lot of this answer in response to Senator Franken’s 

question. 

At the time we bought this spectrum, we had every intention of 

at least exploring whether we had a viable wireless business. We 

cleared the spectrum. We engaged in technology tests on the spectrum. We invited companies to come in and test their devices on 

the spectrum. We expended tens of millions of dollars in those efforts. 

We engaged in a detailed analysis of the viability of launching 

a wireless business. Over that period of time, things happened, like 

the launch of the iPhone and the iPad that dramatically increased 

the amount of data that was going over wireless networks, and we 

concluded that 20 megahertz of spectrum was wholly inadequate to 

be able to build a business. 

We would have to buy more spectrum. We’d have to invest more 

dollars in the build-out of that spectrum, and we could not figure 

out a viable business model to be able to launch the fifth national 

wireless competitor. And that’s the reason we made the judgment 

not to go into the wireless business. 

Mr. Angelakis’ comments were in a Q-and-A at an investor conference, I think. I think they were—I think in the overall context 

of the five years of work that they did, they reflected our current 

view. The word ‘‘never,’’ I think, was unfortunate. 

We did explain that subsequently publicly, but I know and our 

documents will reflect that we did anything but engage in spectrum warehousing. We seriously studied this alternative and just 

determined there was not a viable business for it. 

In terms of whether we should have auctioned it off or made it 

available, as I, again, said in response to a question from Senator 

Franken, we marketed this spectrum. We talked to virtually every 

wireless player in the marketplace. 
30 

And at the end of the day, we made the conclusion that the 

transaction we entered into with Verizon Wireless was the best 

transaction for our company and for our customers. And under Section 310(b) of the Communications Act, Congress has directed the 

FCC that its appropriate standard of review is of this transaction, 

not of some other hypothetical transaction that we might have entered into, and the antitrust laws through case law have established exactly the same principle in the antitrust context. 

Senator KOHL. All right. Mr. Milch, just a few minutes ago, you 

said these agreements are separate. However, Mr. Cohen, in his 

interview with Politico on March 8, said, ‘‘The transaction is an integrated transaction. There was never any discussion about selling 

the spectrum without having the commercial agreements.’’ 

So I suppose, Mr. Milch, you would be challenging that view. And 

if you do not, does that not mean that the regulators should consider these together? 

Mr. MILCH. Senator, I don’t challenge his view. I interpret it a 

certain way. I don’t think that he meant by integrated that they 

are contingent upon one another, which they are not contingent 

upon one another. 

And there is no doubt that they were negotiated at the same 

time. That’s obvious. They were signed at the same time. That’s 

also obvious, as they are part of a larger set of deals. That’s also 

obvious. 

But the law is you look at deals on their square corners. These 

deals are not contingent upon one another. And, finally, I would 

say, Senator, that the responsible agencies, both the Department of 

Justice and the FCC, are undertaking investigations. 

So if the concern is will the appropriate authorities look at them, 

the appropriate authorities are looking at them. 

Senator KOHL. Mr. Cohen, just to understand your statement, 

you are saying that you would have not done the spectrum sale unless you obtained the commercial agreements. Is that not what you 

said? 

Mr. COHEN. That is basically correct. From a Comcast or a cable 

company perspective, our interest was in having an integrated solution and a comprehensive strategic wireless solution for our company and for our customers. And sale of the spectrum, as well as 

entering into the commercial agreements, provides us with that integrated comprehensive solution. 

And to be clear, I do not disagree with Mr. Milch that the agreements are not contingent upon each other. There is no legal connection between them. The Justice Department could challenge the 

commercial agreements and nobody could do anything with respect 

to the spectrum agreements. That is absolutely something that 

could occur. 

So legally, it’s not the agreements that are integrated. It’s the 

fact that the sale of the spectrum, plus our entry into the commercial agreements, provided us with an integrated wireless solution. 

Senator KOHL. Professor Wu, is it your view that in keeping with 

the goals of competition and communications policy to permit cable 

companies to sell this spectrum to Verizon Wireless? 

Mr. WU. I certainly don’t think it’s in the spirit of a policy which 

maximizes competition in these industries, spectrum-based indus-
31 

tries. And I want to repeat again that the appropriate lens for 

analysis here of the spectrum sale is not antitrust law, with respect 

to Senator Blumenthal. 

This is a matter of communications policy and this Nation decided almost three decades ago that we are embarking on a course 

of competition, not regulated monopoly. And these transactions 

threaten to take us back in the direction of duopoly/monopoly, this 

time unregulated. 

Senator KOHL. Thank you very much. 

Senator Lee. 

Senator LEE. Thank you. 

Mr. Berry, some have made the estimate that the U.S. Government may own as much as 61 percent of the best airwaves, and, 

meanwhile, the mobile broadband providers may own only about 10 

percent. 

Some commentators have argued that the impending spectrum 

crunch that everyone is anticipating and, in many respect, fearing, 

has been made worse by government mismanagement and failure 

to free up spectrum in a more timely manner. 

Could you comment for us just kind of the role of government, 

the role that it has played in the spectrum market, what could be 

done separate and apart from efforts to scrutinize this deal, to help 

ensure that more spectrum is available for all wireless companies 

that might need it? 

Mr. BERRY. Thank you, Senator. Thank you for the question. I 

was starting to feel like a potted plant here. 

Senator LEE. I did not want you to feel left out. 

Mr. BERRY. Appreciate it. Thank you for the question. Yes, you’re 

right. The government, most notoriously in the President’s 

broadband plan, identified a hope of having 300 to 500 megahertz 

of additional spectrum made available for broadband, and I understand that that is a very difficult role. 

Over the past 15–20 years, I have been involved in numerous 

legislative efforts to free up more spectrum for wireless uses and, 

particularly, broadband. That is a government function. 

We also have a government function directly related to this particular transaction, and it is incumbent upon the FCC to look at 

not only the efficiencies, as Verizon had indicated, but the spectrum that they currently have warehoused and currently not utilizing as we move forward, because many of our carriers didn’t 

have an opportunity to purchase the spectrum. 

T-Mobile, who was otherwise engaged in an AT&T event, was 

unable to acquire this spectrum. I don’t think that any—— 

Senator LEE. Unable from a financial—— 

Mr. BERRY. No. They were involved with the AT&T/T-Mobile acquisition. 

Senator LEE. So in that respect. 

Mr. BERRY. So that sort of took them off the market during that 

period of time, for sure. But the overall issue is how do you get 

spectrum in the hands of competitors, competitive carriers that can 

utilize it efficiently, effectively, immediately. 

And what I’m saying is in this particular case, the FCC is going 

to review that and I think they’re going to find that there is additional spectrum that Verizon has that will only be enhanced by this 
32 

particular deal, and it may be best in the U.S. public interest that 

spectrum divestiture and spectrum screen be applied to this particular deal so you can get that spectrum out there. 

It’s a real shame that private companies throughout the wireless 

world may, in fact, be continually harmed by spectrum policies that 

have not brought spectrum to the marketplace in time to meet customer and consumer demand. 

And since we are in a very, very limited market, with tight, very 

finite resources, I think we have to be very prudent about how 

those spectrum resources get assigned. And I’m not so sure that it 

is in the public interest for the largest company that is not only 

one of the best and most efficient, but still has spectrum 

warehoused. 

They may pay $3.9 billion for this slice of spectrum. They’re 

warehousing over $5 billion worth of spectrum that is currently not 

in use. We think we would like to see more competitive carriers get 

access to that. 

Senator LEE. Mr. Cohen, did you talk to T-Mobile? Was T-Mobile 

somebody you consulted in this offering? 

Mr. COHEN. Senator, I have generically said that we talked to 

virtually everyone in this space. Most of those discussions, as I 

know you appreciate, take place pursuant to non-disclosure agreements. So I’m a little limited in what I can say. 

The good news for your question, however, is that I don’t think 

anything would prevent me from disclosing something that is already in the public domain. And the fact of the matter is that Robert Dotson, in 2010, who was the president of T-Mobile at the time, 

stated publicly that T-Mobile was engaged in discussions with cable 

companies about spectrum. And I think it’s probably a pretty natural extension—it doesn’t take is very far to know who else could 

he have been engaged in discussions with other than us. 

And so I’m happy to confirm Mr. Dotson’s public representation 

that he was in discussions with us about this spectrum. 

Senator LEE. Mr. Berry seems eager to respond. 

Mr. BERRY. And I think it’s important to note. Mr. Cohen has 

said this is an integrated transaction, and I think it’s very important that they made the decision, the corporate business decision 

that this particular transaction could only be given by Verizon. No 

one else could, in fact, sign a non-compete agreement nationwide 

that would impact wireless and give cable companies, SpectrumCo, 

the ability to have nationwide wireless access to a network. 

Senator LEE. Understood. Understood. 

Mr. Milch, I would like to raise with you the same question that 

I originally presented to Mr. Berry regarding the fact that apparently 61 percent of the best airwaves are held by the government, 

10 percent only are available to broadband, wireless broadband 

providers. 

What can the government do to help free up some of that spectrum? 

Mr. MILCH. Senator, thank you. Surprisingly, I agree with Mr. 

Berry that there is a great deal of spectrum that is available that’s 

in the government’s hands, but it is a very difficult job for the Federal Communications Commission, given the intergovernmental 
33 

issues and the priority that seems to be claimed by certain government agencies over their spectrum, to free up that spectrum. 

Nevertheless, there is considerable spectrum that’s potentially 

coming on board, and I do want to stress that this notion that some 

spectrum is so much better than another spectrum is reasonably 

well concocted for the purposes of this hearing, particularly when 

you weight certain spectrum based on book values and an arbitrary 

analysis that was done for the purposes of trying to take spectrum 

out of play in order to artificially inflate Verizon’s alleged proportion of valuable spectrum. 

Senator LEE. That is not to say that all spectrum is created 

equal. 

Mr. MILCH. It is not created equal. But, for instance, the Sprint 

head of technology recently—in 2010, I believe it was, opined how 

certain higher frequency spectrum is much better for mobile 

broadband in congested areas because it has more carrying capacity. 

All spectrum is created differently. But you have the spectrum 

you have, you do the best you can with it, and if you invest in your 

technology, you can have a world-leading service, like Verizon 

Wireless does. 

Senator LEE. With the higher frequency, it has got more carrying 

capacity, but one of the disadvantages is it cannot go through—— 

Mr. MILCH. Different propagation characteristics through walls 

and the like. Yes, Senator. 

Mr. BERRY. For example, a high-frequency spectrum of 2.3, 2.5 

would cost more than four times as much to build out to have the 

same capacity and use as a 700 megahertz spectrum, especially the 

propagation values and characteristics are great for Utah and Wisconsin and other large States. 

So it’s not created equal, and I think this particular spectrum is 

one of the four slices of spectrum that LTE, 4G LTE is going to be 

rolled out on nationwide, which makes it extremely attractive and 

very valuable. 

Senator LEE. Thank you. I see my time has expired, Mr. Chairman. 

Mr. KELSEY. Excuse me. Since he seemed to indicate the value 

stream that we had tried to place on it, I would just jump in and 

say we agree that spectrum is absolutely not created equal, but the 

way that the FCC currently measures it is by just looking at 

square foot. 

So if you are in the property market where location drives the 

value of property, you wouldn’t just look at the square feet of a 

house. You’d look at is it beachfront, is it beach-adjacent, does it 

have a beach view. The FCC does not do that in its spectrum 

screen. 

And I also think it’s important to remember that the spectrum 

screen is not a bright line test, you fall inside or outside of it. It’s 

more of a guideline to indicate to the FCC when there is enough 

consolidation in a spectrum sale for them to be interested in it and 

to take a deeper look at the competitive impacts that that spectrum 

sale will have on the larger wireless market. 

And in this particular sale, we’re saying that Verizon already has 

quite a bit of the beachfront, sub–1 gigahertz spectrum. This is the 
34 

last piece of nationwide spectrum that will come on the market for 

some time and giving it to Verizon for the foreseeable future would 

have an adverse impact on competition and consumers going forward. 

Senator LEE. I see my time has expired. Thank you, Mr. Kelsey. 

Thank you, Chairman. 

Senator KOHL. Thank you. 

Senator Franken. 

Senator FRANKEN. Thank you. Mr. Milch and Mr. Cohen, one of 

my big concerns with this deal is the joint venture that your companies have agreed to create. I am imagining that you could 

produce some very valuable technology that you could also keep 

locked up between yourselves, similar to what we now see with 

cable set-top boxes. 

Will you commit to opening up the technology and the intellectual property that your companies create to your competitors so 

that they can obtain the technology at fair, reasonable, and nondiscriminatory rates? 

Mr. MILCH. Senator, I hope you are right that we are going to 

create something valuable. Right now, we have nothing. We are 

starting from scratch in, as Mr. Cohen said, a very competitive 

market with Apple, Google, everyone else. And if we do, Senator, 

then the question is why would it be that this particular set of intellectual property is commanded to be opened up when other people’s intellectual property isn’t. 

For me, Senator, the question is going to come down to this joint 

venture to decide what the best way to monetize that intellectual 

property is and whether it is in its interest to open it up or not. 

One thing we have seen is that closed technologies do not survive 

as well in the marketplace as open technologies do. 

Senator FRANKEN. I guess one of the reasons—the answer to 

your question is that we worry about this agreement, this joint 

venture agreement. That is why I am asking you this question. 

Mr. MILCH. Yes, Senator. But as I said, we have nothing in comparison to some very, very successful and well-heeled competitors 

who have a lot. 

Senator FRANKEN. You guys are very successful and very well 

heeled, and, presumably, your joint venture will yield some really 

exciting stuff and that, I think, is the point of it. 

Let me move on. Mr. Rule, if you had known in 1996 what you 

know now, that cable would never enter the wireless market and 

Verizon would abandon its copper infrastructure and stop marketing it, its DSL technology, do you not think you would have 

been—we would have been foolhardy or Congress would have been 

to completely deregulate the market? 

Mr. RULE. Well, let me start the answer by indicating that one 

of the things I did when I was at the Department of Justice back 

in the 1980s was administer the AT&T decree, which, de facto, at 

least, was the way in which the industry was regulated. 

And notwithstanding, again, a lot of good faith efforts by people 

at the Department of Justice, I think we created some issues. And 

one of the reasons I always viewed the 1996 Act as being important 

was because it took this sort of regulation out of the antitrust divi-
35 

sion and tried to open an area up to competition. But it didn’t— 

after all, it did not completely deregulate. 

I guess I would not say that I would have been an advocate of 

the status quo in 1996, even if I knew what I know now. You might 

have done things a little differently. I don’t know exactly, because 

I haven’t thought about it. 

Senator FRANKEN. Well, let us ask Professor Wu. Have you 

thought about it? 

Mr. WU. I have thought about the 1996 Act, and I think the 1996 

Act, as you suggested, Senator Franken, was a deal. The idea was 

that the government would proactively take a policy of promoting 

competition, not just sort of sitting around seeing whether competition happened, but trying to promote competition in exchange for 

deregulation. And it did so in an effort to move away from a regulated monopoly and still attempt to keep alive the policy of the 

1984 AT&T breakup. 

And what we’re doing here is we’re going back to the conditions 

before, slowly, but gradually and without stopping, going back to 

the conditions before the 1984 breakup, just without any deregulation to protect consumers, and I think that is not a good thing. 

Senator FRANKEN. Thank you. Mr. Cohen, you confirmed that 

Comcast talked with T-Mobile in or before 2010 about spectrum. 

Presumably, those meetings are subject to the same non-disclosure 

agreements that any 2011 talks were subject to. 

So can you confirm that you talked to them before you made this 

deal in 2011? 

Mr. COHEN. I mean, talk to them in 2011, I honestly don’t know 

when the discussions with T-Mobile that Mr. Dotson referenced 

publicly ended. 

Senator FRANKEN. Well, he made them in 2010, he made those 

remarks. He said in 2010. 

Mr. COHEN. Correct. But I don’t know when those discussions 

ended. That’s what I’m saying. 

Senator FRANKEN. But you don’t know when your spectrum discussions with T-Mobile ended. 

Mr. COHEN. I don’t know that, off the top of my head, correct. 

I can get that information to you. 

Senator FRANKEN. I would really like to have that, because you 

said you talked to everyone you could talk to before making this 

agreement. T-Mobile seems to be kind of, ‘‘Who’d you talk to,’’ and 

this is like a big—— 

Mr. COHEN. I’m in a difficult position. It’s not like all of our discussions were in 2011. We talked over a long period of time to multiple players in the market before we ended up making this deal 

Verizon Wireless. 

Senator FRANKEN. I know. But I am asking you specifically about 

T-Mobile and I feel that you are getting—I just want to know if, 

before you made this deal with Verizon, you talked to Sprint and 

to T-Mobile about this, and you were willing to confirm that you 

had talked to T-Mobile at least in 2010 or before then. 

Mr. COHEN. Only because I was limiting my confirmation to Mr. 

Dotson’s public comments, which relieves me of any obligation 

under the NDA, and that’s why I made the 2010 reference. 
36 

But the bottom line is before we entered into this transaction 

with Verizon Wireless, we talked to virtually everyone in this 

space. 

Senator FRANKEN. Virtually everyone. All right. Well, the point 

is that T-Mobile did not say they had talked to you. They said they 

had talked to cable. And so you felt that it was fine for you to disclose that you had talked to T-Mobile, but now you cannot tell me, 

with this very, very important deal, whether you were trying to 

make a deal with T-Mobile, who would be one of two likely suspects for this. 

You cannot tell me whether they were one of the players that 

you were trying to sell this spectrum to, spectrum that is worth an 

awful lot of money, and you cannot even remember whether in 

2011 you talked to them. 

Mr. COHEN. I can’t remember when the discussions with them 

stopped. I can remember that—I can remember that we engaged in 

discussions with them before we made the deal with Verizon Wireless. 

Let me say this. I know the discussions stopped by the—at the 

time AT&T and T-Mobile announced their deal. I don’t remember 

when that was either. That was sometime in 2011, I believe. 

Senator FRANKEN. Fair enough. Good. Thanks. I really appreciate your testimony. And my time has run out. Thank you. 

Senator KOHL. Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. 

I want to thank all the witnesses for being so cooperative and 

forthright and straightforward in your responses today. 

Mr. Rule, you have qualified your answers by saying that you 

had—I think I am quoting you—restricted access to information. I 

wonder if you could tell us what facts or other information you 

would need to know to further evaluate the legal and factual issues 

here. 

Mr. RULE. I think that there are a lot and there are a lot of 

issues that I think the Department is exploring and should explore. 

But there are two things that one would like to know if you’re trying to judge this. 

The first is you’d actually like to see the agreements. I understand why they’re not available and I’m certainly not criticizing the 

parties, because that’s typical in these sorts of arrangements. And 

I will also say that these guys are very well represented by people 

who are well known in the antitrust bar. So I’m sure they did a 

good job. 

Senator BLUMENTHAL. ‘‘These guys’’ meaning, just for the record? 

Mr. RULE. Everybody on both sides with me—— 

Senator BLUMENTHAL. Swayed your arm in one direction and not 

the other. 

Mr. RULE. Right. But I don’t want to leave the folks to my left 

out either. But I’m sure that the people to the right of me, Verizon 

and the cable companies, their agreement was well vetted and well 

considered in terms of the way it was structured. 

But, frankly, you would want to look at that to sort of confirm 

what my view is based on what I’ve seen publicly, that this really 

doesn’t materially change their incentives. 
37 

Senator BLUMENTHAL. And those agreements will be reviewed by 

the Department of Justice. 

Mr. RULE. They’ll definitely be—yes. I’m sure the Department 

has seen them in complete unredacted form. They’ve probably seen 

drafts of them and so forth. 

The second thing that I’d like to see and I think would answer 

a lot of questions are planning documents, quite frankly, of both 

companies, but particularly of Verizon Wireless, because—and of 

the cable companies, because part of what the opponents are charging in terms of hoarding and other things is at odds with what 

Verizon has said, that this is going to be molded or folded into their 

network and they’re going to make the investment so that they can 

deploy this spectrum in a sort of rational plan moving forward. 

If they are right about that, it strikes me that that suggests that 

sort of some of these hoarding concerns and everything else are off 

to one side. I believe, based on my experience representing companies, but also being at the Department of Justice, that the Department will get to the bottom of that. They’ll understand what was 

motivating Verizon Wireless, whether Verizon Wireless really 

wanted to use this spectrum to enhance their ability to produce 

wireless services, or whether they’re just buying it to warehouse it 

and keep it out of the hands of others. 

Senator BLUMENTHAL. And all that information in the form of 

documents and testimony, interviews and so forth, would be freely 

available to whatever government agency was reviewing these 

issues. 

Mr. RULE. Correct. But it won’t be available to me. 

Senator BLUMENTHAL. We are talking about the government 

agencies. 

Mr. RULE. That’s true. And I’m sure and I have a great deal of 

faith that they will chase down all the appropriate alleys. It’s just 

that if you’re a third party who were trying to look at this on the 

outside in a few days, I don’t have access to that. 

I can speculate about what they’ll find, but since I’m not involved, not representing the parties, I don’t know. 

Senator BLUMENTHAL. But a full evaluation of this deal would 

really depend on an examination of those kinds of material, that 

kind of information, testimony, interviews, documents, all of the 

stuff that you review as an antitrust enforcer, that the FCC could 

review in evaluating motive, purpose, effect, and so forth, even 

though many of these documents and those materials are not available to this subcommittee. 

Mr. RULE. That is correct. And, again, my experience both being 

somebody who has represented companies that had to spend a lot 

of money to sort of respond to that, but, also, being at the government, is that they are very thorough and I trust that they will be 

very thorough here. 

And I think it’s pretty clear the kinds of things they’ll want to 

look at. I think they’ll also get their economists involved, because 

as I mentioned in my testimony, two of the more interesting filings 

are the competing declarations of the economists, Judith Chevalier, 

I guess, for the opponents and Michael Katz for the companies. 

And the government will engage in that and probably look at a lot 

of data. 
38 

But, again, I have a lot of confidence that they’ll do a thorough 

job. 

Senator BLUMENTHAL. And the reasons that those documents are 

not available to the Committee would be the proprietary information that they include or—as now a private antitrust lawyer, maybe 

you could explain that. 

Mr. RULE. Sure. A lot of the documents that the government gets 

are highly confidential. The Hart-Scott-Rodino Act, in the wisdom 

of Congress, limits significantly the use to which the government 

can put the information and to whom they can disclose it. 

Senator BLUMENTHAL. And part of the reasons—excuse me for interrupting—is, very simple, Hart-Scott-Rodino review occurs before 

the transaction actually goes forward so that it can be stopped before the eggs have to be unscrambled, so to speak. 

Mr. RULE. Correct. And the thought was in the 1970s when the 

Act was passed, because it has turned out to be very common to 

all of us, at the time, it was kind of a radical idea, but the notion 

was that if businesses were going to be subjected to those kinds of 

investigations, that really has to go to the most sensitive, competitively sensitive confidential information in order to answer the 

questions that you’ve raised, that the government had to guarantee 

the confidentiality of that material. 

And that’s why it’s so limited in terms of who the government 

can disclose it to. I’m sure they’d love to disclose it to this Committee and others. That sometimes would make their lives easier. 

But the fact is the law prevents them from doing that. 

Senator BLUMENTHAL. Thank you very much. 

Thank you, Mr. Chairman. 

Senator KOHL. Thank you very much, Senator Blumenthal. 

Mr. Berry, critics of this deal are concerned that, as they see it, 

Verizon Wireless and AT&T own the large majority of the spectrum 

best suited for wireless, especially given the exploding demand for 

spectrum created by smart phones and other mobile devices. 

They believe Verizon Wireless’ acquisition of this large amount 

of spectrum will only make the situation worse and that we are in 

danger of creating a duopoly in the wireless market. 

What is your opinion? 

Mr. BERRY. Thank you, Mr. Chairman. I think we’re very dangerously close to a duopoly already. You have 73, 75 percent of all 

the spectrum under one gigahertz, which has really unique propagation values and allows for deployment of services at lower cost 

owned by two companies. They own well over 80 percent of the 

EBITDA in the wireless world. 

So it truly is, as the cable companies found out, a very difficult 

place to enter in as a new entrant. And that’s what concerns me 

greatly now, is because if someone like Comcast and the cable companies cannot find a way into the wireless ecosystem with their 

substantial resources and literally green field spectrum that could 

be used immediately, then you should expect very few new entrants into the wireless world will be available. 

Senator KOHL. All right. Professor Wu, Mr. Kelsey, Mr. Berry, 

and Mr. Rule, in the event that this deal would go down, do you 

believe that there are any conditions either the Justice Department 
39 

or the FCC should place on this deal, should they decide to approve 

it? 

Who goes first? Mr. Kelsey. 

Mr. KELSEY. I’ll go first. Thank you for the question, Senator. 

We haven’t seen any conditions, any proposed conditions that 

would mitigate the long-term harms that this transaction would 

cause. In a consolidated market—in a market as consolidated as 

the telecom market, I think the behavioral conditions have a short 

shelf life. They sunset. In the long term, harms to competition remain. 

So if there are any conditions that are considered, I think you’d 

look at structural conditions, spectrum divestitures from Verizon, 

foreclosing the ability of these companies to enter into the joint 

marketing arrangements in areas where they compete head to head 

and where their wireline infrastructures overlap. 

But that really seems like a band-aid. This market has a competition problem and consumers need a long-term solution. And so 

I think it would be much cleaner for the FCC to outright deny the 

transaction in favor of more competition and promote a more equitable distribution of the very finite spectrum we have. 

Senator KOHL. Thank you very much. 

Mr. Wu. 

Mr. WU. All my answers, Mr. Chairman, stem from the fundamental fact that spectrum is the public’s property. It’s the property 

of the citizens of the United States, and we have special duties to 

oversee that this asset is used properly. 

I agree with Mr. Kelsey that probably the best thing to do would 

be to stop the sale of the spectrum, in particular. But if it is to be 

used, I’d put just two types of conditions if the sale is to go forward, two types of conditions to be imposed by the Federal Communications Commission. 

First of all, Verizon has promised—the centerpiece of all its filings is that it’s actually going to use this spectrum, put it to use, 

it’s not going to warehouse it. Well, if that’s true, then the Commission should put some teeth into that promise—sorry, that’s not the 

right metaphor. But it should somehow make sure that promise is 

carried out and put in some safeguards against warehousing, including, I think, maybe one of the best ones would be allowing unlicensed use of that spectrum if it’s not put to use by a certain 

amount of time. 

Second, this is something that the competitive carriers have been 

talking about, there needs to be oversight or conditions on roaming 

and handset exclusivity. We cannot allow the prospect of parallel 

exclusion by AT&T and Verizon, the two biggest carriers, putting 

roaming rates up at such a level that competitive carriers don’t 

have a chance. 

With more spectrum, the possibilities of the abuse increase and 

the Commission should pay attention to that. 

Thank you. 

Senator KOHL. Mr. Berry. 

Mr. BERRY. Yes, sir. Mr. Chairman, thank you. 

As I had mentioned in my opening statement, we believe there 

should be spectrum divestiture, especially after a thorough review 

at the FCC, with a new spectrum screen, and identify those areas 
40 

where we can more efficiently and effectively utilize that spectrum 

for competitors in the marketplace. 

Commercially reasonable roaming agreements, requirements that 

are permanent. This spectrum is being taken now to the market. 

There will be four competitors that will not now come into the marketplace, which we viewed as potential roaming partners. 

Now, Verizon is going to lease their spectrum, i.e., allow Comcast 

to sell their devices as an agent. So Comcast is coming into the 

wireless market as a competitor, but only as an MVNO, and no one 

will be able to roam on the MVNO arrangement of Comcast. 

Verizon will control that wholeheartedly. 

The last thing is affordable back-haul, because, yes, you can have 

a very effective, efficient network if you have access to back-haul, 

and we haven’t even mentioned the fact that Comcast owns over 

20,000 Wi-Fi hot spots, i.e., offload opportunities between here and 

New York, very important for the wireless industry to stay competitive. 

And, of course, interoperable standards. Every customer wants to 

know, wherever they are, whenever they make a call, it ought to 

be able to go through, and we agree with that. 

Senator KOHL. Thank you. 

Mr. Rule. 

Mr. RULE. Thank you, Mr. Chairman. 

I, first off, want to clarify that I’ll defer to others on what the 

FCC should do, and let me just focus on what DOJ might do. 

From the perspective of DOJ and the antitrust laws, there first 

ought to be a determination that there is a violation of law, and 

then any fix, if you will, should flow from that. 

With respect to spectrum, again, as I’ve said, I question whether 

or not they’re going to be able to prove that that’s a violation. But 

if they did, then one would think that either they would prevent 

that deal from going through or they might require that Verizon 

Wireless not acquire all of it. 

But, again, that depends on what they conclude in concluding 

that the deal would lessen competition. 

With respect to the collaboration agreements, again, that really 

depends on the agreements themselves. Those, though, are pretty 

easy to fix and to the extent that the government sees that there 

are problems that create bad incentives in terms of keeping these 

two companies independent and competitive in their relative 

spheres, then the government can ask the parties to change the 

agreements in that way. 

So, again, it depends on what the agreements say and how the 

government—if the government concludes any particular feature of 

those agreements violates the antitrust laws. 

Senator KOHL. Finally, Mr. Milch, do you accept all of these conditions? 

[Laughter.] 

Mr. MILCH. Surprisingly, no, Mr. Chairman, I don’t. Let me explain. I won’t go to the suggestion that it should simply be denied 

outright. I don’t think that there is any basis for that. 

However lugubrious people feel at the moment, the Telecom Act 

of 1996 was a spectacular success and has produced unbelievable 

public good and will continue to do so. 
41 

As for the notion of teeth in the build-out requirement, the spectrum at issue is already subject to the AWS substantial service requirements that were put on it when it was auctioned. No party 

has shown that those have not been complied with. And to the extent that they want to provide new or novel things, that’s inconsistent with the Commission build-out rules, which Verizon is not 

seeking to change. 

It will be subject to whatever the build-out requirements were. 

We’re getting it, obviously, many years later than we would have 

originally, but we will stick to the timeline that the FCC has already put on for the build-out. 

As for interoperability of handsets, back-haul and roaming, it’s a 

very complete regulatory agenda that Mr. Berry has put forward. 

He puts it forward very ably on every transaction that comes 

around, and it’s—in fact, he’s very successful. 

The FCC has dealt with every one of these or is dealing with 

them. It has issued roaming rule. It is looking at back-haul. Just 

today, it issued a notice of proposed rulemaking on interoperability 

at Mr. Berry’s request. 

So all of these issues are squarely teed up at the FCC, and that 

is the appropriate place to deal with them, not in the middle of a 

license transaction. 

Mr. BERRY. With his help, we might be able to move some of 

those even a little faster in the future. 

Senator KOHL. Do you want to make one follow-up? 

Mr. WU. Just one comment. With respect, I think the current 

build-out requirements can’t be considered effective given the fact 

that in the—first of all, they are 15 years long. And second of all, 

given the fact that they didn’t prevent cable from sitting on this 

spectrum for multiple years, which everyone was complaining 

about. 

So it’s clear that the current requirements are not good enough 

and, at the minimum, that’s what the Commission should do is 

speed up this build-out. 

Senator KOHL. Very good. 

Senator Lee. 

Senator LEE. At the conclusion of and in response to my last 

round of questioning, Mr. Kelsey made a pretty articulate plea, a 

pretty articulate statement regarding the value of your spectrum 

holdings, Mr. Milch. I just wanted to know if you wanted a chance 

to respond to that. 

Mr. MILCH. Thank you, Senator. Spectrum does have different 

propagation and other qualities. There is no doubt about it. However, the FCC has a very well-established approach to dealing with 

this issue. 

It has a spectrum screen, which, as ably said, below which there 

is a presumption that there is no competitive harm and above 

which it deserves further look. 

If there is a—the whole reason that the value proposition has 

been put forward with this weighting, which is a very arcane and 

mysterious formula that’s been proposed, is because the existing 

rules, which have been set out and upon which businesses rely to 

do their business, defeat the effort to stop this transaction, because 
42 

there are no competitive effects under the rules that are in place 

right now. 

If there is to be some new set of rules, if the Commission were 

to want to look at the spectrum screen again, that certainly is 

something that’s within its power to do in a separate proceeding. 

I would note, however, that in such a proceeding, the denominator 

of the spectrum screen, that is, the amount that’s available to be 

used, would likely increase, not decrease, because we are finding 

that there is much more available broadband spectrum than is currently being counted. 

Indeed, just today, the Commission decided that it was going to 

start a proceeding to see if one of the satellite companies could 

reuse its 40 megahertz of spectrum that is now used for satellite 

for broadband. And there are other pockets of such spectrum which 

are available for broadband use. 

Senator LEE. So you do not necessarily disagree with those who 

are suggesting that the spectrum screen ought to be revised. 

Mr. MILCH. No. I do not believe the spectrum screen is deserving 

of revision, certainly not in the middle of a license proceeding, Senator. But I also would point out that we would—that if such a spectrum screen were to be revised, an appropriate spectrum screen 

would include more spectrum and not less. So it would actually decrease Verizon Wireless’ share of the spectrum. 

Senator LEE. Such that the ratio between the numerator and the 

denominator under the new spectrum screen analysis would, in 

fact, be lower. 

Mr. MILCH. Yes, sir. That’s what we believe. 

Senator LEE. Is the precedent, by the way, for the FCC coming 

up with a spectrum screen, a new spectrum screen or something 

analogous to that in the middle of a transaction without going 

through the notice and comment process first? 

Mr. MILCH. I can’t give you a complete answer, but I would note 

that the same argument was made very recently in a deal between 

AT&T and Qualcomm. The FCC declined to change its spectrum 

screen. The exact same sort of requests were made, and it declined 

to do so in the middle of a license transaction. 

Mr. BERRY. Senator, if I can respond to that, because they did 

address the issue on the spectrum screen, saying that it should reflect four National competitors in the AT&T/Qualcomm. But specifically, the spectrum screen is not a product of an NPRN, a notice 

of public rulemaking or inquiry. 

Verizon itself argued for a change in the spectrum screen when 

they bought Alltel, and that was during the middle of a negotiation, and there’s dozens of examples on record where the spectrum 

screen, after the spectrum cap was removed, was modified and 

changed during the ongoing proceeding, and it’s happened from 

AT&T and Verizon, and many of our carriers, also. 

When it is to your advantage, you want it changed to your advantage. When it’s not, you want it held the way it is. 

Senator LEE. And it was imposed initially without a notice of 

proposed rulemaking. 

Mr. BERRY. My understanding is that that is a tool that the FCC 

used and developed over a period of years after the spectrum caps 

were eliminated. 
43 

Mr. MILCH. That is true, Senator. It is a tool. And I would point 

out that the spectrum screen changes because more spectrum becomes available or goes off the market. So that’s one of the reasons 

it changes. 

It’s a flexible tool that allows the denominator to grow and 

shrink depending on what’s available or not available. 

So we believe that it should remain a flexible tool. That doesn’t 

mean, however, that you would have a clear rule about the spectrum screen and then change it in the middle of a license proceeding. 

People may go to the FCC and argue about whether they ought 

to have a different view on what the spectrum screen is. But as 

party to the Alltel transaction, I can tell you, Senator, the result 

of that was the imposition of the spectrum screen and significant 

divestitures as a part of that because they went above the spectrum screen. 

Senator LEE. Before I run out of time, Mr. Milch, I want to ask 

you. Can you comment about Verizon’s need for additional spectrum and tell us whether you agree with Mr. Berry’s claims about 

unused spectrum and what Verizon might be doing to ensure that 

excess spectrum is being put to good use? 

Before you do that, I want to commend you on a very effective 

use of the word ‘‘lugubrious.’’ 

[Laughter.] 

Senator LEE. I didn’t expect to use that word today or to hear 

it in the context of the 1996 Telecommunications Act. So good job. 

Mr. MILCH. Thank you, Senator. I’m going to get a lot of ribbing 

for that, Senator. Thank you very much. 

[Laughter.] 

Mr. MILCH. Yes. Thank you for the opportunity. As I pointed out 

with my chart earlier, Verizon Wireless is the most efficient user 

of spectrum in the Nation. So we very much disagree with the notion that there is any warehousing going on. 

In the mobile world, them’s fighting words, and it’s not true 

about Verizon Wireless. We invest more than anyone else, we utilize—we have the most efficient network, and we take all sorts of 

steps, from an engineering perspective, to further increase the use 

of our spectrum that we do hold as quickly as we can. 

The notion that we have somehow warehoused this goes directly 

against all the facts that are on the record. 

Senator LEE. Thank you very much. 

Senator KOHL. Thank you very much, Senator Lee. 

And, Senator Blumenthal, you have the last crack at it. 

Senator BLUMENTHAL. Thank you. While we are on the subject 

of linguistics, I want to compliment Mr. Cohen on the use of the 

word ‘‘optionality,’’ which probably has not been uttered with great 

frequency in these halls. I had not expected to hear ‘‘lugubrious’’ 

in the context of antitrust law, but some might say that it could 

be applied to enforcement from time to time. 

I want to just briefly explore an area which I think is important 

to the future of this agreement, assuming it goes forward, and it 

relates to the value of the marketing agreements to the respective 

parties, and so it is relevant to the antitrust issues here. And that 
44 

is the potential sharing of information, consumer information, and 

the security measures that will be applied to that information. 

And I know that you are aware of the importance of this area. 

It may not be one that you are prepared to address today. And so 

if you wish to comment on it in more detail in a written submission, I would be perfectly happy to accept it in that way. 

But, essentially, the focus of my interest is in protecting consumer information that is obtained by virtue of the agreements and 

the shared marketing and so forth and the keeping of that information confidential or notifying consumers in the event that it is 

shared or sold or exchanged with other companies as part of agreements that may not be encompassed by this direct agreement. 

So if you wish to comment on that area, I would welcome it. 

Mr. COHEN. I will comment quickly, and we can provide a much 

more detailed response. I think you have to break the agreements 

down. Let’s do the easy one, which is the reseller/MVNO agreements. Once they go into effect, those customers that we will market to and that we will sell the service to over the Verizon Wireless 

network are our customers, and, in fact, no customer information 

would be shared with Verizon Wireless. They are integrated into 

our system and they would be just like our regular customers. 

In the marketing agreements, and this is—Mr. Milch can help 

me or correct me, but the structure of these agreements is that if 

we sell—if we, Comcast, sell a quad-play, for example, and we sell 

a Verizon Wireless product with an Xfinity triple play, the wireless 

customer is a Verizon Wireless customer. They are not a Comcast 

customer. 

It’s an artificial quad-play. They get a Verizon Wireless bill. 

They’re a Verizon Wireless customer. We don’t get access to their 

customer information once we’ve sold them the service and vice 

versa. If Verizon Wireless, in a Verizon Wireless store, sells a 

quad-play with a triple-play Xfinity plus a Verizon Wireless phone, 

the Xfinity triple play customer is a Comcast customer. And it’s no 

different than when Best Buy sells a Comcast—an Xfinity triple 

play in the Best Buy store. 

Verizon Wireless and Best Buy do not have access to that customer information. So it’s structured in the traditional way that 

agency agreements are structured to protect the very privacy concerns that the Senator is concerned about. 

Mr. MILCH. And I would only add, Senator, that there is a very 

comprehensive set of rules in the FCC governing both cable information, customer proprietary network information on the telco 

side. All those rules are going to be respected throughout this effort. 

On Verizon’s part, we have a very well-documented privacy policy that’s available to all of our customers, who will be our customers, and all of our activities under these agreements will be 

governed by our privacy policies, which, by the way, we extend to 

our agents if they are acting on our behalf. 

Senator LEE. Thank you. Thank you, Mr. Chairman. 

Senator KOHL. Thank you very much, Senator Lee and Senator 

Blumenthal. 

In closing, I would just like to say that this hearing today, which 

has been very interesting—and I would note that no one has left 
45 

in the audience and we have been at this for two and a half hours, 

which I think is testimony to the expertise and the vigor that you 

have brought to this discussion, and we appreciate your being here. 

The hearing demonstrates that these agreements between 

Verizon Wireless and the four cable companies have potentially farreaching consequences for competition in the wireless phone and 

cable industry. We will continue to examine these issues carefully. 

While this Subcommittee does not have the power to block or 

alter these deals, we very much hope and we expect that the regulators at Justice and the FCC will carefully examine the record 

from today’s hearing and our witnesses’ testimony as they decide 

whether or not to approve these deals and in what form. 

We thank you all for being here. This hearing is closed. 

[Whereupon, at 4:34 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submission for the record follow.] 

(47) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
48 

PREPARED STATEMENTS OF COMMITTEE AND SUBCOMMITTEE CHAIRMEN

United States Senator 

Statement of U.S. Senator Herb Kohl 

Chairman of the Judiciary Subcommittee on Antitrust, Competition Policy & Consumer Rights 

The VerizoniCable Deals: Harmless Collaboration or a Threat to Competition and Consumers? 

March 21,2011 

Today we meet to consider the series of transactions between Verizon Wireless and four of the 

nation's largest cable TV companies announced last December. These deals - coming on the 

heels of the now abandoned proposed merger between AT&T and T -Mobile - are the latest 

transactions that seek to reshape the wireless phone, internet access, and cable TV markets. 

Under these deals, Verizon Wireless, the nation's largest cell phone company, would acquire 

large chunks of spectrum from Comcast, Time Warner Cable, Cox, and Bright House. At the 

same time, these companies have all signed agreements in which Verizon Wireless and the cable 

companies agree to cross-market each others' services and form a joint technology venture. 

The parties to these transactions argue that these deals are highly beneficial both to their 

companies and to consumers. It will give Verizon Wireless additional spectrum necessary to 

meet the exploding demand for Internet applications used by consumers with smartphones. And 

it will permit the four cable companies - which collectively account for over 70% ofthe nation's 

cable TV subscribers - to offer a "quad play" bundle to their customers - video, internet, 

landJine phone, and, now, wireless service as well. 

Yet these transactions have come under serious criticism from consumer advocates and 

competitors. The basic premise of the landmark Telecommunications Act of 1996 was that cable 

companies and phone companies would enter each other's markets and compete. And this vision 

was well on the way to being realized - with cable companies offering landline phone service, 

phone companies like Verizon offering cable TV through its FiOS service,.and both offering 

consumers an on ramp to the Internet so crucial in today's economy. In addition, recent years 
49 

have seen a tremendous expansion of cell phone service and wireless devices as a way both to 

make phone calls and access the Internet. 

Many now wonder if these agreements that we are examining today will roll back these advances 

in competition and even amount to a truce between one of the two largest phone companies and 

over 70% of the cable TV industry. Under these agreements, cable company representatives will 

be present in Verizon Wireless stores. And cable 'representatives will be selling products and 

services that directly compete with Verizon's, including FiOS. After these deals, will Verizon 

continue to develop and aggressively market FiOS? Furthermore, rather than attempt to develop 

competing wireless service with the spectrum the cable companies bought in 2006, the cable 

companies are sel1ing that spectrum to Verizon Wireless and will be offering Verizon Wireless 

services to their customers. 

In addition, Verizon Wireless will be acquiring what is likely the last swath of crucial spectrum 

available for years to come, keeping this vital input for wireless service out of the hands of its 

competitors. After this deal, Verizon Wireless and AT&T will have together two thirds of the 

nation's cell phone customers and the lion's share of the most valuable spectrum. Given the 

exploding consumer demand for smartphones and the spectrum they require, will the other, cell 

phone carriers truly be able to compete? Having won the battle for competition by blocking last 

year's AT &Trr -Mobile merger, are we now in danger of losing the war? 

So we enter today's hearing with more questions than answers, while cognizant of the very high 

stakes for competition and consumers in these transactions. We know that both Verizon and 

Comcast, as well as the other cable companies, believe that they are acting in the best interest of 

their own businesses and shareholders. Yet, we need to ensure that consumers' best interests 

will be served in the long run. We urge the regulators to ensure that nothing in these deals 

reverse the historic gains in competition between phone and cable companies ushered in by the 

Telecom Act of 1996. The fundamental question we must answer is whether these deals will 

bring beneficial new choices to consumers, or amount to previously fierce rivals standing down 

from competition. We look forward to the testimony of our panel of witnesses to shed light on 

these important issues. 
50 

Statement of Senator Patrick Leahy (D-Vt.) 

Chairman, Senate Judiciary Committee 

Subcommittee Hearing on "The Verizon/Cable Deals: Harmless Collaboration or a 

Threat to Competition and Consumers?" 

March 21, 2012 

Today, the Antitrust Subcommittee examines the state of competition in the wireless 

industry. We are focused on thc sale of valuable spectrum to Verizon Wireless and 

related agreements. I look forward to hearing from our panel of witnesses as they assess 

the merits ofthe proposed sale and agreements, and the state of competition in the 

wireless industry more generally. 

Strong and vibrant competition in the wireless industry is important for consumers across 

the country. Competition increases choice, lowers price, and promotes innovation. 

Late last year, Verizon Wireless and several cable companics announced ajoint venture 

under which the cable companies would sell Verizon Wireless spectrum licenses, and 

entered into certain other relevant agreements. This is a significant transaction that will 

provide Verizon Wireless access to more nationwide spectrum, but will also remove a 

potential competitor from the wireless market. 

The demand for wireless services is at an all time high. Any agreement between Verizon 

Wireless and the cable industry must ensure that the needs of consumers are met and 

competition is not threatened. The Department of lustice and the Federal 

Communications Commission will both examine these transactions, and I have 

confidence in their commitment to ensure a fair investigation and review. 

There is no doubt that putting unused spectrum to use will benefit consumers. In 

Vermont, a few companies hold portions of our airwaves that are not in use today, 

including some that are the subject of this proposed transaction. Leaving this spectrum 

unused means that Vermonters face more dropped calls and fewer wireless options. 

Regardless ofthe outcome of this proposed sale, it is critical that this spectrum be utilized 

in a way that improves service and options for rural customers in Vermont and elsewhere. 

I thank Scnator Kohl and Senator Lee for their continued efforts to raise the profile of 

important competition issues, and to ensure that our antitrust laws are enforced. 

##### 
51 

PREPARED STATEMENTS OF WITNESSES

TESTIMONY 

OF 

RANDAL S. MILCH 

EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL 

VERIZON COMMUNICATIONS INC. 

BEFORE THE 

SUBCOMMITTEE ON ANTITRUST, 

COMPETITION POLICY, 

AND CONSUMER RIGHTS 

COMMITTEE ON THE JUDICIARY 

UNITED STAn:S SENATE 

"THE VERIZONICABLE DEALS: HARMLESS COLLABORATION ORA 

THREAT TO COMPETITION AND CONSUMERS?" 

March 21, 2012 
52 

Good afternoon, Mr. Chairman and members of the Subcommittee. I am pleased 

to appear before you today on behalf ofVerizon to discuss both Verizon Wireless' 

acquisition of currently unused spectrum that we will put to work for the benefit of our 

customers, as well as separate commercial agreements Verizon Wireless has entered into 

with a number of cable companies that will help bring more innovation, choice and 

convenience to consumers. 

Verizon Wireless Needs Spectrum 

The 20 MHz of spectrum that Verizon Wireless is purchasing from SpeetrumCo 

and Cox Communications is today not being used to serve customers; with this purchase, 

it will be deployed to provide the additional capacity that consumers, eompanies, and 

entrepreneurs need to meet their rapidly growing data demands and upon which they 

depend. 

Providing the best possible network experience for our customers has been a 

guiding principle for Verizon Wireless since its very inception and the company routinely 

wins awards for highest network quality from independent, third party evaluators. To 

cite just two: Based on a recent survey of customers, J.D. Power and Associates 

concluded that Verizon Wireless offers the best customer service in the wireless industry. 

In late February J.D. Power and Associates also concluded that Verizon Wireless has the 

best Network Quality of any national wireless carrier. We have won these awards - and 
53 

many others -- because we have anticipated the needs of our customers and have 

repeatedly invested in our network and in the spectrum required to meet those needs. 

Verizon Wireless' latest investment, and one of our most substantial, is in our 

new 4G Long Term Evolution, or LTE, network. L TE gives our customers average 

download speeds of 5-12 Mbps - up to ten times the speeds available on 3G networks. 

As of today, Verizon Wireless's LTE deployment covers more than 200 million people in 

196 markets across the United States, incredible progress since we tumed on the first 

LTE market a mere IS months ago, in December 2010. Verizon Wireless recently 

announced that we are accelerating by six months our plans to cover 95% of the U.S. 

population with LTE, meaning we'll achieve that goal for the country by mid-20I3. And 

through our L TE rural initiative, we are working with fifteen rural carriers to help ensure 

this critical innovative technology is also available to rural America. Verizon Wireless' 

rapid deployment of this network has placed the United States at the forefront of global 

LTE deployment. Following our lead, other companies are now moving aggressively 

ahead to deploy their own LTE networks. In addition to providing consumers with the 

fastest wireless network in the world, our LTE deployment also provides a platform for 

other companies - ineluding much-needed startup businesses -- to develop new 

technologies and new products that will benefit both consumers and the American 

economy. 

What does this have to do with spectrum? First, Verizon Wireless' network 

quality depends on having adequate spectrum. Without it, we can't provide our 

customers with the high-quality network experience that they expect and deserve. 

Second, the need for spectrum has been heightened by the explosive use of smartphoncs, 
54 

tablets and other data intensive devices, as well as data intensive applications such as 

video and audio streaming. A mobile application and content economy has blossomed 

because of advanced wireless networks. FCC Chairman Genachowski has insistently and 

quite properly emphasized that the ready availability of additional spectrum is essential 

for the expanding ecosystem of mobile applications and content to flourish. Estimates of 

data use have almost always proven to be too conservative. Data usage on Verizon's 

network has been more than doubling each of the last three years, and is expected to 

continue that trend going forward. According to FCC estimates the demand for mobile 

data by 2015 will be 25-50 times greater than it was in 2010. Customers and indeed the 

entire mobile Internet economy are benefiting from our tens of billions of dollars in 

wireless network investment, and the responsive multi-billion dollar investments of our 

competitors. Our customers and our competitors' customers are streaming movies and 

video clips over their wireless devices, uploading and downloading large .pdf files, and 

doing business on the go. That's great for all wireless users. Just as importantly, it's 

been great for Silicon Valley and Silicon Alley and the many places between. There 

currently are more than half a million apps available for both Apple and Android devices. 

Content providers have more ways to get their content to people who want to consume it. 

This entire ecosystem depends on the availability of high-quality, advanced networks. 

Vcrizon Wireless has taken active steps to help foster the mobile broadband 

economy by promoting the development of third party devices and applications that use 

the LTE network. We have established a Technology Innovation Center in Waltham, 

MA, to help develop technology companies that arc focused on LTE and the 

opportunities created by our investments in mobile broadband. Many innovations are 
55 

being developed which will serve a wide variety of industries - including areas of vital 

national importance such as healthcare, energy and transportation, and public safety. For 

example, Verizon Wireless and In Motion Technology recently announced the first 

wireless mobile router system available for securely extending the enterprise network to 

the vehicle over our 4G L TE network. In Motion Technology is widely deployed in 

public safety, public transit and utilities, and will be demonstrating how its onBoardTM 

Mobile Gateway can be used in ambulances. By securely connecting laptops, tablets, 

electrocardiograms (EKGs), Electronic Patient Care Reporting (EPCR), IP cameras, 

Computer Aided Dispatch (CAD) and vehicle diagnostic systems, the onBoard Mobile 

Gateway will improve operational efficiency for emergency responders. We also have 

opened an Applications Innovation Center in San Francisco so that developers large and 

small can work closely with Verizon Wireless and our many partners to create, optimize 

and polish their ideas and tum them into viable applications for wireless customers. 

Finally, we have created a 4G Venture Forum which serves to link innovators and 

entrepreneurs with venture capitalists - again bringing solutions to the market. 

But all this good news also means that there is a tremendous, growing need for 

more spectrum. The Federal Communications Commission predicts that, if additional 

spectrum is not made available in the near-term, mobile data demand will likely exceed 

capacity by 2014, resulting in a broadband spectrum deficit of nearly 300 MHz. And 

other than unused spectrum held by existing owners such as the Spectrum Co. assets 

there's currently no other place to go to buy spectrum. We applaud Congress and the 

Administration for freeing up more spectrum in the landmark legislation you recently 

passed and the President signed into law - but it will be some years before that spectrum 
56 

can be put into use. The only practical solution available now to the looming spectrum 

deficit is to tap the unused spectrum held by existing owners - a solution Verizon 

Wirelcss is undertaking now. 

In some of our largest markets, the spectrum crunch will come soon and start 

hurting our customers - and your constituents - who expect and demand high-quality 

service. And as we recently demonstrated in our FCC filings, we will necd spcctrum to 

meet our customers' growing demands in markets of all sizes, large and small. We will 

need this spcctrum in a number of significant markets by 2013, so there is no time to lose 

in making this spectrum available. It generally takes years, not months, from the timc of 

purchase before new spectrum can actually be used to provide services. Among other 

things, we will need to acquire and deploy network equipment and work with device 

manufacturers to dcvelop and make available L TE devices that can use this spectrum. 

This means we need the spectrum now in order to do the work required to put it to use 

when our customers nccd it. 

We are working closely with the Department of Justicc and the Federal 

Communications Commission as they review our spectrum purchase, and wc're confident 

thc regulators will understand our spcctrum purchase is good not just for Verizon 

Wireless' customers and the mobile broadband economy but that it also creates no 

competitive problems. Why? The spectrum we're buying from Comcast, Time Warner 

Cable, Bright House and Cox is not in use today. Verizon Wireless is not buying a 

competitor and is not buying any customers or facilities. We are only buying spectrum 

not currcntly in commercial use in order to put it to use serving customers, and no 

customer will scc fewer choices or increased prices as a result of this transaction. 
57 

There is no basis for a concern that Verizon Wireless somchow is "hoarding" or 

"warehousing" spectrum. In fact, Verizon Wireless is the most efficient user of spectrum 

in the U.S., serving more customers per megahertz of spectrum than any other carrier, 

despite the explosion of data traffic from smartphonc usage. T-Mobile has made 

allegations in this area, so let's look at the facts. As an example: Verizon Wireless is 

almost twice as efficient in its usc of spectrum as T -Mobile: Verizon Wirelcss scrvcs 

ovcr 1.2 million customers per MHz of spectrum, while T -Mobile serves 660 thousand 

customers pcr MHz of spectrum. Verizon Wireless is so efficient, that after the addition 

of the Spectrum Co. spectrum but before we even put the spectrum to use, we will still be 

the second most efficient uscr of spectrum in the United States. 

Moreovcr, Verizon Wireless is not simply an acquirer of spectrum. We also havc 

worked to rationalize our spectrum holdings when we identify particular blocks of 

spectrum that no longer fit in our network deployment plans, and have made those 

spectrum assets available on the secondary market so they can be put to productive use 

by others. 

Verizon Wireless is an efficient user and good steward of the spectrum we have. 

We have spent $22.3 billion over the last three years - and $8.3 billion in 201 I alone - on 

our network, more than any other wireless company. Roughly half of that spend has been 

investments to increase our capacity within our existing spectrum through numerous 

engineering techniques, such as cell splitting and dcnser cell site deployments. These 

capacity increasing tcchniques are of course available to all carriers that wish to invest in 

them. 
58 

But the most direct answer to charges that Verizon Wireless is somehow taking 

more than its 'fair share' of spectrum is to look to the standards that the FCC has used to 

review this very issue. After acquiring the additional spectrum, Verizon Wireless' 

holdings in nearly all geographic areas will remain below the level where Federal 

Communications Commission precedent says that no further competitive inquiry is 

necessary, because there is "clearly no competitive harm." The FCC employs a spectrum 

"screen" to identify areas below which no further inquiry is needed. The screen is based 

on one-third of the spectrum that the FCC concludes is available for mobile use, and is 

145 MHz in nearly all markets at issue here. Verizon Wireless would remain below this 

level in 2,230 of the 2,276 of the counties covered by the SpeetrumCo licenses or 

nearly 98 percent of the covered counties. In the few areas where the screen would be 

exceeded, it is typically only by a few MHz and there are multiple other providers with 

spectrum in each. 

In summary, Verizon Wireless' purchase of currently unused spectrum from the 

SpcctrumCo companies and Cox addresses a critical need without any harm to 

competition. 

Other Agreements with the SpectrumCo Companies and Cox 

In addition to the spectrum agreement, Verizon Wireless also entered into 

separate commercial agreements with these companies. These agreements are intended 

to address a basic challenge: How to create an opportunity to provide innovative 

national services seamlessly integrating wireline and wireless capabilities. Verizon 
59 

Wireless provides services across the entire United States, but Verizon's wireline FiOS 

services cover only a small part of the country. To justify the investment to create 

innovative converged wireless and wireline products and to offcr convenient bundles of 

scrvices to those customers across the United States who want them, V crizon Wireless 

needed to find wireline partners with footprints that cover the rest of the country. Morc 

than 85% of households servcd by the SpectrumCo companies and Cox are not in an area 

currently served by FiOS. This business need resulted in three sets of agreements. 

First, Verizon Wireless and all four cable companies (Comcast, Cox, Bright 

House and Time Warner) gain the ability to act as a sales agent for the others' services. 

One set of agreements provides for the cable companies to act as agents for Verizon 

Wireless, selling wireless service as part of a bundle of services and receiving a one-time 

commission for the wireless services they sell. Such agent arrangements are not unusual. 

For example, AT&T and Frontier have such a relationship, as do Verizon Wireless and 

CenturyLink. Similarly, Verizon Wireless will act as an agent for the cable companies, 

so if Verizon Wireless sells cable services, we receive a one-time commission. These 

agreements create another sales channel for Verizon Wireless, which has well over a 

thousand agency agreements in place already, and a way for Verizon Wireless to offer a 

new option to customers who are interested in bundled services. In both instances 

where Verizon Wireless or a cable company is acting as an agent the underlying service 

provider (and not the agent) sets the prices for the product being sold. 

Second, Verizon Wireless and the SpectrumCo companies are working together to 

create next-generation technical capabilities enabling customers to more seamlessly have 

wireless devices such as smartphones and tablets interact with home entertainment 
60 

systems and wired computers. For example, wc hope to give our customers the ability to 

share user-generated content across multiple screens and devices in real time -- if you're 

at your child's soccer game, you can send video streams to other family members 

wherever they might be. 

This breakthrough innovation will be good tor consumers and competition, by 

adding a new offering in the already hotly competitive market for converged technical 

solutions. At the same time, nothing in this agreement prevents other innovative 

companies from using our networks to send content to their customers - something that 

many companies from Google to Hulu to Netflix do today - or from developing and 

deploying their own innovative services over our networks. 

Finally, the cable companies that are parties to the agency agreement have the 

option in the future to move away from an agency relationship and instead become 

resellers ofVerizon Wireless services. It will be in their sole discretion as to whether to 

do so, and they will no doubt make this decision based on the competitive environment in 

perhaps the most challenging and rapidly evolving industry in the United States. 

These commercial arrangements will benefit customers. Customers nationally 

will now have the convenience of buying bundled services, if that's what they want. 

Those services often will have a discount - our first offering in Seattle includes a $300 

gift card to induce customers to sign up. Furthermore, customers will get the fruits of the 

companies' innovation venture, making these bundled services more useful, while 

remaining free to choose many other innovative converged technologies. And down the 

road, the cable companies may elect to resell Verizon Wireless' service, adding a 

difterent competitive dimension to the market. 
61 

There's been a lot of ill-informed noise about these agreements, so let me very 

briefly address what I understand the chief concern to be. Critics have complained that 

these agreements somehow signal that Verizon is abandoning its FiOS service. This is a 

groundless concern. 

First, Verizon's shareholders have invested $23 billion into FiOS, and those 

shareholders are only now beginning to sec a return on that massive investment. FiOS 

now makes up 61 % of Verizon landline consumer revenues, and FiOS revenues grew 

18.2% year over year. In just two years, we've grown video penetration in existing FiOS 

areas from 25.4% to 31.5%, and our Internet penetration from 29% to 35.5%. We've no 

intention of slowing down in our competitive efforts indeed our shareholders have 

every economic incentive for us to push ahead. 

FiOS is a hugely successful product that is taking market share from cable and 

satellite competitors because, frankly, it's superior to the products with which it 

competes. FiOS has won numerous accolades, including an industry-leading customer 

satisfaction rating. We're confident that customers will continue to choose FiOS over 

cable services when presented with a choice, and choose a bundle ofVerizon FiOS and 

Verizon Wireless where they have that choice. Verizon Telecom - which is the group 

within Verizon that provides landline consumer services - will continue to vigorously sell 

double plays, triple plays, and quad plays using Verizon Wireless services. 

Thus, we have every incentive to continue to compete hard with FiOS against 

cable to continue our FiOS success. The notion that we would undermine FiOS one of 

the largest capital investments made anywhere in the United States over the last decade -

merely to obtain one-time agency commissions is to ignore the most fundamental facts. 
62 

In short, Verizon is full speed ahead with FiOS and nothing in these commercial 

agreements to which Verizon's wireline FiOS group is not even a signatory changes 

this commitment. 

Conclusion 

From Verizon Wireless' perspective, it is critical that we receive timely regulatory 

approvals for the spectrum we're purchasing from the cable companies. Verizon is proud 

that our investments in L TE and network quality have attracted so many customers using 

so much data, but all that data use has accelerated our need for new spectrum. We're 

investing the money to buy this spectrum and put it to work for our customers; any delay 

in our ability to do so can only harm those customers. 

Verizon also believes the other, separate commercial agreements have significant 

consumer benefits: They will give Verizon Wireless the ability to offer convenient 

bundles of services to all of our customers across the United States and hold open the 

promise of new and innovative products and services that customers will want and need. 

I appreciate the opportunity to be here and I look forward to your questions. 
63 

TESTIMONY OF 

DAVID L. COHEN 

EXECUTIVE VICE PRESIDENT 

COMCAST CORPORATION 

BEFORE THE 

U.S. SENATE COMMITTEE ON THE JUDICIARY 

SUBCOMMITTEE ON 

ANTITRUST, COMPETITION POLICY, AND CONSUMER RIGHTS 

HEARING ON 

"THE VERIZON/CABLE DEALS: HARMLESS COLLABORATION OR A 

THREAT TO COMPETITION AND CONSUMERS?" 

MARCH 21, 2012 

Mr. Chainnan and Members of the Subcommittec: 

Thank you for inviting me to testify today. I welcomc the opportunity to discuss the 

intensely competitive markctplace for communications and media services and how 

SpectrumCo, LLC's ("SpectrumCo") proposed sale of spectrum to Verizon Wireless and 

the commercial agreements entered into between Verizon Wireless and Comcast, Bright 

House Networks, LLC, Cox Communications, Inc., and Time Warner Cable Inc. 

(collcctively, the "Cable Companies") will promote competition, bring more convenience 

and choice to consumers, increase investment, and drive innovation in next-generation 

technologies. 

At the outset, it is important to recognize that the vidco, high-speed Internet, ana 

telephone marketplace in which Comcast operates and the wireless marketplace in which 

Verizon Wireless operates are intensely competitive. American consumers enjoy access 

to a greater abundance and diversity of video programming, delivered in more ways, on 

more devices, by more competitors, than at any point in history. The story of broadband 

competition is one of dramatic increases in capacity and speeds, coupled with 

consistently declining prices per megabit of service. And, for the first time in history, the 

cable industry offers a meaningful facilities-based alternative to historical incumbents in 

providing wireline voice service. The same is true of competition in the wireless 

business: consumers have an abundance of options for obtaining wireless services and 

devices, and their appetite for broadband mobility is accelerating rapidly. 

Nothing about these transactions will reduce this robust competition in any way. The 

spectrum sale is just that - an assignment of licenses only (the "License Assignment"). It 

involves no transfer of customers, assets, or operating businesses. And, the series of 

commercial agreements the parties have entered into (collectively, the "Commercial 

Agreemcnts") are the same sorts of agreements that have stimulated competition and 

innovation in the marketplace for decades: reseller agreements that allow the Cable 

Companies to elect to sell individually-branded wirelcss scrvices using the Verizon 

Wireless network (the "Reseller Agreements"); a research and development ("R&D") 
64 

joint venture agreement to develop innovative new technologies (the "Innovation 

Technology Joint Venture Agreement"); and, finally, agency agreements that authorize 

the companies to act as sales agents for each others' services (the "Agency Agreements"). 

All the companies that previously provided voice, video, broadband, and wireless 

services will continue to do so. These transactions will only increase consumers' options, 

not limit them, and will allow us to answer consumers' calls for "anytime, anywhere" 

communications by bringing amazing new devices and services into a marketplace 

already crowded with innovators. The simple fact is that these transactions are entirely 

additive for consumers - more choice, more competition, more investment, and more 

innovation. 

I want to make three main points about the License Assignment and Commercial 

Agreements. 

First, the proposed License Assignment will benefit consumers and further the spectrum 

policy goals of Congress, the Administration, and the National Broadband Plan. The 

President has recognized that our country's "new era in global technology leadership will 

only happen if there is adequate spectrum available to support the forthcoming myriad of 

wireless devices."l Approval ofthe sale is the best and quickest way to put spectrum not 

currently being used to provide services to eonsumers in the hands of a company that will 

use it to meet consumers' rapidly escalating demand for broadband mobility. 

Second, the Commercial Agreements will provide short- and long-term benefits to 

consumers. They give the Cable Companies a path to quickly and efficiently offer 

wireless services in eompetition with the multiproduct bundles being offered by AT&T, 

DIRECTV, and other competitors. These bundles provide consumers with more choiee 

and convenience and increased competition. They also enable Verizon Wireless to offer 

its customers new options for subscribing to wired video, voice, and high-speed Internet 

services. And, through the technology joint venture, the companies expect to develop 

technologies that offer seamless conneetivity and enhanced features and services across 

multiple platforms. By enhancing the Cable Companies' and Verizon Wireless's own 

products and services, the Joint Venture will compcte with similar solutions that AT&T, 

Dish Network, Google, Apple, Microsoft, and others already have introduced into the 

marketplace. This, in tum, will spur other companies to respond, perpetuating a cyele of 

competitive investment and innovation. 

Third, the License Assignment and Commercial Agreements are consistent with the 

Communications Act, FCC rules, and the antitrust laws, and will promote the 

Subeommittee's competition polieies as well. What should not be lost in all the rhetorie 

is the faet that neither the License Assignment nor the Commercial Agreements will 

reduce or harm competition in any product or geographic market. Contrary to the elaims 

of certain parties, the License Assignment and Commercial Agreements will not reduce 

Verizon Teleeom's or the Cable Companies' incentives to compete vigorously against 

President Baraek Obama, Unleashing the Wireless Broadband Revolution (June 28, 2010), 

available at hltp:iI'Yly'l'L}vhitchousC.20V/thc-prcss-otlkdprcsidcntial-memoranJum-unlclishiDg.-wir£lcssc 

Q.r~,-a_(.Ur,lrl<l:[i;..'_2llJt!sm. 

2 
65 

each other, will not facilitate collusion, and will not otherwise blunt or impcde 

competition. The harms that have been alleged are hypothctical and speculative, and 

opponents of the transactions several of which are competitors that simply fear 

increased competition - ignore thc benefits thc transactions will bring to consumers. 

Similarly, criticisms that without thesc agreements, the Cable Companies would build a 

wirelcss nctwork and Verizon would further expand its FiOS footprint beyond its current 

plans ignore the reality that the companies involved here made the dccisions not to do so 

well before this transaction. The antitrust laws are not designed to force companies with 

fiduciary obligations to their sharcholders to undertake business decisions that they havc 

concluded do not make sound business sense. 

I. THE LICENSE ASSIGNMENT IS AN EFFICIENT WAY TO TRANSFER 

SPECTRUM TO A COMPANY THAT WILL USE IT TO PROVIDE 

SERVICES TO CONSUMERS. 

For many years, Comcast has believed that it needed a comprehensive wircless strategy. 

In 2005, the Cable Companies partnered with Sprint Nextel to form Pivot Wireless, a 

$200 million joint venture to develop a wirelcss stratcgy for delivering advanced wireless 

services to the companies' customcrs. 2 The following ycar, the joint venture partners 

created SpectrumCo in order "to obtain greater flexibility in developing options for more 

advaneed wireless services," including exploring the possibility of building new 

networks.3 As has been the case with many busincss plans, however, subsequent 

developments in the marketplaee significantly altered the technological and economic 

landscape. Like everyone else, SpectrumCo has had to adapt to this new marketplace. 

A. SpectrumCo's Wireless Strategy. 

For nearly two decades, the concept of technological "convergence" has held out promise 

that traditional single-service networks such as the telephone and cable networks 

could be upgraded and re-engineered to deliver multiple communications services to 

residential customers. With convergence, providers could offer consumers a one-stopshop for discounted bundles of video, voiee, and Internet services, and the convenience of 

one integrated bill. Convergence and its benefits, however, would not happen overnight. 

Press Release, Comeast Corp., Sprint Nextel. Comeast. Time Warner Cable. Cox Communications 

and Advance/Newhouse Communications to Form Landmark Cable and Wireless Joint Venture (Nov. 2, 

2005). 

Press Release, Corneas! Corp., Cable Consortium AcqUires Spectrum Licenses Covering National 

Footprint (Oct. 5,2006). The original SpeetrumCo partners included Comcast, Time Warner Cable Inc., 

Cox Communications, Inc., Bright House Networks, LLC, and Sprint Nextel Corporation. In 2007, Sprint 

withdrew from SpectrumCo, and the SpectrurnCo members purchased Sprint's interest for an amount equal 

to Sprint's capital contribution to the joint venture. In 2009, Cox withdrew from Spectrum Co, taking with 

it the share of A WS spectrum to which it was entitled under the Spectrum Co LLC agreement. Today, 

SpectrumCo is owned by Comeast (63.6 percent), Time Warner Cable (31.2 percent), and Bright House 

(5.3 percent). 

3 
66 

Cable companies played a leading role in driving convergence when we were thc first to 

deploy a reasonably-priced residential broadband Internet service back in 1996.4 Since 

then, cable companies invested more than $185 billion to upgrade their networks to offer 

consumers broadband Internet service along with a host of other advanced services, such 

as high-definition television, video-on-demand, digital video recorders, and a residential 

voice-over-IP telephone service.s Cable companies made these investments despite the 

high risks associated with the venture and negative predictions about the cable 

companies' success espoused by industry leaders, market analysts, and technology 

experts. 6 In the late 1990s, cable operators began to offer discounted "double play" 

bundles of video and broadband Internet services, and in the early 2000s, we began to 

offer discounted "triple play" bundles of video, Internet, and wireline voice services in 

certain markets. 7 

Not wanting to be left behind, the telephone companies began to deploy their own 

broadband Internet offerings bundled with their traditional voice services. Satellite 

providers, working with the telephone companies through agency agreements - the very 

same types of agency agreements the Cable Companies have entered into with Verizon 

Wireless - followed with their own bundles of video, voice, and broadband Internet 

service.8 In 2004, telephone companies and satellite video providers, began offering 

In the mid-1990s, dial-up was the primary means by which consumers could access the Internet. 

Although ISDN and T-l services were potential alternatives at the time, they were far too costly to be a 

realistic option for most consumers. See Intelligent Network News, Citizens Group Break, iSDN Catch, 

Apr. 15, 1992, available at LEXIS, News Library (noting that, in addition to service fees, "subscribers will 

have to shell out betw~'Cn $500 and $1,000 for the ISDN board that will go into their personal computers"); 

FCC, Cable Scrvs. Bureau, Broadband Today: A Staff Report to William E Kennard. Chairman, Federal 

Communications Commission, on industry Monitoring Sessions Convened by the Cable Services Bureau 27 

& n.73 (Oct. 13, 1999), available at http://www.tcc.g(\v/BuJ:~aus/(.:.!blc;Reports!b.rgadbandtodav.pdf 

("With a price range of$300 to $3000 per month, the TI business generated high profit margins for the 

telephone companies. Since the price point of DSL was lower, ranging from $50 to $1000 per month 

(depending on the type of DSL), the deployment ofDSL service would undercut the TI business."). 

See National Cable & Telecomm. Ass'n, Cable industry Capital Expenditures 1996-201 i, 

http://www.ncta.comiSlatsflnfrastructurcExpcnsc.aspx (last visited Feb. 27, 2012). As a result of this 

significant investment, millions of consumers have access to affordable residential broadband service. 

See, e.g., Brahm Eiley, Can Cable Companies Afford to Believe Their Own internet Hype?, 

Digital Media, May 31, 1996, available at LEXIS, News Library ('The facts at hand would seem to 

indicate that it's not possible to recoup the investment, much less make money on cable-based two-way 

Internet access .... Right now, it appears as if cable companies may run out of money before they hit the 

Internet jackpot."). 

See Annual Assessment of the Status of Competition in the Market for the Delivery of Video 

Programming, Seventh Annual Report, 16 FCC Red. 1605 'lI49 (2001) ("Virtually all the major MSOs 

offer Internet access via cable modems in portions of their nationwide service areas."); id. '155 ("MSOs, 

such as Cox and AT&T, continue to deploy circuit-switched cable telephony. Others, like Cablevision and 

Comcast, are offering cable telephony on a limited basis, waiting instead for IP technology to become 

widely available before accelerating rollout of telephone services to customers."). Not until the widespread 

deployment of cable digital voice service in 2005 and 2006 were cable companies able to replicate 

competitors' triple-play bundle of video, Internet, and wireline voice in most markets. 

See id. 'lI'lI77-79, 121 (highlighting DBS broadband Internet services and noting that telephone 

companies were marketing DBS video services); see also Annual Assessment of the Status of Competition 

in the Market for the Delivery of Video Programming, Tenth Annual Report, 19 FCC Red. 1606 'lI1 18 

4 
67 

"quadruple-play" packagcs of video, Internet, residential voice, and wireless services by 

enterin~ into joint-marketing agreements to sell each others' scrvices in a discountcd 

bundle. At the time, the Cable Companies had not developed a strategy for how we 

could compete in a marketplace where consumers might want bundled options that 

included wireless services. The Cable Companies' joint venture with Sprint was created 

to explore how we could change that. 10 

The hope was that the joint venture would enable Comcast and its partners to "offer 

consumers access to the expanded four element bundle ... or any combination of 

services including video, wireless voice and data services, high-speed Internet and cable 

phone service" and develop and offer new services "to customers through a combination 

of 1,600 Sprint retail stores, cable retail outlets and other third-party distributors.,,11 

Although the joint venture originally contemplated that these services would be delivered 

using Sprint's network, the FCC's AWS auction offered the opportunity to explore the 

use of this spectrum as a means to provide wireless services and, thus, SpectrumCo was 

created. 

In September 2006, SpectrumCo was the successful bidder for 137 Advanced Wireless 

Services ("A WS") licenses, 122 of which it holds today and 30 (because the licenses 

were partitioned) of which Cox holds. SpectrumCo purchased the A WS licenses as a 

first step in developing the capability to provide its owners' customers with new and 

advanced wireless services. The scale, type, and business cases for such services were 

not yet determined at the time of the auction. SpectrumCo did not acquire the licenses 

with the goal of simply launching the company into a capital-intensive and competitive 

marketplace without a sound business plan, and it proceeded over the next several years 

to develop and explore potential uses of the spectrum, including: 

(2004) (HBellSouth, SBC, and Qwest have all recently announced agreements to sell DBS service as part of 

a telecommunications bundle."). 

See, e.g., SHC Communications Adds New "Dish" to the Menu, Launches "Quadruple Play" 

Bundle with Satellite TV, Business Wire, Mar. 3,2004, available at 

http://findartic\cs.cOlll/p/m1icicsimi mOllN!is 2()O~ !\'larch 3!ai 113829987/. 

10 

" 

Press Release, Comcast Corp" supra note 2, 

Id, 

5 
68 

• Clearing Incumbent Microwave Links from the A WS Spectrum. SpectrumCo 

identified more than 500 incumbent microwave links that would need to be 

cleared in order to deploy services using the spectrum. 12 SpectrumCo spent more 

than $20 million to clear or confirm the clearance of these microwave links.13 

• Testing 4G Technologies and Equipment for Use with the AWS Spectrum. At 

the time of the A WS auction, there was no A WS equipment available to auction 

winners. Between 2007 and 2009, SpectrumCo created and operated an A WS 4G 

technology test bed in King of Prussia, Pennsylvania to evaluate the three leading 

4G technology candidates at that time: WiMAX, Ultra Mobile Broadband, and 

Long Term Evolution ("LTE,,).14 SpectrumCo subjected each 4G technology to a 

set of live, operational tests that included installing transmission equipment at 

several outdoor cell sites and testing prototype handsets with each 4G technology 

at three fixed locations and on a l2-mile drive route. 15 After the King of Prussia 

tests, SpectrumCo collaborated with Nortel on LTE testing in the A WS band and 

obtained performance data from the multi-site LTE system at Nortcl's Ottawa, 

Canada research and development facility. The Nortel data reinforced 

SpectrumCo's conclusion that LTE was the optimal technology for use in the 

AWS band. 16 

• Facilitating the Testing of Equipment for Use with the A WS Spectrum. 

SpectrumCo also leased spectrum to original equipment manufacturers, including 

12 See Verizon Wireless-SpeclrumCo Application Form 603, WT Docket No. 12-4, Ex. 4'13 (Dec. 

16,2011) (Declaration of Robert Pick) ("Pick Decl."), available at 

http://transition. fcc.gov/transaction/vC'rlzonwircicss-spcctrumcocox.html; see also Service Rules for 

Advanced Wireless Services in the J. 7 GHz and 2.1 GHz Band~, Report & Order, 18 FCC Red. 25, 162 ~ 70 

(2003). The Commission established an initial license term of 15 years for licensees in the AWS-I band, 

agreeing with commenters that argued that the need to clear the band and relocate incumbents warranted a 

longer-than-usual initial license term: 

AT&T Wireless, Cingular, CTIA, Ericsson, RCA, and Verizon Wireless argue that given the 

relocation and band clearance issues associated with these bands, it makes sense to adjust our 

usual ten-year license term. We agree with these commenlers that the circumslances surrounding 

the future development and deployment of services in these bands warrant an initial license term 

longer than 10 years in order to encourage the investment necessary to develop these bands. 

!d.; see also Letter from James A. Assey, Executive Vice President, NCTA, to The Honorable Jay 

Rockefeller, et a1. (Mar. 3, 2(11) ("With respect to the AWS spectrum held by several cable companies, it 

is well-understood that it will take years to clear that spectrum of incumbent licensees and build out an 

advanced broadband wireless network."). 

I) See Pick Decl. ~ 3. 

14 Leading wireless equipment manufacturers, including Aleatel Lucent, Qualcomm, and Huawei 

participated with SpectrumCo in the King of Prussia tests. 

15 

16 

See Pick Decl. ~ 5. 

See id. ~ 8. 

6 
69 

Qualcomm, Nokia, and Samsung, to tcst deviccs for use in the A WS band. 17 

These leasing activities further facilitated the development of the AWS spectrum. 

• Exploring Alternative Scenarios/or Use o/the AWS Spectrum. Even while 

these technical efforts were underway, SpectrumCo investigated alternative ways 

that its owners might use the A WS spectrum to provide their customers with 

advanced wireless services. For example, SpectrumCo entered into business 

arrangements with two nationwide wireless companies, Sprint and Clearwire; for 

a variety of reasons, those arrangements ultimately were not successful. 

SpectrumCo also considered other acquisitions, joint ventures, and network 

sharing arrangements with other wireless companies, l8 but concluded, for a 

variety of reasons, that each had significant limitations and would not provide a 

comprehensive and viable long-term wireless solution. 

SpectrumCo expended substantial resources investigating these options and "did 

everything a reasonably diligent new entrant A WS licensee might be expected to do 

within the first third of its license tcrm and took meaningful steps to develop, use, and 

identify long-term business plans for the speetrum.,,19 SpeetrumCo concluded that the 

costs and risks of building a wireless network were substantial and had increased greatly 

since it had acquired the licenses; depending upon how such a network was defloyed, the 

cost would be at least $10-11 billion with a very uncertain business outeome. 2 

SpectrumCo also concluded that, although 20 MHz of A WS spectrum might be sufficient 

to initially deploy a wireless network, ifit were successful in attracting a significant 

number of customers, it ultimately would have to incur further costs to acquire additional 

spectrum to serve those customers and meet their increasing demand for mobile 

services. 2l Since SpectrumCo acquired the AWS spectrum, consumer demand for 

wireless broadband services has exploded. In June 2007, just seven months after 

SpectrumCo acquired the A WS licenses, the first iPhone became available to consumers, 

17 See id. ~ 9. 

See id. ~ 16. 

19 See Verizon Wireless, et al. Joint Opposition to Petitions to Deny and Comments, WT Docket No. 

12-4, Ex. 3, at 17 ~ 35 (Mar. 2, 2012) (Declaration of David E. Borth) ("Borth Decl."). 

20 See Pick Decl. ~ 11. 

21 See Verizon WireJess-SpectrumCo Application Form 603, WT Docket No. 12-4, Ex. I, at 21-22 

(Dec. 16,20 II) ("Public Interest Statement"), available af 

http://(ransition.fcc.gov/transactioniverimnwireless-spectrumcocox.html; see also Pick Decl. ~ 12 

("SpectrumCo recognized that consumers' appetite for data rich and spectrum intensive services is growing 

rapidly and believed that this dynamic would continue for the foreseeable future."); Borth Decl. at 24 ~ 48 

("SpectrumCo reasonably determined that 20 MHz of A WS spectrum was not enough to fulfill the longterm business plans of its owners .... "). As the FCC has acknowledged, other industry players have 

reached the same conclusion: "operators, regulators and others have attempted to forecast the amount of 

spectrum that will be needed. Given current trends and future uncertainty, virtually all the major players in 

the wireless industry have stated on the record that more spectrum is needed. Estimates range from 40 to 

150 megahertz per operator." FCC, Connecting America: The National Broadband Plan 84 (20 I 0) 

("National Broadband Plan") (citations omitted; emphasis in original). available af 

htlp:iidownload.broadbantl.!!ovlplan!national-broadbal1d.::nl!!Iu>dD 

7 
70 

with the iPad following in 2010.22 The first Android-powered phone beeame 

commercially available in late 2008.23 As the President's Council of Economic Advisors 

reported just last month, "Thanks to the proliferation of mobile devices with wireless 

internet access, along with the growth of media-rich consumer applications, the volume 

of data traffic traveling over the wireless networks has been exploding.,,24 And this 

growth is expected to increase significantly more in the years to come.25 In short, "[t]he 

surge in wireless data traffic has caused a 'spectrum crunch'" that all wireless providers, 

regardless of their current spectrum assets, are experiencing?6 

Moreover, as wireless broadband usage has expanded, speed has become an increasingly 

important end-user consideration, as well as a differentiator among wireless competitors, 

as is reflected in the frequent advertising touting mobile providers' speeds?7 As one 

analyst recently noted about the release of the new 4G-equipped iPad, '''This is the 

device people want. They want the fastest speed. ",28 Speed and spectrum capacity arc 

directly related, and high-speed serviccs demand substantial bandwidth. To meet this 

increasing demand, SpectrumCo would have had to acquirc significantly more spectrum 

- and incur substantial costs to provision and build the network.29 Acquiring more 

spectrum, however, would have increased the cost of deploying the service; but just as 

importantly, it was unelear when additional spectrum licenses would be available.3D 

22 See Press Release, Apple, iPhone Premieres This Friday Night at Apple Retail Stores (June 28, 

2007), available at http://www.applc.comipr/libraryi2007/06/2SiPhonc-Prcmicrcs-This-Friday-Night-atAppic-Rctail-Storcs.html; Press Release, Apple, Apple Launches iPad (Jan. 27, 2010), available at 

http://www.apple.com/prfl ibrarv!20 1 % i !27 Apple-Launches-; PaJ.hlm!. 

23 See Google, The First Android-Powered Phone (Sept. 23, 2008), 

http://googleblog.blogspOl.com/)008!OWtirst-android-powercd-phone,hlm]. 

24 Council of Economic Advisers, Executive Office of the President, The Economic Benefits oj New 

SpectrumJor Wireless Broadband I (Feb. 2012) ("President's Council oj Economic Advisers Reporf'), 

available at lJttp:ilwww.whitehouse.govlsitcsidetllUltifilcs!cea spectrum report 2-21-70 12.pd( In fact, the 

"number of mobile wireless connections in tbe U.S. (with speeds over 200 kilobits per second) grew by 

over 160% from the end of2008 through June 2010, while the average data used per line increased almost 

fivefold from the first quarter of2009 through the second quarter of201O." ld. at 3. 

25 See Natiorwl Broadband Plan at 85 ("As smartphones, laptops, and other devices become 

increasingly integral to consumers' mobile experiences, mobile data demand is expected to grow between 

25 and 50 times current levels within 5 years."). "Cisco projects that mobile data traffic in the U.S. will 

increase by a factor of20 between 20] 0 and 2015." President's Council of Economic Advisers Report a15. 

26 President's Council oj Economic Advisers Report Executive Summary, 

27 High-speed network access is critical for applications that require high responsiveness, like twoway video communications. 

Poomima Gupta & Sinead Carew, Apple's Next iPad May be a 4G Game Changer, Reuters, 

Mar. 6, 2012, available at http://www.rcutcrs.com!artide!2012!03!07!us-appk-ipadidlJSTRER250W 120120307 (quoting UBS analyst John Hodulik), 

See Borth Dec!. ~~ 37-47, 

30 Historically, it has taken the FCC 6-13 years to make new spectrum available. Omnibus 

Broadband Initiative, FCC, Mobile Broadband: The Benefits oj Additional Spectrum, FCC Staff Technical 

Paper No.6, at 26 (Oct. 2010), available at http://transition.fcc,govlDaily Releases/Dailv Business! 

20 10/\lhJJlll !DOC-3!)2324,~ l.pdf; see also National Broadband Plan at 79 & Exhibit 5-C. 

8 
71 

In the end, SpectrumCo found that thc substantial costs associated with construction of a 

wireless network, the lack of a rcasonable guarantee of a return on the investment, and 

the risks associated with becoming an additional facilities-based competitor in the highly 

competitivc wircless marketplace did not makc busincss sense and could not bc 

justified.3l Accordingly, SpectrumCo explored other options with almost every 

participant in the wireless industry, including the sale of the spectrum to other companies 

and acquisitions, joint ventures, and network sharing arrangements with other wircless 

companies. Ultimatcly, SpectrumCo was not able to reach agreements or find solutionssometimes because SpectrumCo decided not to pursue the transaction, and other times 

because the other party decided not to pursuc it _. that made as much sense as selling the 

spectrum to Verizon Wireless.32 

B. SpectrumCo's Decision to Sell the A WS Spectrum to Verizon 

Wireless. 

After many months of negotiations, on December 16, 2011, V crizon Wireless and the 

Cable Companies filed with the FCC applications to assign the SpectrumCo A WS 

licenses to Verizon Wireless. 33 The applications included a detailed Public Interest 

Statement and declarations explaining the specifics of the transaction and why approval 

would benefit consumers, enhance competition, and promote the public interest. The 

FCC put the applications on public notice on January 19,2012, and set a pleading cycle 

for petitions to deny, oppositions, and replies that (as recently extended) will be 

completed on March 26, 2012. Although there were a number of comments and petitions 

to deny filed in response, none of the parties opposing the assignment of the licenses 

offered a convincing or rational reason, let alone any evidence, why the applications 

should be denied. In addition to filing the applications at the FCC, Verizon Wireless and 

the Cable Companies submitted the License Assignment and the Commercial 

Agreements to the DoJ for it to review?4 The companies subsequently submitted the 

Commercial Agreements to the FCC for review in the license assignment proceeding as 

well, subject to protective orders to protect confidential commercial information. The 

License Assignment and Commercial Agreements, therefore, are being thoroughly 

reviewed by the responsible agencies. 

Selling the A WS licenses to Verizon Wircless is the most emcient and expeditious way 

to put the spectrum to use for the benefit of consumers. Verizon Wireless is rapidly 

deploying the first national 4G L TE wireless network. Yet, despite the spectral 

31 See Pick Dec!. 'If'lf 11-15. Cox actually constructed a facilities-based network in two markets, but 

decommissioned it, network after it became clear that it would be unable to deploy its services "without 

sustaining unacceptably large losses." Verizon Wireless, et a!. Joint Opposition to Petitions to Deny and 

Comments, WT Docket No. 12-4, Ex. 6, at 13 (Mar. 2,2012) ("Commercial Agreements Addendum"). 

32 See Pick Dec!. 'If 16. 

33 Verizon Wireless and Cox Communications filed the application to assign Cox's licenses on 

December 21,20 II. 

The parties have filed and produced hundreds of thousands of documents with the DoJ and have 

had cooperative discussions with the DoJ economists and staff to explain the pro-competitive and proconsumer effects of the Commercial Agreements. 

9 
72 

efficiencies and enhanced throughput provided by 4G LTE technology, accelerating 

demand for wireless broadband services will outpace the company's available spectrum 

capacity. The AWS spectrum will allow Verizon Wireless to supplement the spectrum it 

currently uses to providc 4G LTE service, and by doing so will alleviate spectrum 

constraints that otherwise could affect service; Verizon Wireless predicts that service 

could be affected in some areas as early as 2013 and in many others by 2015.35 

The License Assignment will promote the government's objective of putting more 

spectrum to use delivering wireless broadband. As the President and other policymakers 

havc explained, "[ e ]xpanded wireless broadband access will trigger the creation of 

innovative new businesses, provide cost-effective connections in rural areas, increase 

productivity, improvc public safety, and allow for the development of mobile 

telemedicine, telework, distance learning, and other new applications that will transform 

American lives.,,36 "[I]fwireless data traffic is constrained by shortages of available 

spectrum, the potential for wireless broadband to generate substantial economic benefits 

by serving as a platform for innovation will be severely limited.,,37 

The FCC has recognized that the most efficient way to put more spectrum to use 

delivering wireless broadband is to "permit spectrum to flow more freely among users 

and uses in response to economic demand.,,3 Verizon Wireless is in a position where it 

can make efficient and effective use of the A WS spectrum in the very near future, 

whereas the Cable Companies are not in the same position and cannot make a business 

case for using the spectrum to build a new wireless network. The assignment of the 

licenses will ensure that Verizon Wireless will continue to offer innovative, fast, and 

high-capacity data and voice services - services that are very highly valued and 

increasingly demanded by consumers. And, as explained in detail below, sclling the 

A WS licenses to Verizon Wireless to efficiently deploy services to consumers does not 

raise any competitive concerns.39 

35 Verizon Wireless, et a1. Joint Opposition to Petitions to Deny and Comments, WT Docket No. 12-

4, Ex. 2 '113 (Mar. 2,2012). 

36 President Barack Obama, Unleashing the Wireless Broadband Revolution (June 28, 2010), 

available at htlp://w\>v\v.\vhitehousc.gov!the-prcss-ofllcelprcsidcntial-Incmorandum-unleashing-wircless~ 

broadband-revolution; see President's Council of Economic Advisors Report at 7 ("With access to 

sufficient spectrum, wireless broadband has the potential to transform many different areas of the American 

economy, as new wireless technologies give new capabilities to consumers, businesses, and the public 

sector."); id at Executive Summary ("Like other infommtion and communication technologies thaI have 

transformed the economy in the past, the spread of wireless broadband is likely to increase the rate of 

growth in per capita income; spur economic activity through new business investment; and support many 

new high-quality jobs."). 

37 President's Council o/Economic Advisers Report at7. 

38 Fostering Innovation and Investment in the Wireless Communications Market; A National 

Broadband Planfor Our Future, Notice oflnquiry, 24 FCC Red. 11322 '1133 n.27 (2009); see also 

Promoting Efjicient Use of Spectrum Through Elimination of Barriers to the Development 0/ Secondary 

Markets, Second Report & Order, Order On Reconsideration, & Second FNPRM, 19 FCC Red. 17503, 

1750S 'III (Sept. 2, 2004); Public Interest Statement at 16-19. 

See infra Section IlI.B.; see also Public Interest Statement at 19-33. 

10 
73 

At the samc timc, the Cable Companics' nccd for a wireless solution remained a priority 

so that we could competc and deliver the services our customers wanted. As described in 

the next section, wc have found that solution in thc form of a series of Commercial 

Agreements with Verizon Wireless that will produce significant benefits for consumcrs 

without diminishing competition. 

II. THE COMMERCIAL AGREEMENTS WILL BENEFIT CONSUMERS, 

PROMOTE COMPETITION, AND ACCELERATE INNOVATION IN 

THE BROADBAND MARKETPLACE. 

The Rcseller Agreements provided thc Cable Companies with a long-term wireless 

strategy for devcloping and marketing their own branded wireless serviccs, one that may 

provide more flexibility and potential upside for the Cable Companies, consumers, and 

competition. The Innovation Tcchnology Joint Venture Agrcement offered the 

opportunity to combine the wired cxpertisc of the Cable Companies with thc wireless 

expertise ofVerizon Wireless to research and develop technology and intellectual 

property that would integrate wired video, voice, and high-specd data services with 

wireless technologies and would compete with integrated marketplace solutions being 

offered by others. Finally, the Ageney Agreements gave the Cable Companies a shorttcrm solution that provides them a path to quickly and efficiently offer wireless serviccs 

and to compete with other marketplace providers' multiproduct bundles. These 

Commercial Agreements will benefit consumers and competition and lead to expanded 

choice; improved quality; technological innovation and integration; and increased 

efficiency for consumers.40 

A. The Commercial Agreements Offer Significant Consumer Benefits. 

1. The ReseUer Agreements 

The ReseUer Agreements allow the Cable Companies to elect, beginning in 2016, to sell 

individually-branded wireless serviees using the Verizon Wireless network, marketed at 

prices and in packages determined by each Cable Company. Customers who purchase 

these services would be the customers of the Cable Company that sold them the serviees 

and not Verizon Wireless. These types of agreements, called Mobile Virtual Network 

Operator ("MYNO") agreements, enable companies that do not have their own wireless 

networks to develop and market their own branded wireless service offerings to attract 

customers and are common in the industry (at last count, there were over 50 according to 

the FCC).41 

For example, in exehange for a per unit fee (e.g., per minute of use or gigabyte of use), 

the Resellcr Agreements would allow Comcast to combine its existing infrastructure, 

40 See Commercial Agreements Addendum at 1-4, 16-19. 

41 Implementation o/Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual 

Report and Analysis a/Competitive Market Conditions with Respect to Mobile Wireless, Including 

Commercial Mobile Services, Fifteenth Report, 26 FCC Red, 9664, app. C, Table C-6 (2011) ("Fifteenth 

Wireless Report"). 

II 
74 

cutting-edge intellectual property and technology, branding and marketing expertise, and 

back-office support with Verizon Wireless's sophisticated, high-speed wireless network 

to create a highly desirable, differentiated Comcast wireless service offering. Under 

these mutually-beneficial, marketplace-negotiated agreements, consumers would be the 

clear winners from this additional competition in the wireless marketplace. 

The Reseller Agreements also would cquip each Cable Company with the ability to offer 

an even more attractive suite of four compelling products than we can offer under the 

Agency Agreements. Comcast, for example, would be able to sell its own Comcastbranded wireless service as part of a bundle of services with at least one of its video, 

voice, or high-speed Internet products.42 

The FCC has observed that "MVNOs often increase the range of services offered ... by 

targeting certain market segments, including segments previously not served by the 

hosting facilities-based provider," and that MVNOs often offer industry-leading pricing 

packages.43 Not only do they tend to serve underserved consumer segments, but they 

also expand consumer ehoice over wireless bundles, and more fully and efficiently 

employ spectrum and other network infrastructure. In addition, MVNOs increasingly 

have the ability to provide their subscribers aecess to feature-laden and heavilydemanded devices.44 

A growing number of consumers perceive real value in MVNO offerings and view 

MVNOs as substitutes for facilities-based carriers. For example: 

• 

42 

Although the third quarter of2011 was a difficult period for many wireless 

carriers, TracFone, a subsidiary of America M6vil that operates as an MVNO in 

the United States, added 515,000 subscribers, an increase of 15.7 percent over the 

previous year, bringing the eompany's total subscribers to 19.3 million.45 

See Commercial Agreements Addendum at 4. 

43 Fifteenth Wireless Report'ft 33; see id. 'ft 96 (noting that TracFone is "generally regarded as the 

leader in the low-end prepaid niche"). "In particular, independent resellers and MYNOs may be able to 

undercut the market leaders and thereby provide an additional constraint on coordinated interaction in 

markets which have the potential to be dominated by the two or three largest carriers." Applications of 

Cellco P'ship d/b/a Vel'izon Wireless and AT&T, Inc., Memorandum Op. & Order and Declaratory Ruling, 

25 FCC Red. 10985 'ft 36 (2010); Applications of AT&T Inc. and Centennial Communications Corp., 

Memorandum Opinion & Order, 24 FCC Rcd. 13915 'ft 45 (2009); Applications of Nextel Communications, 

Inc. and Sprint Corp., Memorandum Op. & Order, 20 FCC Red. 13967 'ft 88 (2005). 

44 For example, TracFone recently released its first Android-based smartphone through its Straight 

Talk brand. See Chris Burns, Samsung Galaxy Precedent Makes Off-Contract Android Ultra Cheap, 

SlashGear, Aug. 20, 20 II, available at http://www.slashgcar.comJsamsung-ga!axv-prccec!ent-makcs-oft: 

contract-android-ultra-cheap-20 173260/. News reports also have indicated that Sprint's "flagship 

smartphones" may SOon become available through its prepaid and wholesale partners. See Roger Cheng, 

Could Sprint's Galaxy S II become a prepaid phone?, CNET News, Nov. 2, 20t I, availahle at 

hUp:!incws.cncLcom!830 1·1 035 3-20 129115-94!collM..::illlriJ)ls-gala\Y.:§-ii-1>£com~:JI'ill';P!!jg!.nh.Q.!l\i. 

45 America M6vil, SAB. De C.V., SEC Form 6-K, at 15 (Nov. 7, 2(11). 

12 
75 

• Another MYNO, Virgin Mobile USA ("Virgin Mobile"), became so popular 

reselling Sprint Nextel's service that Sprint Nextel acquired the MVNO in 2009. 46 

Virgin Mobile continues to be a successful player in the pre-paid mobile wireless 

marketplace and has had particular success attracting younger subscribers.47 

The government consistently has acknowledged the beneiits that resellers can provide to 

consumers and has never insisted on pre-approving such agreements. In fact, it has 

encouraged and even compelled - them. And the FCC has reported the existence of 

more than 50 reseller agreements in the wireless space.48 . 

The Reseller Agreements offer the possibility for even greater benefits for consumers. 

Unlike prior MYNO providers (which offered solely wireless products), the Cable 

Companies have the ability to combine wireless services with wired services to create 

attractive bundles on a large scale for consumers. 

In short, the Reseller Agreements will enable the Cable Companies to create and offer 

their own branded wireless services to their customers in direct competition with all other 

existing wireless providers. The result will be that over 30 million current cable 

customers and tens of millions of other consumers will have another option for how they 

get their wireless services. More significantly, Comcast and the other Cable Companies 

will be able to develop their own sophisticated suite of wireless products and services 

that, like their other products and services, will be at the vanguard of technology, 

convenience, and functionality and of a quality and reliability that the Cable Companies' 

customers have come to expect. And the Reseller Agreements will enable Comcast to 

provide its own, unique competitive wireless and multiproduct alternatives. 

2. The Innovation Technology Joint Venture Agreement 

The Innovation Technology Joint Venture Agreement formed a new limited liability 

company (the "Innovation Technology Joint Venture" or "Joint Venture") for the purpose 

of developing technology and intellectual property to create innovative and compelling 

new products that compete with the integrated wired and wireless solutions developed by 

AT&T, Dish Network, Google, Microsoft, Apple, and others.49 The Joint Venture will 

increase competition and benefit consumers by allowing Verizon Wireless and the Cable 

Companies to develop next-generation technologies that will enhance consumers' 

communications and media serviees.5o 

See Sprint Acquires Virgin Mobile USA, Seeking Alpha, Nov. 25, 2009, available at 

http: iseekingalpha.comiarticle! I 75378-sprint-acquires-virgin-rnobile-usa. Virgin Mobile had 5.2 million 

subscribers at the time of its acquisition by Sprint Nexte!' 

47 See Peter Svensson, Sprint Overhauls Virgin Mobile. Includes Data, Associated Press, May 6, 

2010. available at http://www.msnbc.msn.cotniidl]6t)l)BS75!nsitcchnologv and scicnce-wircicssltlsprintQYcrhauls-vinzin-mobilc-includcs-datiL . 

• < 

49 

50 

See Fifteenth Wireless Report app. C, Table C-6. 

See Commercial Agreements Addendum at 4. 

Seeid. 

13 
76 

The loint Venture will allow Verizon Wireless to use its wireless expertise and the Cable 

Companies to use their wired network expertisc to collaborate in developing nextgeneration technolo¥ies that will significantly enhance consumers' communications and 

media experiences.5 For example, the Joint Venture will explore technology 

developments that allow consumers' devices to seamlessly transition between WiFi and 

mobile wireless networks. This would allow consumers to experience optimal data 

transfer speeds and enhanced mobility, while also reducing demands on heavily stressed 

mobile wireless networks. The Joint Venture also will explore ways to provide featurerich video content on consumers' mobile devices. And the companies will work to 

integrate services like voice mail, caller ID, and contact lists across home and wireless 

phones, while also enabling seamless access to content like photos, videos, and music, on 

both home televisions and mobile devices. 

By enabling this cross fertilization, the loint Venture will spur innovation and new 

technology, increase consumer choice and competition, and reduce transaction costs. 

Congress and the federal antitrust agencies have long recognized that research and 

development collaborations like the loint Venture are procompetitive.52 As the Dol and 

FTC have explained: "an R&D collaboration may enable participants more quickly or 

more efficiently to research and develop new or improved goods, services, or product 

processes.,,53 In fact, the DOl has repeatedly endorsed the procompetitive benefits of 

R&D joint ventures in mUltiple industries, including the communications and media 

industries. 54 And we are not aware of any government challenge to an R&D joint venture 

in the wireline or wireless space. Thousands of R&D joint ventures have filed 

notifications with the lustice Department and FTC under the National Cooperative 

51 See Tech. Policy lnst. Comments, WT Docket No. 12-4, at 18 (Feb. 21,2012) ("[WJireless and 

wireline operators working together may be more likely to make breakthroughs in creating technological 

complementarities across the two technologies .... It is plausible that working together the companies 

will make advances they would not have made otherwise."). 

52 For example, to ensure that the antitrust laws do not inappropriately deter procompetitive R&D 

joint ventures, Congress adopted the National Cooperative Research Act of 1984, which provides that such 

ventures are not illegal per se and are subject to only single damages (rather than the usual treble damages) 

in antitrust lawsuits. See Pub. L. No. 98-462, 98 Stat. 1815 (1984). The goals of the Act are even more 

pertinent today, where "[t]he single most vibrant part of [the] economy is the communications sector" 

which has "generate[d] almost a half million jobs, while the rest of the economy has stagnated." 

Progressive Policy lnst. Comments, WT Docket No. 12-4, at \ (Feb. 21,2012) (citing Michael Mandel, 

Where the Jobs Are: The App Economy, TechNet, Feb. 7, 2012, available at http://www.tcchnet.org!wpcontcn t/ up loads!2 () I 2!02!Tech N ct-A pp. Economy -Jobs-Study .pdt). 

53 Dep't of Justice & FTC, Antitrust GUidelines/or Collaboration Among Competitors 14, § 3.3 lea) 

(2000). Although the Guidelines also note that such collaborations can increase market power or facilitate 

its exercise by limiting independent decisionmaking or combining control over competitively significant 

assets or a participant's individual competitive R&D efforts, the Innovation Technology Joint Venture docs 

not limit decisionmaking or combine control over assets or R&D efforts. 

54 See Commercial Agreements Addendum at 19. 

14 
77 

Research and Production Act of 1993 ("NCRPA"),'iS including a number researching and 

developing wireless technologies. 

Those procompetitive benefits will be present here as well. By enhancing the Cable 

Companies' and Verizon Wireless's own products and services, the Joint Venture will 

likely spur other companies - satellite providers, teleos, cable operators, wireless 

providers, and technology companies - to develop their own competing technologies. In 

the end, consumers will benefit from this sort of investment and innovation, as they will 

be able to enjoy more and better products that work across wired and wireless platforms. 

3. The Agency Agreements 

The Agency Agreements authorize Verizon Wireless and each of the Cable Companies to 

act as sales agents for the other company's services. The Cable Companies are 

authorized to sell Verizon Wireless services to consumers within their cable network 

footprints through various salcs channels (e.g., websites and telesales) but under service 

and rate plans established by Verizon Wireless. Each Cable Company receives a onetime commission for each Verizon Wireless sale it makes, but all customers that 

subscribe to Verizon Wirelcss service through one of the Cable Companies will become 

wireless customers of Verizon Wireless (not the Cable Company that signed up the 

eustomer). 

Similarly, Verizon Wireless is authorized to sell eaeh ofthe Cable Companies' video, 

digital voice, and high-speed Internet services to customers within the companies' 

respective footprints through Verizon Wireless's sales channels (e.g., retail stores, 

websites, and telesales), but under service and rate plans established by each Cable 

Company. Verizon Wireless receives a one-time commission for the sale, but all 

customers who sign up for a Cable Company's serviee through Verizon Wireless become 

customers of the Cable Company (not Verizon Wireless). 

The Agency Agreements provide the Cable Companies and Verizon Wireless with a 

quick and efficient path to offer wireless and wired services individually and in 

multiproduct bundles that compete against the offerings of companies such as AT&T, 

DIRECTV, Dish Network, CenturyLink, and others, which already offer bundles of 

wireless and wired services to consumers. 56 The FCC has acknowledged the consumer 

benefits of multiproduct bundles,57 and the Agency Agreements will enable the Cable 

55 Joint ventures that file notifications under the NCRPA, 15 U.S.c. §§ 4301-4306, are entitled to 

certain protections under the Act. Notifications are filed with the Justice Department and FTC and then 

published in the Federal Register. See Dep't of Justice, Filing a Notification Under the NCRPA, 

htt[l:ilwww.jus!icc.goviatripublic!guidclincslncrpa.htm!(last visited Mar. 16,2012). 

56 See Commercial Agreements Addendum at 3 ("Today, AT&T, DlRECTV, Dish Network, 

CenturyLink, and others offer multi-product bundles. The Commercial Agreements allow the MSOs and 

Verizon Wireless to respond to this competition with a top-notch suite of products of their own."). 

57 See, e.g., Annual Assessment of the Status of Competition in the Market for the DeliveJY of Video 

Programming, Thirteenth Annual Report, 24 FCC Red. 542170 (2009) ("Cable companies are combining 

video, high-speed Internet, and telephone services into bundles of two or three products and offering them 

15 
78 

Companies and Verizon Wireless each to offer the benefits of these bundles to tens of 

millions of consumers. 58 Consumers will continue to havc the same number of choices 

among video, broadband, wired voice, and wireless service providcrs as they do now, but 

they wiU havc additional options for how, wherc, and when they subscribe to 

multiproduct bundles. 

These Agency Agreements are market standard agreements, comparable to the literally 

thousands of agency agreements already in place in the wireless marketplace. 

Comcast and Verizon Wireless already have initiated the Agency Agreements in several 

markets and are providing these benefits to consumers in those markets today.59 In their 

initial implementation, Comcast and Verizon Wireless are offering qualifying customers 

who subscribe to both companies' services up to $300 on a prepaid debit card, which can 

be used for anything they want, including to cover the price of a new smart phone or 

tablet.60 We expect that the Agency Agreements will result in other financial benefits 

and product offers going forward. 

Importantly, as explained in more detail below, these benefits are being achieved without 

any loss of competition all the parties that previously provided voice, video, broadband, 

and wireless services continue to do so. In fact, consumers in the markets where the 

Agency Agreements have been initiated now have new options to order Verizon 

Wireless's services from Comcast and to order Comeast's services from Verizon 

Wireless. And, by enabling Verizon Wireless and each Cable Company to offer more 

attractive packages and pricing incentives to their subscribers, the Agency Agreements, 

in tum, will likely incent competitors to respond with their own pro-consumer offerings. 61 

B. The Commercial Agreements Will Not Reduce or Harm Competition. 

The Commercial Agreements do not involve the acquisition of any competitor or any 

merger with a rival. There is no acquisition of customers or of ongoing business 

operations. Rather, the Commercial Agreements are commonplace, industry-standard 

reseUer, technology development, and agency agreements that provide substantial 

consumer benefits and are prevalent throughout the communications marketplace. 

Claims to the contrary including by some competitors appear to be motivated in part 

by certain parties' desire to have the A WS licenses for themselves or their concern that 

the License Assignment and Commercial Agreements will increase competition in the 

at discounted introductory prices and/or savings on long-term prices, when compared with the price of 

buying each service separately."). 

58 See Commercial Agreements Addendum at 3. 

59 See, e.g., Press Release, Comeast Corp., Verizon Wireless and Comeasl Team Up in Seattle TO 

Deliver 10 Consumers the Best Video Entertainment, Communications and Internet Experiences al Home 

and Away (Jan. 17,2012), available at 

pltp:l! ,~ww ,sumcasLcQJ.!!i''ltlout! rrcsst:.,,-h~~Is;src Icascd£.ta i l.ashx?SCRcd ircct~truc&P RID"' 1144. 

60 See id. 

61 See Commercial Agreements Addendum at 3 ("This, in turn, will prompt competitive responses 

from other providers, all of which advances consumer welfare."). 

16 
79 

marketplace and require them to respond accordingly. The antitrust laws and competition 

policy, however, are designed to protect competition, not to insulate competitors from 

having to respond to competition. 62 

1. The Commercial Agreements Are Similar to Other 

Marketplace Arrangements. 

As noted above, Comcast and Verizon Wireless already have initiated certain of the 

Commercial Agreements in some markets. The launch ofthesc agreements already has 

demonstrated that the benefits to consumers are achieved with no detrimental change to 

the marketplace all the parties that previously provided voice, video, broadband, and 

wireless services continue to do so. No outlets for buying these services were eliminated. 

All that happened was that consumers now have new options - to order Verizon 

Wireless's services from Comcast, and to order Comcast's services through Verizon 

Wireless - for purchasing their services individually or as part of a new discounted 

bundle of services (with additional sign-up incentives) that gives consumers an 

alternative to existing multiproduct options already offered in those markets. 

There are no barriers to entry here. Other providers of communications services can 

enter into similar arrangements and have done so. For example, with respect to 

MYNOs, in its most recent Wireless Competition Report, the FCC identified more than 

50 MVNOs in the marketplace today.63 And just last week, Clearwire and Leap Wireless 

signed a new reseller agreement for Leap to offer its Cricket service over Clearwire's 

L TE network.64 

With respect to agency agreements, there are thousands of agency agreements in the 

wireless marketplace. In fact, just in the last year, several of our competitors have signed 

similar agreements: 

62 

• Frontier Communications and AT&T Mobility announced a three-year agency 

agreement on November 15,2011 that enables Frontier to offer customers access 

to AT&T smartphones and the AT&T mobile broadband network bundled with 

Frontier's broadband Internet, voice, and satellite TV services, all on a single bill 

from Frontier.65 

See, e.g., Bronswick Corp. v. Pueblo Bowl-a-Mot, Inc., 429 U.S. 477, 487 (1977); Cargi/f, Inc. v. 

Monfort of Colo., Inc., 479 U.S. 104, 117 (1986); Applications afOT! Corp., and Its Shareholders, 

Transferors, and MCI Communications Corp., and MCII077 Corp., Transferees, Order, 6 FCC Red. 1611 

~ 13 (Common Carrier Bureau 1991)(quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962». 

63 Fifteenth Wireless Report app. C, Table C-6. 

64 See Scott Moritz, Clearwire Wins "Milestone" Wireless Contract with Leap, Bloomberg 

Businessweek, Mar. 14,2012, available at http;!!www.busincsswcek.com!ncws!2012-03-14!.:lcarwir£: 

wi ns-contract -to·pro v idc-ne! work -for· leap-sAg ·'CrY icc. 

65 See Press Release, Frontier Communications Corp., Frontier Communications Teams with AT&T 

to Offer Wireless Voice and Data Products (Nov. 15,20 II), available at hnp:/!phx.corporatc· 

ir,nc!!phoe.D.L\./hlilllL'2,,665.9.~~&;r=imjcne,vsA.!1icle&Jll=lQ:ill1~!l&higl:ilighl=. 

17 
80 

• AT&T and DIRECTV signed a three-ycar commercial agreement on November 3, 

2011 through which both companies are able to offer customers a quadruple-play 

bundle of AT&T/DIRECTV video service and AT&T broadband, home phone, 

and wireless voice services, as well as bundled discounts.66 

• Century Link and Verizon Wireless announced an agreement on February 15, 

2011, undcr which CenturyLink became an authorized agent ofVerizon Wireless 

and can offer customers Verizon Wireless service with CenturyLink's HighSpeed Internet, unlimited local and long distance, and television services,67 

(Qwest, which Century Link acquired in 2011, entered into a similar agreement 

with Verizon Wireless in 2008.)68 

Reseller and agency agreements have been routine in the marketplace throughout the past 

decade. For example, the FCC has identified MVNOs as competitors in the wireless 

marketplace since 2002.69 And with respect to agency agreements, our competitors 

entered into their own agency agreements to offer multiproduct bundles of services nearly 

ten years ago: 

• In 2003, SSC (now AT&T) announced plans to offer a co-branded service with 

EchoStar Communications, called the "SHC Dish Network," to homes in its 

footprint as part of a package of local, long-distance, wireless, and DSL services. 

The agreement allowed SSC to manage customer relationships, and SSC invested 

66 See Press Release, DIRECTV, Inc., AT&T and DIRECTV Sign Three-Year Extension Agreement 

to Deliver AT&T I DlRECTVtoAT&T Customers (Nov. 3,2011), available at 

htlp:i!investor.directv.comircleasedetaiLcfin?RclcaselDc ·620738. Through a separate agreement, 

D1RECTV also sells AT&T broadband Internet services, including AT&T U-verse High Speed Internet, 

through its sales distribution channels and to existing DIRECTV customers. Id. 

67 See Press Release, Century Link, Inc., CenturyLink to Offer Verizon Wireless Equipment, Service 

Plans (Feb. 15,2011), available at http://ncws.centurylink.comlindcx.php"s=43&ilem-·101 . 

. , See Press Release, Verizon Wireless, Qwestto Deliver Verizon Wireless Products and Services to 

Its Customers (May 5, 2008). available at http://ncws.vcrizonwirc!css.eom/ncws/2008f05/pr2008-05-

05a.htmL Many retailers sell the wireless services of unaffiliated providers to consumers. For example, 

Best Buy is a sales agent for Verizon Wireless, AT&T Mobility, Sprint, and T-Mobile, and RadioShack is a 

sales agent for Verizon Wireless, AT&T Mobility, and Sprint. See Best Buy. Mobile Phones, 

htlp:llwww.bestbuy.comisite/ElcctronicsfMobile-Cell-PhonesiabcatOR()OOOO.c"id"abcatOROOOOO (last 

visited Mar. 19,2012); Radio Shack, Ceil Phones & Plans, 

http://radioshackwircless.e9m/mobi1e!''r·radioshack&rcfcode I -RSK (lOO() (JOO CELLTOP (last visited 

Mar. 19,2012). 

69 Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual 

Report and Analysis of Competitive Market Conditions with Respect to Mobile Wireless. Ineluding 

Commercial Mobile Services, Seventh Report, 17 FCC Red. 12985, 13025-26 (2002) ("Recently, a new 

version of res eller, referred to as a 'mobile virtual network operator,' or 'MVNO: has begun to appear in 

this country after experiencing some success in Europe and Asia."). 

18 
81 

$500 million in EchoStar as part of the deal.7o The agreement was extended in 

2005.7! 

• In 2003, Qwest and EchoStar entered into an agreement that allowed Qwest to sell 

Dish Network service to Qwest subscribers. 72 

• In 2002, SBC and Dish Network entered into an agreement that allowed both 

parties to offer video and DSL services to their customers.73 

The government has never publiely raised concerns about, questioned the benefits of, or 

challenged any of our competitors' agency agreements that enable them to do exactly 

what the Agency Agreements at issue here allow the Cable Companies and Verizon 

Wireless to do. Importantly, as the multiple examples of agency and reseller agreements 

set forth in this testimony demonstrate, the Agency and Reseller Agreements at issue in 

this transaction are industry standard and commonplace. 

So too is the Innovation Technology Joint Venture. As noted above, thousands of R&D 

joint ventures have filed notifications with the Justice Department and FTC under the 

NCRPA,74 ineluding a number researching and developing wireless technologies. For 

example, Bellcore and RIM created a joint venture "to engage in cooperative research 

related to wireless paging, data, protocols, and other services and networks to better 

understand the feasibility and application of such technologies for leading edge wireless 

and messaging services.,,75 More recently, Citrix created a joint venture with Intel and 

others to "promote the use, sale and adoption of mobile computing and communications 

technologies, architectures, methodologies, services and solutions.,,76 

Many companies, such as AT&T, Dish Network, Apple, Microsoft, Google, and others 

have been deVeloping wireless/wired integration technology for years. 77 The Joint 

70 See Press Release, EchoStar Communications Corp., SBC Communications, EchoStar Forge 

Strategic Partnership, Will Offer 'SBC Dish Network' Television Service (July 21, 2(03), available at 

htlp:/ltiish.ciicnt.sharcholdcr.comfrcicasctictail.dm?RclcascID~14362lJ. 

71 See Press Release, EchoStar Communications Corp., SBC Communications, EchoStar Reach New 

Strategic Pact (Sept. 20, 2005), available at h!!r.:f~s.dishnctwork.comjPrcss-Ccntcr!l'ic,ys!:frommSHiQi)gcJ~BC!:C()mmunications.-EchoSlar-Rcach-l'icw-Stralcgic-P. 

72 See Press Release, Qwest Communications InClIne., Qwest Forges Agreement with EchoStar to 

Offer Satellite Services as Part oj Communications Bundle (July 21, 2003), available at 

http:! jnews.ccnturvlink.c()miindcx.php?s~A3& item-I 003. 

73 See Ray Wilkins, Group President, SHe Marketing & Sales, SBC/Dish Network Changes 

Everything 3 (Spring 2004), available at www.att.comiCommoniilles/l.dti.sbc dish maikr.pdf. 

74 See supra note 55 and accompanying text. 

Notice Pursuant to the Nat '[ Coop. Research & Prod. Acl oj I 993; Bell Communications 

Research, Inc., 62 Fed. Reg. 26554,26555 (1997). 

'6 Notice Pursuant 10 the Nat·[ Coop. Research & Prod. Act of 1993; Mobile Enterprise Alliance, 

Inc., 69 Fed. Reg. 44062,44062 (2004). 

77 See Press Release, Google Inc., Industry Leaders Announce Open Platformfor Mobile Devices 

(Nov. 5,20(7), available at h!lp:fiwW.g0oglc.comiintlicn!prcssjpressreJ!200711 05 mobile open.hlml; 

19 
82 

Venture is not different in concept from joint R&D activities undertaken by other 

communications companies.78 For example, Sprint already offers "integrated wireless 

and wireline solutions," and it has been able to do so in part because of its collaboration 

with companies such as BroadSoft. 79 

The Innovative Technology Joint Vcnture simply will enable Verizon Wireless and the 

Cable Companies to compete more effectively against other companies' communications 

technology solutions in the rapidly changing technology marketglace. R&D joint 

ventures such as this one rarely raise anticompetitive concems.s Comcast is not aware 

of any R&D joint venture in the wireline or wireless space ever having been questioned 

or challenged by the government. 

In sum, the Commercial Agreements will not harm competition. Instead, just like other 

similar agreements that have been in existence for decades, the Commercial Agreements 

will enhance consumer welfare by offering more choices and attractive pricing 

incentives; they will enhance competition by allowing the companies to respond more 

effectively to competitors' offerings; and they will foster innovation and creativity. 

2. The License Assignment and Commercial Agreements Do Not 

Eliminate Any Actual or Potential Competitors. 

The License Assignment and Commercial Agreements do not result in the elimination of 

any present (or foreseeable) wireless competitor. Following the License Assignment, 

Verizon Wireless will continue to compete with every wireless provider with which it 

competes today. AT&T, Sprint, T -Mobile, Leap Wireless, MetroPCS, US Cellular, and 

dozens of regional wireless companies will continue fighting for customers with each 

Press Release, Google Inc., Sprint and Google Expand Relationship to Enable Richer Mobile Experience 

and More Choices for Sprint Customers (May 7, 2008), available al 

httr:!Jwww.googlc.com!intl!cnJ[?ressiprcssrcl/2()()~05()7 "print mobile.html; Press Release, Apple Inc., 

Apple Launches iPad (Jan. 27,2010), available al http://www.appIe.com/plflibrarv!20!O!0l127ApplcLaunchcs-iPad.html. Several of these firms recently agreed to acquire large portfolios of intellectual 

propcrty that pertain to wireless technology. Press Reiease, Google Inc., Google to Acquire Motorola 

Mobility (Aug. 5,2011), available al http://invCSI!lf.googlc.comirclcascs!20!110815.html; Press Release, 

Dep't of Justice, Statement of the Department of Justice's Antitrust Division on Its Decision to Close Its 

Investigations of Go ogle [nco 's Acquisilion of Motorola Mobility Holdings Inc. and the Acquisitions of 

Certain Patents by Apple [nc., Microsoft Corp. and Research in Motion Ltd. (Feb. 3, 2012), available at 

htlp:!/www.justicc.gov!oPlc.pri2012IFebruary!12-at-210.html. 

See Commercial Agreements Addendum at 19. 

79 Press Release, BroadSoft, Inc., Sprint [nlroduces Wholesale Mobile Integration (Sept. 13,20 I 0), 

available at http://www.broadsoll.comincwsf201 Oisprint-introdtlces-wholcsale-mobile-integrationf. 

so See Princo Corp. v. Int'l Trade Commission, 616 F.3d 1318, 1334-35 (Fed. Cir. 20 I 0) ("Although 

joint ventures can be used 10 facilitate collusion among competitors and are thcrefore subject to antitrust 

scrutiny, research joint venturcs ... can have significant pro-competitive features, and it is now wcll settled 

that an agreement among joint venturers to pool their research efforts is analyzed under the rule of 

reason."); Addamax Corp. V. Open Software Found.. Inc., 152 F.3d 48,52 (1" Cir. 1998) ("Where the 

venture is producing a new product ... there is patently a potential for a productive contribution to the 

economy, and conduct that is strictly ancillary to this productive effort ... is evaluated under thc rule of 

reason,"). 

20 
83 

other and with Verizon Wireless, offering a wide range of different services, including 

discounted bundles of services through their own agency agreements. 

As explained above, the Cable Companies do not currently operate any meaningful 

wireless network and have concluded that building such a network would not be 

economically viable. 81 In fact, Cox constructed a facilities-based network in two 

markets, but decommissioned its network after it became clear that it would be unable to 

deploy its services "without sustaining unacceptably large losses."s2 There is no basis in 

the antitrust laws to compel companies to make investments in businesses when they 

independently have concluded that such investments would not be profitable.83 

Similarly, the License Assignment and Commercial Agreements do not result in the 

elimination of any present ( or foreseeable) video, broadband Internet, or voice 

competitor. Comcast will continue to compete for video customers with satellite 

providers, telephone companies (including Verizon FiOS), smaller cable overbuilders, 

SMATV operators, and various emerging online competitors. It will continue to compete 

against telephone companies, smaller cable overbuilders, satellite broadband ISPs, and 

wireless broadband ISPs (both fixed and mobile) for broadband Internet customers. And, 

it will continue to compete for voice customers against telephone companies, wireless 

companies, and over-the-top voice providers such as Vonage, Google Voice, and Skype. 

3. The Commercial Agreements Will Not Blunt Competition 

Between Verizon FiOS and the Cable Companies. 

Contrary to the suggestions of some critics, the Commercial Agreements will not 

diminish Verizon Telecom's incentive to compete with the Cable Companies within the 

FiOS footprint. As a preliminary matter, this argument does not even make sense for 

most of the country; FiOS is not even available in more than 85 percent of the areas 

where the Cable Companies offer scrvices.84 But in all events, the notion that FiOS and 

the Cable Companies will no longer compete with one another is just not plausible in the 

face of the plain economic and business realities. 

81 See supra Section LA. 

82 Commercial Agreements Addendum Ex. 6, at 13. 

8J See 7-UP Bottling Co. v. Archer Daniels Midland Co. (In re Citric Acid Litig.), 191 F.3d 1090, 

1101 (9th Cir. 1999) ("Courts have recognized that firms must have broad discretion to make decisions 

based on their judgments of what is best for them and that business judgments should not be secondguessed even where the evidence concerning the rationality ofthe challenged activities might be subject to 

reasonable dispute."); Deborah Platt Majoras, Chairman, FTC, Remarks as Prepared for Opening 

Session Hearings on Section 2 of the Sherman Act Sponsored by the FTC and the Antitrust Division, U.S. 

Dep't of Justice (June 20, 2006), available a/ 

http://www.justice.gov/(ltripublicfhcaringsisingic tinn/docs!21910S.htm ("[ AJny legal framework needs to 

avoid second-guessing business judgments that were objectively reasonable at the time that they were 

made. An expostfacto examination of the hypothetical effects ofaltemative courses of conduct is likely to 

chill legitimate business bchavior."). 

84 See Commercial Agreements Addendum at 7-8. 

21 
84 

Verizon Communications has invested more than $23 billion in its FiOS network, and it 

is not simply going to walk away from that invcstment. Indeed, FiOS revenues now 

represent 61 percent of Verizon Telecom's (which operates Verizon FiOS and Verizon's 

wired broadband Internet scrvices) wire line customer revenues, and grcw 18.2 percent 

over the last year alone.85 And FiOS is taking market share from its competitors - FiOS 

increased its penetration in both the video and Internet marketplaces by roughly 4 percent 

over the last year. Verizon's publicly stated strategy is to continue increasing FiOS's 

penetration, since having more customers over the same shared plant increases FiOS'sand thus Verizon's - profitability. With the substantial initial investments in FiOS now 

largely complete, this product has become an ever-growing source of positive eash flow 

for the company. 

Verizon Telecom will continue to have every incentive it had before the Commercial 

Agreements to compete vigorously against the Cable Companies. The one-time 

commission Verizon Wireless would receive for signing up a customer with Comcast 

would not come close to the ongoing revenue Verizon Communications would receive if 

that customer signed up for Verizon FiOS. 

Basic economics confirms that Verizon would only injure itself if it "pulled its punches" 

in competition with the Cable Companies. Each FiOS subscriber provides Verizon an 

ongoing revenue stream that translates into a net present value of many thousands of 

dollars per customer. By contrast, Verizon stands to earn only a small fraction of that 

at most an amount equal to a few percentage points of the value of a FiOS customer - in 

a one-time commission if a subscriber signs up for service with an MVPD other than 

FiOS, and then only if(l) the subscriber signs up for service with the Cable Companies, 

rather than another MVPD, and (2) does so through Verizon Wircless, as opposed to 

signing up with the Cable Companies directly or through other sales agents. Moreover, 

Verizon Communications owns only 55 percent ofVerizon Wireless and would therefore 

receive only the benefit of that fraction of any commissions Verizon Wireless earns. 

In sum, Verizon Communications would never sacrifice 100 percent of the many 

thousands of dollars associated with a FiOS subscriber in order to earn a fraction of a 

fraction of a fraction of a one-time commission paid to Verizon Wireless. It would be 

economically irrational for Verizon to forego further increased FiOS market share gains, 

with resulting recurring revenue and margin hits to FiOS, in return for little more than 

half of some small, one-time commission payments to Verizon Wireless. The 

Commercial Agreements simply do not and will not create any incentives for Verizon 

Telecom to increase the prices or otherwise reduce competition in the sale and marketing 

of its wireline services. 

85 See Press Release, Verizon Communications, Verizon Generates Strong Cash Flow. IS.2 Percent 

Shareholder Returns in 2011 (Jan. 24, 2012), available at 

http://www22.vcrizon.comiinvestor!ncws vcrizon reports rGcurd revenue growth in 4CJ fueled bv stro 

ng demand t()r wireless fios and stratc~ie .hlm; Verizon Provides Generous Dividends and Stock 

Appreciation. Seeking Alpha, Mar. 9, 2012, available at hllp;!iscckingalpha.cUll1!articic!423581-vcrizon-

]2l:QY.idc,::gencrQ!!.\.:divigenQ~:_:m.\.bJock:ilP.m:eci,,[ion. 

22 
85 

4. The Commercial Agreements Will Not Affect Verizon 

Telecom's Plans to Build Out the FiOS Network. 

Nor will the Commercial Agreements have any impact on Verizon Telecom's plans to 

build out the FiOS network, either in local franchise areas ("LF As") where FiOS is 

already present or into LF As where FiOS has no presence or regulatory approval to 

operate. 

As an initial matter, Verizon Telecom has existing legal commitments to build out FiOS 

in the LF As where it is already present; the Commercial Agreements have no impact on 

these legal obligations ofVerizon Telecom. 

The Commercial Agreements will also have no impact on Verizon's plans regarding 

LFAs where FiOS has no presence, because Verizon decided to end substantial new 

capital investment in these LF As over two years ago - well before Verizon Wireless 

entered into the Commercial Agreements. In particular, beginning in mid-2009, Verizon 

announced that it had no plans to expand the FiOS footprint: 

• On a July 27, 2009 earnings call, for example, Verizon CFO John Killian stated 

that Verizon was "on track to be substantially finished with [FiOS] deployment by 

the end of201O, which has positive implications for both capital spending and 

free eash flow." 86 

• On September 10, 2009, Mr. Killian reiterated that Verizon would "be 

substantially done with [its FiOS build out] at the end of2010.,,87 

• On October 26, 2009, Mr. Killian again stated that Verizon would "substantially 

complete [its] FiOS build program by the end of2010, which alone should result 

in about $2 billion of capital savings each year.',88 

As Mr. Killian noted, Verizon chose to generate free cash flow by slowing capital 

spending and focusing instead on market share gains in areas where capital had been 

86 John Killian, Executive Vice President & Chief Financial Officer, Verizon, Q2 2009 Verizon 

Earnings Conference Call at 5 (July 27, 2009), available at 

hup:!iwww22.verizon.comiidcigroups!puhlic!documcntsiadacctieY"n! 895 trans.pdf. 

87 John Killian, Executive Vice President & Chief Financial Officer, Verizon, Vcrizon at Bank of 

America Securities Media, Communications & Entertainment Conference at 6 (Sept. 10,2009), available 

at hup:i!www22. verizon.comiidcigroups!publicidocuments!adacctievcnt 'lOS lrans.pdt: 

88 John Killian, Executive Vice President & Chief Financial Officer, Verizon, Q3 2009 Verizon 

Earnings Conference Call at 6 (Oct. 26, 2009), available at 

http://www22.vcrizo ... comiidcigrouDsipublic!documenlsJada,c[lcve"t 917 trans. pdf; Marguerite Reardon, 

CNET News, Verizon Nears FiOS Network Completion (Mar. 29, 2010), http://ncw,.cnct.com!~3() 1-

3061\6 3-20001377-266.htrnl ("Verizon Communications is nearly finished building its FiOS fiber-to-thehome network."); Peter Svensson, Verizon Winds Down ExpenSive nos Expansion, USA Today, Mar. 26, 

2010. http://wwW.lls3wdav.com!moncyJindustrics/lciccom/20 I 0-03-26-vcrizon-tios N .hun ("Verizon is 

nearing the end of its program to replace copper phone lines with optical fibers that provide much higher 

[ntcrnet speeds and TV service."). 

23 
86 

spent.89 Speculation that at some point Verizon, absent the Commercial Agreements, 

would reverse its current plan of record and spend billions more in scarce capital to 

further expand the FiOS footprint beyond the expansion it is already undertaking -- is 

completely speculative. Again, as explained above, the antitrust laws are not intended to 

compel companies to engage in hypothetical commercial ventures that they have already 

rejected based on marketplace realities. 

5. Other Competitors Can Continue to Offer Multi-Product 

Bundles Regardless of the Agency and ReseUer Agreements. 

Contrary to the suggestions of some critics, the Agency and Reseller Agreements will not 

harm competition by precluding other competitors from offering multi-product bundles. 

As noted above, the relevant marketplaces arc highly competitive, and consumers 

typically enjoy a choice among several wireless, broadband Internet, and voice providers, 

as well as MVPDs, including two direct broadcast satellite providers. Wireless service 

providers and other service providers therefore can create - and indeed have created -

their own exclusive multiproduct bundles by combining their offerings.90 

In addition, the exclusivity provisions contained in the Agency and RescUer Agreements 

are necessary to ensure the pro-competitive benefits of those agreements. The antitrust 

laws recognize that exclusivity commitments are common in agency agreements and 

frequently enhance the procompetitive benefits of such agreements.91 These agreements 

cannot be successful unless the parties remain committed to their success; the exclusivity 

provisions are needed to ensure this commitment.92 Indeed, other sales partnerships in 

the relevant markets - including partnerships that DIRECTV has entered into with AT&T 

and Verizon Telecom have incorporated exclusivity provisions, without any objection 

from the Dol, FTC, or FCC. 

Moreover, while some providers offer multiproduct bundles that include wireless and 

wireline services, such offerings are not a prerequisite for participation in the 

communications marketplace. For example, while Sprint and the Cable Companies have 

offered bundles that feature wireless and wire line services, those bundles have 

historically not accounted for a material percentage of Sprint's or the Cable Companies' 

89 See John Killian, Executive Vice President & Chief Financial Officer, Verizon, Q3 2009 Verizon 

Earnings Conference Call at 5-6 (Oct. 26, 2009), available at 

http://vi~_~y~rizolL!:'Q!lliidgiw.!!~.plicL@_<;'llmcnl~f'!\b'1£<JL£y£'lL2J-LJr.!!.n.§Jllif. 

E.g., Press Release, DlRECTV, AT&T and DIRECTV Sign Three-Year Extension Agreement to 

Deliver AT&T! DIRECTV Service to AT&T Customers (Nov. 3,2011), 

http)inews.directv.com!20 I I! 1 1 !OJ/at t -and-di reelv -sign-three-war-ex lens i 0 n-agreement-to-deli vcr -alt: 

dircctv-sen"icc-lo-Lltt-customc!2.L. 

91 See, e.g., Sheila F. Anthony, Commissioner, FTC, Vertical Issues in Federal Antitrost Law 

(Mar. 19, 1998) (explaining that an exclusivity commitment "may be procompetitive when it encourages 

retailers to invest in promoting the manufacturer's line, thereby enhancing interbrand competition at the 

retail level"), available at h!!n:i!www.ftc.gov!spc~chcs!anrhonyialiabaps.shlm. 

See Roland Machinery Co. v. Dresser Indus., Tnc .. 749 F.2d 380, 395 (7th CiT. 1(84) (Posner, J.) 

(explaining that exclusive arrangements often prevent free riding). 

24 
87 

subscribers.93 And other providers, such as Cricket Wireless, continue to focus on 

offering services that consumers can purchase on a stand-alone basis.94 Stand-aloneservice providers will remain vital competitors because consumers can and do create their 

own bundles of wireless and wireline services by selecting services from different 

providers.95 These consumer-created bundles compete against providers' own multiproduct bundles, and the Commercial Agreements in no way alter this dynamic. 

Finally, to the extent some critics have complained that the Agency and Reseller 

Agreements will adversely affect other competitors by forcing them to offer lower prices 

or improved services in order to compete with Verizon Wireless's and the Cable 

Companies' improved product offerings (such as by offering discounts or other benefits 

as Comcast and Verizon Wireless have already done in Seattle, Portland, and San 

Francisco), these effects promote competition, benefit consumers, and further the public 

interest. To proscribe the Commercial Agreements because they promote competition 

and generate tangible consumer benefits would tum the antitrust laws on their heads. 96 

6. The Commercial Agreements Will Not Facilitate IUegal 

Collusion. 

The Commercial Agreements do not and will not facilitate illegal collusion between the 

Cable Companies and Verizon Telecom. The Commercial Agreements are between the 

Cable Companies and Verizon Wireless, not Verizon Communications or Verizon 

Telecom. The Commercial Agreements require Verizon Wireless to establish 

comprehensive firewalls to prevent Verizon Telecom from getting access to any of the 

Cable Companies' competitively-sensitive information, or vice versa, which effectively 

will prevent any collusion. Nor will the Innovation Technology Joint Venture facilitate 

collusion; the Joint Venture's scope is limited to developing technologies and includes 

protections against the sharing of competitively-sensitive information. 

93 See, e.g., Erica Ogg, Comcast Walks Away.from Pivot, CNETNews, Apr. 23, 2008, 

http://ncws.cnct.com/8JOl·10784 3-9927478-7.html (explaining that "[b]y the end of [2007], demand was 

so low for Pivot [a partnership between Sprint and the MSOs] that they stopped marketing it"). 

94 Cricket Wireless, Company information, http://www.mycrickCl.colll/leam!crickcl-wirclcss; Alex 

Pham, Cricket Wireless Has the Music Industry Feeling Chirpy, Los Angeles Times, Feb. 7,2012, 

http://www.latillles.colllibusiness/b-fl-cl-crickel-20 I 20207.0,220048 l.storv (explaining how Cricket 

Wireless customers appeal to individuals whose cell phones, not computers, "are the center of their digital 

lives"). 

95 See Ogg, supra note 93 (explaining that "[p)art of [Pivot's] problem [was] that nearly 80 percent 

of U.S. residents already subscribe to a cell phone service"). 

See Bnmswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 487 (1977) (noting that every 

transadion "has the potential for producing economic readjustments that adversely affect some persons," 

but "Congress has not condemned mergers on that account; it has condemned them only when they may 

produce anticompetitive effects"); Cargill. Inc. v. Monforl of Co/a., [nc., 479 U.S. 104, 117 (1986) ('To 

hold that the antitrust laws protect competitors from the loss of profits due to such price competition would, 

in effect, render illegal any decision by a firm to cut prices in order to increase market share. The antitrust 

laws require no such perverse result, for [it] is in the interest of competition to permit dominant firms to 

engage in vigorous competition, including price competition." (internal quotation marks omitted)). 

25 
88 

To the extent any collusion occurs, the antitrust laws provide ample authority to 

investigate and challenge such collusion. The Commercial Agreements each require 

implementation of firewalls and othcr safcguards to prevent thc sharing of commerciallysensitive information. The DOl has recognizcd that these safeguards mitigate the 

likelihood of collusion and, to Comcast's knowledge, the Dol has never challenged 

collaborative venturcs incorporating such safeguards bascd on spcculation that they might 

nonetheless facilitate collusion. 

III. THE LICENSE ASSIGNMENT AND COMMERCIAL AGREEMENTS 

ARE CONSISTENT WITH THE COMMUNICATIONS ACT, FCC 

RULES, ANTITRUST LAW, AND THE OBJECTIVES OF CONGRESS, 

THE ADMINISTRATION, THE FCC. AND THE NATIONAL 

BROADBAND PLAN. 

The License Assignment and Commercial Agreements currently are being reviewed by 

both the FCC and the Dol to determine what, if any, policy and competition concerns 

these transactions raise and whether they are consistent with thc Communications Act, 

FCC rules, and antitrust law. As detailed above, the License Assignment will yield 

substantial and verifiable public interest benefits and align with the objectives of 

Congress, the Administration, the FCC, and the National Broadband Plan - by shifting 

spectrum not currently being used to provide service to consumers to a provider that will 

use that spectrum to deliver wireless broadband services to consumers. Although the 

Commercial Agreements are separate from, and not contingent on, the License 

Assignment, they too will yield substantial and verifiable public interest benefits and are 

consistent with long-standing industry practice that the FCC has openly embraced. 

Moreover, the 001 alrcady is reviewing the Commercial Agreements and, based on the 

documents and economic analysis we have submitted, should find that those agreements 

are consistent with competition law and policy and do not raise any concerns. 

The FCC has statcd that secondary market transactions are important to ensure that 

existing spectrum can get into the hands of providers that can use it efficiently to serve 

customers. 97 Just this past January, FCC Chairman Genachowski cited secondary 

markets as one ofthc key measures necessary "to meet th[e] demand" for more spectrum 

dedicated to mobile broadband use.98 And in its December 2011 ordcr (literally issued in 

the shadow ofthc withdrawal ofthc AT&TtT-Mobile applications) approving AT&T's 

acquisition of 6 MHz of nationwide spectrum and an additional 6 MHz of spectrum in 

five major metropolitan markets from Qualcomm, the Commission found that the transfer 

of "underutilized" 700 MHz spcctrum would "facilitate [that spcctrum's] transition ... 

See Principles for Promoting the Efficient Use of Spectrum by Encouraging the Development of 

Secondary Markets, Policy Statement, 15 FCC Red. 24178 ~~ 1, 18 (2000) (The FCC has sought to 

"promote the operation of competitive markets for the sale and lease of spectrum usage rights ... , and 

thereby facilitate both the transfer of the right to use spectrum for existing services to new, higher valued 

uses, and the availability of unused and underutilizcd spectrum to those who would use it for providing 

services."). 

98 Julius Genachowski, Chairman, FCC. Remarks at Consumer Electronics Show 5 (Jan. 11,2012), 

available at hllp:/!hrauni()ss.fcc.govf",lll(;s pub\ici<1ltach!11ill,(illOOGlLL974A I.pd.f. 

26 
89 

towards mobile broadband, thereby supporting [the FCC's] goal of expanding mobile 

broadband deployment throughout the country.,,99 The FCC stressed that "to compete 

effectively and innovate, a wireless provider must have access to adequate spectrum.,,100 

As explained in further detail in our filings at the FCC, this License Assignment will 

further that important goal. IOl No party opposing the applications has challenged that 

goal as illegitimate or explained why the License Assignment would be in conflict with 

it. To the contrary, Verizon Wireless and the Cable Companies have shown that the 

License Assignment would precisely track those goals by moving spectrum not being 

used to serve customers to productive usc. 

Similarly, the License Assignment furthers the goals of Congress, the Administration, 

and the National Broadband Plan. As the President explained, "America's future 

competitiveness and global technology leadership" is contingent on the availability of 

"adequate spectrum," "finding ways to use spectrum more efficiently," and "unlock[ing] 

the value of otherwise underutilized spectrum."I02 The National Broadband Plan also had 

as a core objective the transition of spectrum to more valuable and efficient uses in order 

to meet the "growing demand for wireless broadband services and ensure that America 

keeps pace with the global wireless revolution."I03 The National Broadband Plan 

recommended that the FCC "promote access to unuscd and underutilized spectrum," and 

"permit a variety of secondary market transactions," 1M transactions precisely like the 

ones Verizon Wireless and the Cable Companies have proposed. The National 

Broadband Plan ultimately coneluded that failing to address thc spectrum crunch "could 

mean higher prices, poor service quality, an inability for the U.S. to compete 

internationally, depressed demand, and ultimately a drag on innovation.,,105 Of course, 

Congress just recently passed legislation (on a bipartisan basis) to address this spectrum 

crunch by authorizing the FCC to make additional spectrum available for commercial use 

to serve the growing and evolving demand of consumers. 

In addition to furthering important government goals, the License Assignment is 

consistent with FCC rules. Parties routinely transfer spectrum to each other and these 

99 Application of AT&T Inc. and Qualcomm lnc./or Consent to Assign Licenses and Authorizations, 

Ordcr, 26 FCC Red. 17589 ~ 9S (2011) ("AT&T-Qualcomm Order"). 

1()() AT&T-Qua/comm Order~ 30. 

101 See Public Interest Statement at 16-19; Verizon Wireless, ct al. Joint Opposition to Petitions to 

Deny and Comments, WT Docket No. 12-4, at 8-\2 (Mar. 2, 2012)("Verizon Wireless, el al. Joinl 

Opposition"). 

102 President Baraek Obama, Unleashing the Wireless Broadband Revolution (June 28, 20 I 0), 

http://www.whitehousc.gov!thc-prcss-oftice/!2[g,L(kntial-mcmorandum-unleashing-wirclcss-broadbandrevolution. 

IOJ 

104 

105 

National Broadband Plan aI76-77, 84. 

ld at 83. 

ld at 77. 

27 
90 

transfers are reviewed and routinely approved by the FCC. 106 According to press reports, 

"The FCC has approved more than 150 commercial wireless transaction applications in 107 . the past year and more than 300 in the past two years." In fact, every two years, the 

FCC approves spectrum transfers between licensecs totaling as much as the 

17.4 billion MHz-POPs of spectrum sold by the FCC in its last major auction in 2008. 

And, between 1998 and 2009, the FCC approved 38 major spectrum transfers covering 

pes spectrum alone in which a total of approximately 30.4 billion MHz-POPs of PCS 

spectrum changed hands. lOS The FCC has routinely consented to the transfer where the 

transfers do not trigger the FCC's "spectrum screen" - a tool to assess wireless 

conccntration in a geographic market - and "there is clearly no competitive harm relative 

to today's generally competitive marketplace.,,109 That is the case here. 

The total amount of spectrum Verizon Wireless will hold after the assignments in more 

than 98 percent of the covered countics will be at a level that the FCC has determined 

does not raise competitive concerns, and thus, is not subject to further compctitive 

review.l10 Even in the remaining areas, mUltiple compctitors are operating, and many 

more hold unused spectrum. III At a national level, Verizon Wireless would hold barcly 

more than one-quarter of the spectrum currently counted as available - and even less if 

other spectrum that is in fact being used is counted. In similar circumstances where 

licensees tried to develop their spectrum but the business case ultimately did not 

materialize, the FCC found that assignment to a party able to put the spectrum to usc 

would serve the public interest and would not harm competition. I 12 And in none of those 

106 The FCC processes hundreds ofwircless assignments each year. In fact, Verizon Wireless itself 

has assigned spectrum to other licensees nearly 25 times over the past 4 years. See Verizon Wireless, et aI., 

Joint Opposition Ex. 1. 

107 AT&T CEO Slams FCC; Carrier Posts Loss in Q4 Due to Breakup Fee, Charges, 

Communications Daily, Jan. 27,2012 (citing an FCC spokesperson). 

108 See John W. Mayo & Scott Wallsten, Enabling Efficient Wireless Communications: The Role of 

Secondary Spectrum Markets 22 Info. Econ. & Policy 61, 70 Table 8 (2010). 

109 Sprint Nextel Corp. & Clearwire Corp., Applicationsfor Consent to Transfer Control of Licenses. 

Leases, and Authorizations. Memorandum Op. & Order, 23 FCC Red. 17570 ~ 76 (2008); Applications of 

AT&T Wireless Services, Inc. and Cingular Wireless Corporation for Consent to Transfer Control of 

Licenses and Authorizations, Memorandum Opinion and Order, 19 FCC Red. 21522 ~ 109 (2004) ("[TJhe 

function of [the screen] was simply to eliminate from further consideration any market in which there is no 

potential for competitive harm as a result ofth[e] transaction."). 

110 

111 

See Public Interest Statement at25; Verizon Wireless, et al. Joint Opposition at 44. 

See Public Interest Statement at 26; Verizon Wireless, et al. Joint Opposition at 45. 

tl2 See, e.g., AT&T-Qualcomm Order~~ 94, 96 (approving in December 2011 the transfer of 

spectrum previously used to provide a mobile video service that proved not to be viable from Qualcomm to 

AT&T and concluding it "would facilitate the transition of un de rut iIi zed unpaired 700 MHz spectrum 

towards mobile broadband use, thereby supporting [the Commission 's] goal of expanding mobile 

broadband deployment through the country"); Aloha Spectnlm Holdings Co. (ASSignor) and AT&T 

Mobility 11 LLC (Assignee) Seeking FCC Consentfi>r Assignment of Licenses and Authorizations. 

Memorandum Op. & Order, 23 FCC Red. 2234 m 13-14 (2008) (approving the transfer of spectrum from 

Aloha Partners to AT&T after Aloha conducted two trials and determined that it would need to partner with 

a "national wireless carrier or other companies ... to ensure the roll out of a 700 MHz network and 

associated services as an economically valuable enterprise" and could not find such a partner. see 

28 
91 

cases did the FCC give weight to claims that the FCC should deny its approval because 

the spectrum would be put to better use by a different purchaser, as some opponents 

(primarily other competitors) urge the FCC to do in this transaction. As the FCC has 

explained, its review is limited "to the buyer proposed in an assignment application, and 

[it] cannot consider whether some other proposal might comparatively better serve the 

public interest."l13 

Finally, with respect to the Commercial Agreements, those agrcements are fully 

consistent with FCC rules and antitrust law. These types of agreements have been 

commonplace in the communications industry for decades and have been found to be 

pro-competitive. Contrary to some parties' claims, the Commercial Agreements are not 

the "end of the world" or even a "market-division" conspiracy among leading market 

participants; they are just the same sort of ordinary agency, reseUer, and technology joint 

venture agreements that appropriately passed with little notice when entered into by 

numerous other entities. The Dol is assessing whether the Commercial Agreements raise 

potential competition concerns and are consistent with antitrust law; we are confident that 

they are. 

IV. CONCLUSION. 

Competition in the eommunications and media marketplaces is driving innovation in all 

areas of the industry. The constant pressure to respond to competition has compelled 

Comcast to upgrade its networks, enhance its existing services, research and develop new 

services, improve customer service, and even rebrand its products and marketing 

approach. Yet at least one missing piece has eluded us: a wireless strategy to offer 

wireless services as part of our multiproduct bundles. The Commercial Agreements 

supply that missing piece to the benefit of our current and future customers. 

The sale ofthe spectrum to Verizon Wireless cannot come at a better time for Americans; 

it will inject much-needed spectrum into the wireless broadband marketplace to meet 

consumer demand and drive innovation. At the same time, the Commercial Agreements 

will provide consumers one-stop shopping for their home and mobile needs; will offer the 

Cable Companies the ability to enhance competition in the wireless marketplace by 

becoming resellers; and will accelerate innovation in the broadband marketplace, 

Application to Assign Licenses Held by Aloha Spectrum Holdings Company LLC to AT&T Mobility II 

LLC, File No. 0003205282, Declaration of Charles C. Townsend, President and CEO, Townsend 

Enterprises 1118 (Oct. 23.2007)); NexlWave Personal Communications, Inc. and CingulaI' Wireless LLC, 

Memorandum Opinion & Order. 19 FCC Red. 2570131 (2004) (approving the transfer of additional 

spectrum to Cingular even in areas where it already operated because the spectrum acquisition would not 

"affect the number of currently active competitors in any ofthe markets involved given the fact that 

NextWave currently ha[d] limited operations and trial (non-paying) customers in [those] markets" (quoting 

the parties' application at 11-12)). 

113 Citadel Communications Co. & Act /lJ Broad. of Buffalo, Inc .• Memorandum Op. & Order. 5 FCC 

Red. 3842 1 16 (1990). The FCC has explained that this is necessary to "avoid 'an unwise invasion by a 

governmental agency into private business practice ... and undue delay in passing upon transfers of 

licenses.'" MMM Holdings, lnc. & UN Broad. Corp., Memorandum Op. & Order, 4 FCC Red. 683818 

(Mass Media Bureau 1989) (quoting S. Rep. No. 82-44. at 8 (1951)). aft'd. 4 FCC Red. 8243 ft 8-9 (1989). 

29 
92 

allowing consumers simple, seamless access to content and applications from any 

location on any device and leveraging thc best availablc network, whether it be wircd, 

licensed wireless, or WiFi. 

W c have begun what clearly will be a very thorough review process with the Dol and 

look forward to satisfying them that the License Assignment and Commercial 

Agreements are pro-competitive and pro-consumer. The FCC is currently conducting its 

own thorough review of the spectrum license assignments to determine whether the 

assignment of the AWS licenscs to Verizon Wireless is consistent with Commission rules 

and would be in the public interest, which is precisely what the FCC is supposed to (and 

has authority to) review. As explained above, the proposed License Assignment and 

Commercial Agreements will not reduce or harm competition in any product or: 

geographic markct but, rather, will provide consumers with more choice, increased 

competition, and new services and technologies. From Comcast's perspective, the 

License Assignmcnt and Commercial Agreements will provide new areas wherc we can 

continue to invest and innovate to bring new services to our customers. 

Thank you for the opportunity to testifY today. 

30 
93 

"The Verizon/Cable Deals: Harmless Collaboration or a Threat to Competition and 

Consumers?" 

Senate Judiciary Committee, Subcommittee 011 Antitrust, Competition Policy and 

Consumer Rights 

I. introduction 

March 21, 2012 

Testimony of Charles F. Rule 

Managing Partner, Washington, DC Office 

Cadwalader, Wickersham & Taft LLP 

A. Mr. Chairman, Senator Lee, and Members of the Subcommittee, I am pleased to 

be here today to discuss antitrust aspects ofthe VerizoniCable deals. 

B. I am appearing at the request of the Subcommittee. The views expressed arc mine 

and mine alone. I have no current client with an interest in or against the 

Verizon/Cable deals. While I have done work for wireless telcos and cable 

companies in the past, it has been several years since those engagements. 

C. In fact until I was asked to give my views to the Subcommittee. I was only 

casually following the progress of the deals. As a result of my past work in the 

wireless and cable industries as well as more recent work for clients in related 

industries, I do have a working familiarity with the structure of the industries and 

the technologies. With respect to the deals, however, the sum total of my 

knowledge is based on a review over the last several days of filings made in favor 

of and against the transaction at the Fedcral Communications Commission (FCC). 

D. As a consequence, my view of the relevant facts is unavoidably limited and 

ccrtainly far less complete than the views ofVerizon, Comcast, their lawyers and 

economists, and the opponents of the deals. For example, [haven't seen the 

agrecments thcmselves; rather, I have only read a description of those agreements 

in the publicly available FCC filings. Certainly, given its access to the documents 

and data of the parties and other participants in the industry, the Department of 

Justice (DOJ or the Department) will have the best view of the facts. (Of course, 

assembling the facts and properly analyzing the antitrust isslles arc two different 

things.) Of necessity my views are heavy on what! believe to be the proper 

analysis and light on the facts. 

E. My final disclaimer reflects wisdolll handed down from my dad. As he always 

used to say, "you get what you pay for," and the Subcommittcc should keep in 

mind that I am doing this pro bono. 
94 

II. The Transaction 

A. Given my "outsider" status, 1 defer to other members of the panel to describe the 

details of the transactions at issue here. In general, Verizon Wireless (actually 

Cellco, of which Verizon owns 55%) is going to acquire 122 Advanced Wireless 

Services (AWS) spectrum licenses from SpcctrumCo, ajoint venture (JV) among 

Comcast Corporation, Time Warner Cabk, and Bright House Networks. I In a 

separate transaction, Verizon WIreless will acquire 30 AWS spectrum licenses 

from Cox Wireless, a wholly owned subsidiary of Cox Cable. As the FCC 

indicated in its Public Noticc of the transactions, "the proposed assignment of 

licenses to Verizon Wireless would result in [the acquisition of] either 20 or 30 

megahertz of spectrum ... covering 259.7 million people (or approximately 84% 

of the U.S. population)." 

B. SpectrumCo and Cox were awarded licenses to the spectrum in an auction by the 

U.S. Government in 2006.2 Cox and the members of SpectrumCo bid on and 

acquired the licenses with plans to usc the spectrum to create a new wireless 

provider; however, sometime in the last year or so, they decided to drop their 

plans and late last year entered into an agreement with Verizon Wireless to sell 

the spectrum for a combined $3.915 billion.3 

C. At the same time, the members of SpectrumCo and Cox entered into several 

commercial agreements. The agreements will allow the cable companies, on one 

hand, and Verizon Wireless, on the other, to act as agents to sell each other's 

products and services. After four years, the cable companies will have the ability 

I Application ofCellco Partnership d/b/a Verizon Wireless and SpectmmCo LLC Por Consent To Assign Licenses, 

Response to Alien Ownership Questions. WT Docket No. 12-4, Exhibit 2 (December 16,2011). 

2 Actually, Cox as well as Sprint were members of Spectrum Co at the time of the auction. Sprint sold its interests in 

the venture to the other members in 2007. Subsequently, Cox withdrew from SpeclrumCo, taking at leasl30 

1icenses representing spectrum covering its cable franchise territories, apparently fi)rming Cox Wireless in 

anticipation of the usc of that spectrum to build out and launch a wireless service. While Cox and what remained of 

Spectrum Co each took various steps to develop their spectrum, both assert Ihat they ultimately abandoned those 

efforts in light of escalating costs and increasing technical demands. 

J Verizon, News Release: "'Comeast, Time Warner Cable. and Bright House Networks Sell Advanced Wireless 

Spectrum to Verizon Wireless for $3.6 Billion: The Companies Also Announce Commercial Agreements ThaI Will 

Deliver Mobile Products to Consumers" (December 2, 2(11), htlp://newscenler.verizon.comlpressreleaseslverizon/2011icomcast-time-\vamer-cable.html; Verizon, News Release: "Cox Communications Announces 

Agreement to Sell Advanced Wireless Spectrum to Verizon Wireless: Cox and Vcrizon Wireless will become agents 

to sell each other's residential and commercial products" (December 16,2(11), http://newsccnteLverizon.comlpressrelcases/verizon/2011/cox-communications-announces.htmI. 

2 
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to act as resellers of Vcrizon Wireless's service (in effect buying access to the 

service at wholesale and reselling the service al retail under the cable companies' 

brands). The cable companies and V crizon Wireless have also formed a research 

and development (R&D) JV intended to develop "technology to better integrate 

wircline and wireless products and services.'.4 

IlL An Dve/view o/the Analysis 

A. In analyzing the transaction, at least from the perspective of the antitrust laws, the 

Subcommittee should keep three principles in mind. 5 

B. First, as the Supreme Court has noted, the antitrust laws arc a "consumer welfare 

prescription.,,6 That is, the ubmatc mctric for detem1ining whether a transaction 

or agreement is "anti competitive" is the transaction/agreement's impact on total 

welfare. Or put in economic tem1s, a transaction or agreement should only be 

condemned ifit threatens to reduce a market's output or reduce quality; the 

corollary is that antitrust should not condemn conduct that, on balance, will 

increase market output and/or increase quality. Over the past thirty-tive years, the 

evolution of antitrust jurisprudence reflects the courts' efforts to ensure that 

antitrust rules and their enforcement do just that. The merger policies of the 

Federal Trade Commission (FTC) and the DOl have evolved over that same 

period in order to bring merger enforcement closer to that goaL 

C. Second, mergers and acquisitions are essential to a dynamic economy. They are 

the mechanism by which assets move to higher value uses and thereby increase 

social output and consumer welfare. Under certain circumstances, a merger or 

acquisition can so change thc structure of a market that on balance market output 

will be reduced without any countervailing increase in quality. Section 7 of the 

Clayton Act and DOl/FTC merger enforcement policy arc intended to detect and 

deter such mergers. However, as an empirical matter, mergers that lessen 

competition are a tiny fraction of all deals. It is important thcn that antitrust 

enforcement not unduly dampen the vibrancy and dynamism of the market for 

mergers and acquisitions. 

D. Third, beyond mergers and asset transfers, collaboration among firms, even those 

that compete, can increase consumer welfare. Particularly if the collaborating 

tirms facc competition from othcrs outside the collaboration and thus cannot 

threaten total welfare, then society is generally better off allowing the 

.j. See supra notc 3, 

5 The fCC presumably will apply a broader "'public interest"" analysis in order to detennine whether to grant 

pennission to the parties to transfer the spectrum licenses. For the most part. I have ignored thc arguments against 

the transaction that are based on broader FCC principles., It suffices to say that those arguments do not raise 

legitimate issues under the antitrust laws. 

6 Reiter v. Sonotonc Corp .. 442 U.S. 330, 343 (1979). 

3 
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collaboration. Often times such collaboration fails, but so long as competition on 

price and output among the collaborators or from thosc outside the collaboration 

remains vigorous then cost of failure falls on the collaborators not on consumers. 

On the other hand, when collaboration increases efficiency, generates new 

technology, improves 4uality, or lowers input costs, the collaborators and 

consumers arc rewarded. 

E. Of course, applying these principlcs to any pmtieular transaction is a very 

intensive cxercise. Based on published reports, V crizon Wireless and the cable 

companies arc in the early stages of responding to a Second Request, and no 

doubt the Department is out canvassing others within and surrounding the 

industry. Ultimately, how the Vcrizon Wireless/Cable deals stack: up against 

these three principles will depend on what the Department finds. That being said 

and because I have been invited here today, in the remainder of my testimony I 

will briefly consider the arguments for mId against, first, Verizon Wireless's 

acquisition of the cable companies' spcctrum licenses; second, thc commercial 

agrecments (or at least so much as is publicly known about those agreements) 

between Verizon Wireless and the cable companies; and third, the proposed R&D 

JV berween Verizon Wireless and the cable companies. 

IV. Verizon '.I' Acquisition of the Cable Companies' Spectrum 

A. Notwithstanding the Department's recent challcnge of AT&T's proposed 

acquisition ofT-Mobile, the arguments that Verizon Wireless's acquisition of the 

cable companies' spectrum licenses threatens consumer welfare or in the 

language of Section 7 of the Clayton Act, "may tend substantially to lessen 

competition" - seem weak. Opponents of the transaction have put forward one 

plausible economic argument that the acquisition could harm consumer welfare, 

namely that Verizon Wireless is "dominant" and has acquired the spectrum to 

prevent other smaller rivals !Tom developing the spectrum. There is, however, a 

real question whether that theory could be the basis of an antitrust challenge. 

Even if the Dcpartment dccides that the argument merits investigation, it should 

be a relatively straight-forward matter for thc Department to determine whether 

the facts here support that argument. Based on what is in the publicly available 

filings, it appears unlikely that the facts support the theory. 

B. First, the basic concern that led the Department, rightly or wrongly, to seek to 

block AT&T's acquisition ofT-Mobile simply is inapplicable here. The 

AT&TIT-Mobilc case was premised upon the combination ofrwo of four 

nationwide wireless providers who were head-to-head rivals. The Dcpartment 

concluded that the elimination of that actual competition would lead to restrictcd 

output, higher prices, and a net decrease in consumer welfare. Whatever one 

thinks of the Department's case challenging that transaction, such an argument is 

not viable here because the indisputable fact is that after more than five years 

neither SpectrumCo nor Cox has developed and launched a wireless service on 

the liccnsed spectrum. Whether the cable companies ever intended to start a 

4 
97 

service or were merely "speculating" when they submitted the highest bid for the 

spectrum years ago and. by the way, the argument that the high bidder at an 

open auction run by the United States Governmcnt is a pure speculator is dubious 

at best - is irrelevant to the antitrust laws. The fact is the cable companies arc not 

today and will not be for the foreseeable future facilities-based providers of 

wireless service. [have seen nothing that casts doubt on that conclusion. 

C. Moreover, there is no indication that either SpectrumCo or Cox arc one of only a 

few uniquely positioned entrants who are ready and willing to enter. In fact the 

parties make a pretty convincing case that, before seeking to sell their spectrum, 

SpectrumCo and Cox each determined that building out and launching a wireless 

service using the A we;; ,pcctrum at issue is no longer an economically viable 

option. In short, nothing in the filings suggests that the Department could bring a 

viable "potential competition" challenge to Verizon Wireless's acquisition. The 

easelaw in the area of potential competition challenges to mergers is notoriously 

unfavorable to the plaintiffs and the antitrust agencies, and merger challenges 

based purely on potential competition arguments arc of late as "rare as hens' 

teeth." Based on what I've seen, this acquisition does not appear to be a good 

candidate to try to revive that theory as a viable merger enforcement option. 

D. Rather. this acquisition seems to be an archctypal example of a welfare-enhancing 

transaction moving fallow assets that have long gone unproductive to an entity 

that intends to invest in the assets and usc them to generate, for the first time, 

market output. Or put differently, since the cable companies' spectrum licenses 

have never produced more than zero (or in the famous words of Dean Wormer in 

Animal HOllse, "zero-point-zero") wireless service, any output that Verizon 

Wireless produces from the spectrum will enhance consumer welfare. The fact 

that Verizon Wireless will not immediately deploy the spectrum docs not seem to 

me particularly damning. One does not just "tum on" spectrum: it requires much 

investment and development to transform fallow spectrum into a productive asset. 

E. From the perspective of antitrust, the fact that the acquisition of spectrum will 

give the market leader even more productive capacity is beside the point. The 

tact that it will make Verizon more attractive or make it more difficult for smaller 

providers to compete (because Verizon's prices decrease or its quality increases) 

is good for consumer welfare and procompetitive. All that matters is that output 

will increase, 

F. Second, and in response, the opponents of the transaction assert that this is not the 

whole stOly. Instead they argue that Verizon is acquiring the spectrum to keep it 

out of the hands of a smaller rival and that in the hands of another, less wellendowed wireless provider the A WS spectrum would gencrate even more output. 

Under certain circumstances such as high share of market output, significant 

disparities in relative marginal costs, and supracompetitivc margins being earned 

by the acquirer of assets some might argue that a "dominant" acquirer 

theoretically could have the incentive and ability to acquire fallow assets in order 

5 
98 

to ensure that they remain fallow or at least less productive than they would be in 

the hands of a smaller, mavcriek rival. This is the so-called "hoarding" 

hypothesis, probably best described in the declaration of Professor Judith 

Chevalier, which is attached to T-Mobile's Petition to Deny the Verizon 

Wireless/Cable deals. While there may be a few holes in thc thcory, it is at least 

conceivable that a monopolist might buy up assets that fringe players and/or new 

entrants could usc to cxpand market output and to put downward pressure on thc 

monopolist's prices and margins.7 

I. However, just because it is conceivable that an acquisition of assets might 

lead to less total output than other "more competitive' alternative 

transaction(s) that will bc preempted by the acquisition, it docs not follow 

that the acquisition violates the antitrust laws. The theory inevitably 

depends on speculation. So far as I can tell from the opponents' filings 

there is no concrete altcrnative transaction, much less one that would have 

generated more output.8 Section 7, however, "deals in probabilities, not 

ephemeral possibilities."" "[U]ncabined speculation eannot be the basis 

of a finding that Section 7 has been violated."lo At the end of the day, the 

question is whether the identitied transaction Verizon Wireless's 

acquisition of the cable companies' AWS spectrum licenses may tend to 

reduce compctition (or consumer welfare). The question is not whether 

one can imagine deals in which someone other than Verizon Wireless 

might usc the cable companies' spectrum more extensively or morc 

quickly than Verizon Wireless. In other words, Verizon's acquisition does 

not merit antitrust intervention just because one can imagine a more 

procompetitive deal. 

2. Even if one assumes for the sake of argument that the hoarding theory is a 

viable basis on which to mount a merger challenge, it is dubious that 

Verizon Wireless is spending billions just to hoard the to-be-acquired 

spectrum. First, the theory might be plausible ifVerizon had a monopoly 

share of the wireless market or if the cable companies' A WS spectrum 

represents the only, or at least the most efficient, spectrum available to 

7 Applications of Cellco Partnership d/b/a! Verioon Wireless. Spectl1lmCo. LLC. and Cox T.Mf Wireless, LLC for 

Consent to Assign Wireless Licenses: Joim Opposition to Petitions ta De'~r And Comments. Exhibit 4: Dec/aration 

afMichael L Katz. WT Docket No. 12-4. (Morch 2, 2012),. 

8 T-Mobilc suggests that the spectrum would generate greater output in il.;; hands; however, it admits that it never 

entered into negotiations with the cahlc companies because 1t was preoccupied with trying to obtain approval for its 

erstwhile deal with AT&T. It is difficult not to be somewhat sympathetic to T-Mobilc's plight; nevertheless, such 

sympathy docs not change the fact that no deal between T-Mobile and the cable companies has materialized. 

9 United States v. Marine Bancorporation, 418 U.s. 602, 622-23 (1974). 

10 BOC International Ltd. v. FTC, 557 F.2d 24,29 (2d CiL 1977). 

6 
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competitors. Based on my reading of the filings with the FCC, neither 

appears to be the case hcre. Second, as a factual matter, for the hoarding 

theory to present a true concern, it should first be established that Verizon 

in fact has no intention to deploy the spectrum as it claims. While this is a 

difficult question to answer based on the parties' self-serving public filings 

with the FCC, the Department has the ability to decipher Verizon 

Wireless's true intentions by reviewing its confidential planning 

documents, by deposing the relevant Verizon Wireless decision makers, 

and through the usc of other investigatory tools. If Verizon bought the 

spectrum just to "sit on it." the Subcommittee can rest assured that the 

Departmcnt will figure that out. 

G. The bottom line is that it appears unlikely that the facts would support antitrust 

condemnation ofVerizon Wireless's acquisition of the cable companies' AWS 

spectrum. Unlike AT &T/T-Mobile, these deals will not eliminate actual 

competition, and on the surface it appears that the cable companies made 

unilateral decisions before negotiating with Verizon Wireless that substantially 

lessen, if not eliminate entirely, any concern that the deals signiticantly reduce 

potential competition in the wireless space. As alluded to earlier, there is a 

theoretical possibility that Verizon Wireless is acquiring the licenses to keep the 

cable companics' spectrum out of the hands of competitors that purportedly 

would use the spectrum to expand the output ofwireJcss serviccs morc than 

Verizon Wireless is likely to do. As economists like to say, however, this theory 

docs not seem particularly robust; the likelihood that the circumstances exist to 

make this threat of hoarding a worthy economic concern, much less an antitrust 

concern, appears small. Based on the available information, Verizon Wireless's 

acquisition of the cable companies' spectrum appears to increase total output 

and/or quality - i.e., consumer welfare. 

V. Commercial Agreements between Verizon Wireless and the Cable Companies 

A. Just because Verizon Wireless's acquisition of AWS spectrum from the cable 

companies appears to increase output and consumer welfare, it does not follow 

that post-acquisition collaboration bctween V crizon Wireless and the cable 

companies automatically increases consumer welfare. As I mentioncd earlier 

collaboration, cven among rivals, can increase consumer welfare. Collaboration 

is prevalent throughout the economy and, without it, the economy would literally 

grind to a halt. Nevertheless, under certain circumstances, collaboration between 

or among otherwise independent companies can result in quality-adjusted net 

reductions of consumer welfare. The most obvious examples of harmful 

collaboration are "naked" price-fixing, market allocation, and bid-rigging among 

rivals; those agreements are per se illegal and business men and women routinely 

go to jail for those types of collaboration. The truly naked agreements hold no 

promise of efficiency or better quality, are designed to restrict output in order to 

raise prices and profits, and are almost. always covert (because in this country 

most business pcople understand that such conduct is felonious). 

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B. None of the opponents of the transaction has gone so far as to argue that thc 

commercial agrcements bctween Verizon Wireless and thc cable companies 

amount to naked restraints. Nevertheless, under some circumstances, even 

collaboration that is not naked that is, collaboration that plausibly holds the 

promise of increasing welfare - can havc a net negative impact on total output and 

welfare. 

I. This is particularly tme where the parties to the collaboration arc 

competitors. The potential threat to welfare of such a collaboration among 

rivals depends on thc stmeturc of the market in which the collaborators 

compete as well as the scope and stmcture of the collaboration (i.e., the 

extent to which the collaborators share competitively sensitive 

information, the extent to which they share profits on activity outside the 

collaboration, thc extent to which the agreement is cxclusive as to third 

parties, etc.). So, for cxample, there is little reason to be concerned about 

collaboration among competing fumiture manufacturers, representing 

twenty-five perccnt of the market's output, to buy a commodity like papcr 

goods: rcgardless of thc potential efficicncies from the collaboration, thc 

collaboration represents little if any threat to output, particularly if there 

arc appropriate safeguards against, e.g., the exchange of competitively 

sensitive information about furniture manufacturing and sales. 

2. In more Iimitcd circumstances, even if the collaborators are not 

competitors in any market, there could be cause for concern if, for 

example, one of the participants controls a large share of a critical input or 

channel of distribution and that participant grants the other participant(s) 

exclusive access to that input or channel. 

3. In either casc, where the collaboration does not constitute a naked 

agrecment to restrict output (or serve as a sham to disguise such a nakcd 

agreement), the simple threat of a competitive concern is only the 

begirming of the analysis and is not sufficient to warrant antitrust 

condemnation. Rather, two further factors must be considered. First, have 

the parties structured the collaboration in a way to eliminate or at least 

appropriately ameliorate the anticompetitive concern0 We antitrust 

lawyers spend a lot of time counseling elients on the safeguards and 

measures that are pmdent to ameliorate, if not eliminate, such issues. 

Sccond, what are the countervailing efficiencies that the collaboration 

generally and the aspects causing compctitive concern specifically are 

likely to crcate or enhance? This analysis can be difficult, but the good 

ncws is that the law has developed in a way that is defcrential to legitimatc 

collaboration. In most cases an initial analysis of the stlUcture of the 

market, the compctitive significancc of the venture, and the StlUCturc of 

the venture will indicate that the threat to competition and consumer 

welfare is ephemeral, if not completely absent. In those cases, there is no 

need for considering, much less balancing, efficiencies. 

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101 

4. Finally, it is important to remember that unlike mergers, collaboration 

through commercial agreements tends to be impermanent. As a 

consequence, there is not as strong an argument for stopping in advance a 

proposed commercial collaboration based on potential competitive threats, 

at least in the absencc of a "clear and prcsent" threat to consumer 

welfare. I I Ifany aspect of the collaboration proves anticompetitive in 

practice, the government can investigate and seck to enjoin the offensive 

aspect at that point. To the extent private parties suffer antitrust injury 

from the collaboration, they too can seck to enjoin the collaboration, as 

well as obtain treble damages. 

C. Turning to the commcreiaLagreemcnts bctwcen Verizon Wircless and thc cablc 

companies - or at least what I know about them from public sources the 

opponents have identified two areas where the collaboration arguably raises 

competitive concerns; the market for facilities-based wireless service and the 

market for wirc1ine broadband service. 12 Essentially, the opponents argue that the 

collaboration allocates the wireless market to Verizon Wireless in exchange for 

Verizon Wireless's (and through it, Verizon Wireless's majority owner, 

Verizon's) allocation of the broadband wireline market to the cable companies. 

In other words, according to the opponents, together with Verizon Wireless 

spectrum acquisition, the collaboration ensures that Verizon will focus on 

providing wireless service and the cable companies will focus on broadband 

wireline while Verizon will stop competing as vigorously to develop and market 

its FiOS service. 

I. First, to the extent that these transactions pose any risk to potential 

competition in the wireless market, it is due to Verizon Wireless's 

acquisition ofthe cable companies' A WS spectrum licenses. I} Let's 

assume that the Department of Justice detern1ines that, because, e.g., the 

cablc companies unilaterally decided not to enter the facilities-based 

wireless market, there is no basis to challenge the acquisition on a 

I J In contrast experience tells us that a '~wait and watch" approach towards mergers and acquisitions -- pennancnt 

changes to the structure of the parties and the market is imprudent. If a transaction such as Vcrizon \Vireless's 

acquisition of the cable companies' spectrum is consummated and later actuaHy hanns consumer welfare. it will be 

infinitely more dimeult to "unscramble" the assets and restore the competitive status guo. That is why the HartScott-Rodino Act requires that all substantial mergers amI acquisitions. including Verizon Wireless's acquisition of 

the cable companies' spectrum, be notified to the Department and the FTC before the patiics can close. 

" Applications ofeellco Partnership d/b/a! Verizon Wireless. Spectl1l"'Co. LLC, and Cox TMI Wireless. LLCjiJr 

Consent to Assign fVireless Licenses: Comments (~f Sprint Nextel C~orporatiol1 WT Docket No. l2-4, (February 2 t. 

2012) at 16. Applications of Cell co Partnership d!b/a/ Verioon Wireless, SpectmmCo. LLC, and Cox TMI Wireless. 

LLCfor Consent to Assign Wireless Licenses: Petition to Denyo/T-Mobile. USA.lllc. WT Dockcl No. 12-4. 

(February 21,2012) ("Petition to Deny ofT-1Vlobilc") at 15. 

Ll See. e.g, Petition to Deny ofT-Mobile at 36. 

9 
102 

14 !d.at ! 9. 

potential competition theory. Under that analysis, it seems highly unlikely 

that the cable companies in the foreseeable future will decide to reacquire 

wireless spectrum in order to start providing facilities-based wireless 

service, regardless of the collaboration contemplated in their commercial 

agreements with Vcrizon Wireless. Rather, assuming the facts show that 

the cable companies have dec1ded not to enter the market, they arc simply 

no longer competitors actual or potential- in facilities-based wireless 

service. The collaboration is designed to provide them with access to a 

telecommunications servicc that they think is an important component of 

the bundle of services that their customers demand. As a general matter 

(though sec the discussion below), obtaining access to a complementary 

product generally increases output and consumer welfare. It is unlikely 

that the commission that the cable companies will earn from selling 

Verizon Wireless's service will create any additional material disincentive 

to enter the wireless service market by buying and developing new 

spectrum. 

2. Second and potentially more problematic, some opponents have alleged 

that as a result of the acquisition and collaboration, Verizon 

Communications will compete less aggressively with its FiOS service 

following implementation of the commercial agreements. 14 As a loyal 

customer of FiOS, I must admit that I was particularly interested in this 

argument. Until Verizon deployed FiOS in my neighborhood, I was the 

"victim" of my local cable monopoly, which offered to bring broadband 

wireline service to my house for the princely sum of $30,000! Shortly 

thereafter, my cable company's scrappy competitor, Verizon laid FiOS 

cables voluntarily and with no surcharge throughout my neighborhood, 

endearing itself to myself and a number of my grateful neighbors along the 

way. So, I know first-hand that wireline broadband competition is highly 

preferred to a monopoly, and the last thing I personally want to sec is any 

attenuation ofVerizon's competition in this space. By all means, the 

Department of Justice should look at this issue! 

3. Having said this, based on what I have been able to glean from the public 

filings, the parties have presented some sound reasons why the 

collaboration should have little ifany impact on Verizon's competitive 

plans for FiOS. Those reasons inelude: 

a. First, Vcrizon Wireless will cam a fixed commission on the sale of 

the cable companies' wireline broadband service, and that 

commission is dwarfed by the revenue that Verizon eams from 

signing up a new FiOS customer. Moreover, Verizon owns less 

than 60% ofVerizon Wireless. As a consequence, Verizon only 

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103 

receives a fraction of the commission Ycrizon Wireless cams from 

selling the services of the cable companies, whereas Yerizon keeps 

100% of the much larger chunk of FiOS revenueI5 In short, the 

promisc of a fraction of a relatively small fixed commission scems 

unlikely to impact significantly Ycrizon's competitive strategy for 

FiOS. 

b. Second, there is limited overlap bctwecn FiOS and the cable 

companies' franchlsc territory. FiOS is present in just 15% of the 

collective franchisc territories of the collaborating cable 

companies. So in the vast majority of the country represented by 

the cable companies, FiOS docs not compete. In those areas where 

FiOS is not available, the cable companies' service is a pure 

complement to the service provided by Yerizon Wireless Of its 

parents. 

c. Third, in 2009 before the deal between Yerizon Wircless and the 

cable companies was negotiated, Yerizon had announced that it 

was ending its expansion of the FiOS footprint. As a result, FiOS 

is neither an actual nor a potential competitor in those franchise 

territories where FiOS is not currently present. 

d. Fourth, although the commercial agreements are confidential and 

the FCC filings defending the agreements are heavily redacted, the 

parties claim that the collaboration has been structured with 

safeguards to prevent the exchange of competitively sensitive 

information and the like between the cable companies and Yerizon 

(that is, the parent company ofYerizon Wireless). I have 

confidence that the Department of Justice will carefully examine 

those safeguards and will let the parties know if the safeguards arc 

inadequate. 

4. Finally, even assuming the eollahoration docs not adversely affect 

competition betwcen the cable companies and Yerizon Wireless (or its 

parent Yerizon), there still could be a concern if either the cable 

companies or Yerizon Wireless controls essential channels of distribution 

and has agreed to provide exclusive access to those channels to the other 

party to the agreements. Based on my own casual empiricism coneeming 

the numerous ways that consumers access and procure both wireless and 

wircline service, I am somewhat skeptical that the commercial agreements 

" Applications of Cellco Partnership dlhla! Verizon Wireless. SpeclrumCo. LLC, and Cox TMI Wireless. LLe/ilr 

Consent to As.~ign Wireless Licenses: Joint Opposition to Petitions' to Deny And Comments, Exhibit 6 \VT Docket 

No. 12-4. (March 2. 2012) ("Exhibit 6"). 

11 
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present such ,lll exclusionary threat. Nevertheless, this is another arca that 

the Department should review. 

5. Of coursc, with respect to all these points, the Department should "tmst 

but verify" as President Reagan used to say. If the parties' statements and 

documents prove Unlme or at least insufficient to alleviate concerns that 

thc collaboration might undcnnine Verizon's incentive to compete for the 

provision of broadband wireline service or otherwise threaten competition, 

then the Departmcnt should consider the magnitude of efficiencies made 

possible by the reciprocal sales agency agreements. Often such marketing 

efficiencies can be somewhat underwhelming. Nonetheless, the patties' 

efficiency claims should be given fair considcration. 

VI. The Innovation Collaboration Bf'tl1Jeen Veri:::on Wireless and the Cable Companies 

A. Lastly, the opponents have raised cone ems about the agreement between the 

parties to engage in joint R&D of "technology to better integrate wireline and 

wireless products and services." Of all the aspects of the transactions betwecn 

Verizon Wireless and the cable companies, this one on its face seems least 

troubling, for several reasons. 

B. Generally, collaborative R&D is importatlt and a positive contributor to consumer 

welfare, so much so that Congress cnacted a statute, the National Cooperative 

Research Act of 1984, to ensure that the antitrust laws treat eollaborative R&D 

sympathetically and that ccrtain features of the antitmst laws (such as treble 

damagcs atld per se mles) do not deter sueh R&D.IO The Scnate Judiciary 

Committec's report on the law remains worthwhile reading, for it provides a 

thoughtful description of how the antitrust "rule of reason" should apply to 

collaborative rescareh. To summarize, so long as there is room for several other 

competing R&D efforts that is, as long as there are others outside the venture 

competing to create and dcvelop innovations in the same space, thcn the 

collaboration poses little if any conceivable threat to consumer welfare. 

C. Here, there is atl explosion of competition to integrate wireline and wireless 

products and services. A great deal of that work is being done by platform 

vendors (like Google, RIM, Apple, and Microsoft), device OEMs (like Samsung, 

HTC, LG, Nokia, and Motorola), hardware and infrastructure manufacturers (like 

Ciseo, Junipcr, Ericsson, Intel, Qualcomm, and Broadcom), and content providers 

(like Yahoo!, Fox, Viae om, and AOL). If anything, wireless and wireline service 

16 National Cooperative Research Act of 1984, Pub. L. No. 98-462, § 3(3), Stat. 117 (1984) (current version at 15 

USC. § 4301 (2004». As a young lawyer in the Justice Department, I had the opportunity to work with the 

predecessor of this Suhcommittcc in developing the statute, At the time, there was a recognition that. so long as 

legitimate and appropriately structured, joint R&D rarely ifcver threatens consumer welfare. Since the enactment 

of the law, rm unaware of any court condemning a legitimate R&D ,IV. 

12 
105 

providers have been laggards. In short, there is no cause for concern that a 

collaboration between Verizon Wireless and the cable companies will corner the 

market on such R&D efforts. 

D. Nonetheless, some opponents io the deals have argued that there is reason to be 

concerned that the innovation collaboration may develop proprietary interfaces 

that the collaborators can usc to exclude competitors. 

1. The first and best response is "we'll cross that bridge !fwe ever get to it." 

The venture has developed nothing yet, and it may never do so. 

2. Second, to the extent that the JV develops proprietary interfaces that arc 

closed, it i's unlikely that those interlaces will gain traction. Apple, for 

example, is unlikely to embrace a technology that locks it into a limited 

number of providers who represent a small fraction of the market; if others 

in the ecosystem refuse to embrace a closed interface, it is dead on arrival. 

3. Third, many such interlaces in the wireless and wireline area are set and 

administered by standards bodies. Typically, standards bodies will only 

adopt proprietary technology into their standard if the owners of 

committed essentiallP (sometimes referred to as Standards Essential 

Patents or SEPs) agree to make their SEPs available on fair, reasonable, 

and non-discriminatory (FRAND or RAND) terms. Moreover, there is a 

strong argument under the antitrust laws that an owner of SEPs who has 

agreed to the FRAND commitment should not be able to usc SEPs to 

enjoin or exclude anyone seeking to implement the standard. 17 To the 

extent that is the rule, the ability ofVerizon Wircless and the cable 

companies to use their proprietary technology developments to frustrate 

interoperability or seize control of standard interfaces is diminished. 

VII. Conclusion 

A. Based on my limited time and restricted access to information, the foregoing 

reneets my current view on how best to analyze the proposed transactions 

between Verizon Wireless and the cable companies. 

B. Thank you tor your attention. I am happy to answer any questions. 

!7 See Statement (~rthe Department of Justice's Antitrust Division on Its Decision 10 Close Its Investigations of 

Coogle fnc. 's Acquisitio/l o/MolOrola Mobilitv Holdings Inc. and 'he AcquisiTions o/Certain Patents by Apple Inc .• 

Microsoji COIp. and Research fn Motion Ltd. at 5 ("If[Applc and Microsoft's commitments arc] adhered to in 

practice, these positions could signifIcantly reduce the possibility of a hold up or use of an injunction as a threat to 

inhibit or preclude innovation and competition."), http:!;'www-justice.gov/atr/public/press _Tclcascs120121280190.pdt: 

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"The Verizon/Cable Deals: Harmless Collaboration or a Threat to Competition and 

Consumers?" 

Testimony of Steven K. Berry 

President and Chief Executive Officer 

RCA-The Competitive Carriers Association 

Before the 

Senate Judiciary Committee 

Subcommittee on Antitrust, Competition Policy and Consumer Rights 

March 21, 2012 
107 

Chainnan Kohl, Ranking Member Lee, and members of the Subcommittee, thank 

you for inviting me to testify about the proposed spectrum transfer and the integrated 

commercial agreements between Verizon Wireless and SpectrumCo LLC (consisting of 

Comeast, Time Warner Cable, and Bright House Networks) and Cox TMI Wireless LLC. 

Together these transactions will further cement Verizon's control over several critical 

resources for providing mobile broadband service, including most notably spectrum and 

access to roaming, while also potentially expanding Verizon's control over access to 

content, innovative services, and intellectual property. These deals merit a thorough 

investigation into the anti competitive effects they may have on consumers and the future 

of our industry. This inquiry will prove that substantial and stringent conditions must be 

used to mitigate the anticompctitive effects of these transactions, and if these conditions 

are not included, the transaction must be denied. 

RCA is an association representing more than 100 competitive wireless providers 

across the United States, including many rural and regional carriers, providing 

commercial services to subscribers throughout the nation. Many of RCA's members 

individually serve fewer than 50,000 customers, while RCA membership also includes 

larger regional and national carriers. 

A significant change has occurred in the wireless industry over the past half 

decade. We have moved from talking about the "Big 4" national wireless carriers to 

increasingly referring to the "Big 2," a reflection ofthe level of control that these massive 

carriers hold over the industry against all competitors. In the once-competitive wireless 
108 

industry, the dominance ofthe two largest wireless carriers is visible by nearly any 

measure, including industry earnings beforc intcrcst, taxcs, depreciation, and 

amortization (EBITDA), total revenues, quantity ofprimc spectrum and valuc of 

spectrum. 

This deal is not about spectrum price. This deal is "an integrated transaction. 

There was never any discussion about selling the spectrum without having the 

commercial agreements," as Comcast's David Cohen recently stated, in which the major 

wireline providers in many markets will be at best joining forces to provide joint services 

and at worst effectively agreeing not to compete with each other. Through the 

spectrum transaction, related marketing deals, and joint venture between the companies, 

Verizon will not compete for wired services with the cable companies, and the cable 

companies will not eompete for wireless service with Verizon. If this deal concerned 

speetrum only, the cable companies could gamer a much higher price for the spectrum 

from spectrum-starved carriers. 

In AT&T's defunct attempt to takeover T -Mobile USA, the Department of Justice 

and the Federal Communications Commission recognized that the market has become 

imbalanced between the Twin Bells (AT&T and Verizon Wireless) and the rest of the 

industry. Just before AT&T abandoned the T -Mobile takeover, Verizon struck a deal 

with the cable companies, attempting to crowd out competitors and push the precarious 

state of the industry over its tipping point. While Verizon and the eable companies' 

transactions are distinguishable, the result would be the same. Without substantial 

conditions, this deal would send an anticompetitive wave crashing through the industry. 

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Spectrum 

Proponents of this deal havc statcd that these transactions are only about spectrum 

and that inquiry and oversight are not needed, while at the same time openly stating that 

spectrum is the lifeblood of the wireless industry. Because spectrum is a scarce and finite 

taxpaycr owned resource, it is a unique, fundamental input for wireless services. Federal 

policymakers must ensure that further spcctrum resources are made available to feed the 

proliferation of wireless services. But it is even more critical that federal policymakers 

ensure that spectrum be made available to competitive operators who can and will 

immediately put it to use to expand mobile broadband and consumer choice. Verizon has 

shifted its public stance of having adequate spectrum resources to meet its needs through 

at least 2015 to stating to the FCC that it will need additional spectrum as early as 2013. 

All the while, Verizon maintains a vast spectrum warehouse of prime, unused spectrum 

and now looks to add additional spectrum resources to its stock pile. Putting asidc the 

current transaction for this brief moment, I can assure you that virtually all RCA 

members would be ecstatic to find themselvcs in a similar spectral position as Verizon. 

This transaction would transfer at least 20 MHz of prime, unused, and nearly 

nationwide spectrum into the hands of a carrier that already holds as much as 44 MHz of 

unused spectrum in many markets. At the same time, many competitive carriers are 

approaching exhaustion of their current holdings. Verizon's dominant control over other 

critical market inputs, including wireline backhaul, roaming for both voice and data 

serviccs, and monopsony control over acccss to cutting-edgc, interoperable devices, 

exacerbates this problem. 

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All Spectrum is not Created Equal 

Reviewing the spectrum holdings of multiple carriers will not result in an applesto-apples comparison, as all spectrum is not created equal. Based on the propagation 

characteristics of the different frequencies as well as the potential for interference and 

various operations in neighboring spectrum bands, a direct megahertz to megahertz 

comparison is virtually impossible. However the spectrum band is sliced, Verizon 

demonstrates a stronger portfolio than most of its competitors, which would be bolstered 

if these transactions proceed as proposed. Federal policymakers must analyze this 

current transaction in the context of how much spectrum Verizon holds and how 

efficiently V crizon is using it. 

V crizon seeks to purchase at least 20 MHz of spectrum in the Advanced Wireless 

Service (A WS) band. Since it has already been cleared, this spectrum is ready for 

immediate 4G Long Term Evolution (L TE) mobile broadband deployments. Importantly, 

it is not encumbered by existing operations from other wireless operators or government 

users and the standards for L TE service over A WS have already been established as 

"Band 4." AWS is one of four spectrum bands, along with Cellular, PCS, and 700 MHz, 

that will be used for the deployment of domestic L TE service. 

Not surprisingly, Verizon holds all four of the spectrum bands ready for 4G LTE 

deployment, and Verizon has significant amounts of under-used or unused spectrum. 

This spectrum grab is premature at best and nefarious at worst based on this 

underutilization of spectral resources which are primed and ready for L TE deployment. 

To put this in context, Verizon has proposed to spend $3.9 billion for the cable 

companies' A WS spectrum while over $5 billion in other spectrum it has previously 

4 
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purchased remains unused. This spectrum warehousing forecloscs the opportunity for 

other carricrs to expand serviccs. 

Verizon holds 22 MHz ofnationwidc 700 MHz Upper C Block spcctrum, as wcll 

as an additional 12 to 24 MHz of Lower 700 MHz in several markets. Yet bas cd on its 

buildout status reports filcd with the FCC earlier this year, Verizon has begun 

constructing and offering service only on the C Block, while nearly $5 billion in spectral 

resourees purchased at auction lie fallow in Verizon's spectrum warchouse, and while 

many of our members struggle to offer competitive services to eonsumers over 

significantly less spectrum. 

Further, Verizon's massive spectrum warehouse and purchasing power has a 

chilling effect on the secondary spectrum market. Verizon is able to pay staggering 

amounts for spectrum on the secondary markets, which encourages spectrum speeulation 

for unfair financial gain. Instead, some speculators with no intention of constructing and 

operating wireless facilitics are holding on to fallow spectrum in the hopes of a "big 

score" from one of the duopoly carriers. If the deal is approved as proposed, Verizon will 

add even more spectrum to its warehouse while competitive, spectrum-starved carriers 

are left bchind. 

Lack ofIntcroperability Further Tips the Competitive Balance in Verizon's Favor 

Long Term Evolution (LTE) promised to bring together GSM and CDMA 

technologies and unite the industry. As thc FCC was attempting to establish the 700 

MHz spectrum as thc 4G LTE spectrum band, Verizon and AT&T were creating separate 

band plans on which only thcir devices would operate. AT&T and Verizon successfully 

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112 

bifurcated the 700 MHz spectrum, isolating lower A block holders, and stranding them 

without access to interoperable mobile broadband devices. Smaller carriers without a 

sufficient number of customers to demand the direct attention of equipment 

manufacturers found their frequencies orphaned. As a result they have been largely 

unable to deploy L TE services on 12 MHz of prime, low-band spectrum. 

Beyond the impact to Lower A Block licensees, this bifurcation has had a chilling 

effect on competition throughout the entire industry. The most telling example comes 

from Cox Communications. This past year, Cox decided to exit the wireless market. In 

its press release, Cox stated that its decision to no longer sell its 3G wireless service was 

based on the lack of wireless scale necessary to compete in the marketplace, the 

acceleration of competitive 4G networks, as well as the inability to access iconic wireless 

devices. Lack of interoperability has a negative competitive impact on the entire market. 

RCA members spent nearly $2 billion on 700 MHz spectrum, which they cannot 

use as a result of anticompetitive practices of the larger carriers. Smaller carriers, and 

their now stranded investment, continue to sit on the sidelines while Verizon and AT&T 

get a head start on deploying 4G LTE throughout the country. Verizon itself could 

mitigate some of the harms by deploying its 700 MHz lower A and B block licenses and 

demand inclusion of these bands on procured devices. Instead, that spectrum remains 

unused in Verizon's warehouse. 

Additionally, the boutique specifications, known as band classes, have created a 

new, technical barrier to roaming. Where devices are not technically compatible, even 

when operating on the same technology in the same spectrum band, roaming will not be 

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possible. Restoring interoperability remains one of the most pressing competitive issues 

in the industry today. 

Roaming Is Fundamcntal to Compctition 

No carrier provides ubiquitous scrvice. Wireless customers must roam onto other 

compatiblc networks to receive service when outside of their provider's coverage 

footprint. By their very nature, rural and regional carriers have less spectrum and smaller 

coverage footprints than the national carriers. The geographic service areas of RCA's 

members do not replicate the massive national footprints ofVerizon and AT&T, and so 

RCA's members are heavily reliant on voice and data roaming arrangements to fill the 

gaps. The Commission has repeatedly recognized that roaming agreements can be 

critical to providers, especially smaller providers, remaining competitive in the mobile 

services marketplace. 

Roaming agreements were once commonplace. However, as the industry 

consolidated and market power became concentrated in the hands of fewer carriers, 

Verizon and AT&T have built a roaming duopoly where they rarely, if ever, need smaller 

carriers' networks to fill coverage gaps. As a result, Verizon and AT&T have 

increasingly been able to hamstring the ability of other carriers to compete by refusing to 

offer voice and data roaming on commercially reasonable terms and conditions. RCA is 

pleased the FCC took action last year to ensure voice and data roaming where technically 

possible, but RCA members continue to struggle to negotiate commercially reasonable 

data roaming agreements. This is because Verizon has appealed the data roaming order, 

leaving the impact in limbo. Further, while the order is an important back-stop in private 

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negotiations, these negotiations remain very one-sided with the larger carriers having 

significant bargaining advantages over the smaller carriers. Simply put, Verizon has the 

power and incentive to stall negotiations to foreclose competition. This transaction will 

only increase Verizon's dominance over the roaming market by eliminating four potential 

roaming partners. 

Not coincidentally, it is partially through Verizon's dominant control over the 

roaming market that brought the cable companies to the table to surrender their spectrum 

to a one-time competitor rather than build out their own networks. When the FCC 

adopted its Data Roaming Order, NCTA, a trade association representing cable providers, 

stated that, "adopting enforceable data-roaming rights will enable new entrants to 

compete on a nationwide basis and give consumers more choice and flexibility in 

wireless services." The most telling example of the importance of data roaming comes 

from the Applicants themselves. In explaining some of the challenges to building a 

network to thc FCC, and in public statemcnts, the Cablc Companies said they would nccd 

to secure nationwide roaming agreemcnts I. They rightly notcd that wireless consumers 

expect service coverage wherever they travel and that no carrier, and especially not a new 

entrant, can provide service in all areas, which necessitates that it obtain roaming 

arrangements with other carriers. Indeed, Comcast stated publicly that "access to 

roaming agreements is next to impossible." 

The roaming challenges expressed by the cablc companies involved in the 

transaction today are experienced throughout thc industry by all competitive carriers, as 

they noted. Increasing Verizon's markct power will only exacerbate thcse issues. 

1 David L. Cohcn, Clarifying Comcast's Spectrum Position, Comcast Voices, Jan. 17, 

2012, hltp:/jJ1\og.cOll!f.ast.com!20 12/0 I lc!arifyiQg-comcasts-spcctrum-position.html. 

8 
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Federal policymakers should not implicitly endorse thc "If you can't beat 'em, join 'em" 

philosophy. 

Cable's Competition with thc Telephone Company 

Despite the cablc companies' inability to successfully launch their own facilitiesbased wireless services to compete with Verizon, the cable companies have found 

success in competing with Verizon's other servicc offerings, including FiOS. With 

unconditioned approval of these transactions, such compctition will vanish. As the onetime competitors join forces to market and sell each others' services, federal 

policymakers must publicly establish clear rules of the road to ensure that this cozy 

arrangement docs not stifle future innovation. 

For example, cable companies provided a thrcat to land line phonc companics, 

such as Verizon, with the dcvelopment and launch of voice over intcrnet protocol (VoIP) 

services, giving consumcrs a choice of purchasing phone service from the phone 

company or their cable provider. The cable companies' broadband products also 

provided an alternative internet offering to Verizon's digital subscriber line (DSL) 

servlcc. 

Essentially, in much of America there are two wires reaching most consumers 

one from the phone company and one from thc local cable franchise. In many markets, 

these wires are controlled by Vcrizon and one of the cable companies involved in this 

deal. In fact, nearly 70% of the 82.5 million Americans covered by Verizon's local 

exchange carrier (LEC) territory are covered by the franchise area of one of these cable 

companies. For these nearly 60 million consumers, the only wires reaching their homes 

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will be operated by companies working together through these joint agreements. This 

raises serious questions regarding Verizon and the cablc companies' willingness to 

compete on serviccs or costs. This Committee, the 001, and the FCC must carcfully 

consider this competition issue. 

Backhaul and Control Over the Wircs 

In addition to being the two largest wireless providers, Verizon and AT&T are 

also the two largest wire line providers. This provides the two carricrs with a significant 

competitive advantage, as they effectively control the backhaul networks that provide the 

pathway from wireless towers to the public switched telephone network. These two 

largest providers have a history of discriminating against RCA members in the sale of 

backhaul capacity, not surprisingly favoring their own wireless affiliates. 

Increasingly, cable companies have provided an alternative backhaul scrvice for 

wireless carriers. The growth of cable backhaul has also becn lucrative for the cablc 

companies. For example, in its fourth quarter 2011 earnings releasc, Timc Warner Cable 

noted an almost 70% growth in backhaul revenues injust one year, from 2010 to 201 L 

The availability of cable backhaul capacity acts as a constraint on Verizon's and AT&T's 

incentives to raise backhaul prices evcn further. Now, however, Verizon and the cable 

companies have entered into a series of agreements, which raises the serious question of 

whether the cable companies havc an incentive to continue to provide othcr wireless 

carriers with competitive offerings in the backhaul and spccial access markets. 

With the cable companies resclling Verizon Wireless service, it is critical that 

cable companies do not discriminate against competitive carriers in thc provision of 

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backhaul service in favor of Verizon Wireless. Similarly, the FCC must carefully watch 

what Verizon, which has built out fiber networks to support its FiOS offering and to 

provide its own backhaul to Verizon Wireless cell sites, does not abandon the strategy of 

investing in and upgrading their own wired network. With Verizon and the cable 

companies now jointly marketing each others' services on a cooperative basis, in many 

areas the backhaul market may go from a duopoly (Verizon and the cable companies) to 

an effective monopoly (the cooperative Verizonlcable companies' joint effort). 

WiFi Services and Offload as an Alternative Solution to Network Congestion 

One way to reduce network congestion, without as great reliance on purchasing 

backhaul from a competitor, is to utilize WiFi offload capabilities. Congestion issues are 

resolved by moving traffic off the cellular network utilizing exclusively licensed 

spectrum and on to an internet protocol network. By connecting mobile devices to WiFi 

networks, traffic can be more immediately taken off the air and onto a wired network, 

allowing the operator to better handle capacity issues. Beyond the network operator side, 

consumers are also increasingly relying on WiFi networks with an ever-increasing 

number of connected devices. 

A growing trend in the industry is to shrink the size of cells through use of picoand femto-cells and other systems to bolster this moving traffic offthe air. All of these 

options rely on access to the wired network through either the phone company or the 

cable company. Cut off this access, and a WiFi offloading solution is eliminated. As the 

industry faces what many, including FCC Chairman Julius Genachowski, have referred to 

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as a "looming spectrum crunch," we should work to identify ways to expand access, not 

give one set of teamed companies control over most of the solutions. 

Cable has been a leader in building out WiFi hotspots, utilizing unlicensed 

spectrum to provide unlimited and efficient wireless network access to their customers. 

For example, Comcast has over 20,000 WiFi hotspots from Philadelphia to New York 

City alone. With increased incentives to rely on Verizon for wireless service, cable 

companies may reduce expansion ofWiFi networks, or make them available only to 

Verizon Wireless customers for mobile offload. Unfortunately, the removal of 

competition in this area will slow innovation and deployment of the high speed mobile 

broadband networks that all consumers and our economy rely on. 

Joint Marketing 

The agreements between the cable companies and Verizon shield each others' 

core businesses from competition. Each company would have a stake in the success of 

the other, and accordingly even if there is no formal arrangement not to compete, the 

incentives are dramatically reduced. Regarding wired services, the two wires going to 

the home are wrapped up into one. 

As wireless broadband has grown and speeds have increased, L TE technology has 

brought us a potential third "line" to the home. Affix a "cantenna," a cylinder-shaped 

antenna for receiving the LTE signal, to a structure and a customer can gain access to 

wireless broadband using the latest network technology to access the internet at speeds 

that are comparable or better to other potential offerings, particularly in rural areas. Yet 

12 
119 

this third connection to the home is also under the control of the Verizon-Cable team, 

essentially wrapping up all three means of connecting the home under one banner. 

Moreover, other anticompetitive effects may loom within these agreements as 

well but since they have been designated as "highly confidential" by the companies, I 

am unable to review or comment on them. A thorough examination of such agreements 

must be made to determine whether other potential anti competitive harms exist behind 

the curtain of the secret highly confidential documents. 

FCC Must Update the Spectrum Screcn 

The FCC has recognized that the control of spectrum licenses can translate into 

control ofthe market, and has historically takcn steps to ensure that licenses are 

accessible to a range of companies and interests. At one point we had a spectrum cap, 

with a limit on the amount of spectrum that one entity could hold. Following the sunset 

of the spectrum cap, the FCC moved to using a spectrum screen. For the past cight years, 

the Commission has used this now-outdated tool to determine whether or not to closely 

examine particular markets for competitive harm due to the consolidation of spectrum 

into the hands of too few entities. Because the operative facts in the dynamic broadband 

market were constantly changing, thc Commission found it nccessary to modify the 

screcn constantly on a transaction-by-transaction basis, leading to recurring complaints of 

ad hoc decision making. While the spcctrum screen may have been a useful transitional 

mechanism as the Commission moved away from spectrum caps in local markets, the 

Commission should now usc a new approach to determine competitive harm. The 

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spectrum screen approach is no longer an adequate tool to consider whether competitive 

harm may be occurring in a particular market. 

Under the current spectrum screen, this transaction triggers additional scrutiny in 

only a few markets. As an informal tool for evaluating transactions, this points to the 

need for the screen to be updated to reflect today's market realities - such as the fact that 

the FCC no longer considers the wireless marketplace to be "effectively competitive" and 

the fact that a duopoly now exists between AT&T and Verizon. Moreover, the standard 

spectrum screen analysis docs not adequately account for the fact that not all spectrum for 

broadband use is comparable as indicated above. The Commission should abandon the 

spectrum screen approach in favor of a new paradigm, used in the AT&T IQualcomm 

transaction, in which the Commission reviews the potential anti-competitive effects of 

each proposed transaction on a national level, using a case-by-ease analysis. This 

approach would more closely approximate the reality of the current mobile wireless 

industry. If the FCC continues to utilize its spectrum screen, it should properly apply 

weighted values to different bands and blocks of spectrum based on the favorable, or 

unfavorable, characteristics that each band possesses for use in the provision of mobile 

broadband services. The spectrum screen should also more accurately reflect the current 

availability of wireless spectrum, which should result in a decrease of the spectrum 

screen. Finally, the FCC should consider a spectrum screen that is different for the 

dominant carriers in the industry - AT&T and Verizon - than it utilizes for the rest of the 

industry. The FCC must retain the ability to modify or alter the spectrum screen to adjust 

to new market conditions, including conditions created by the transaction at hand. 

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Verizon has previously agreed that the spectrum screen should be revised during a 

pending transaction. 

By adopting a screen that takes into account (I) the proper amount of usable 

spectrum; (2) a proper valuatIOn of spectrum and (3) the current marketplace reality that 

four carriers are needed. for competition in a market, the Commission would be able to 

more accurately determine the competitive harm caused by spectrum aggregation, 

particular in the context of additional speetrum aggregation by the two dominant earriers 

Verizon and AT&T. 

Conditions Must Be Imposed If These Deals Go Forward 

For all of the reasons described, this deal cannot be granted unless the 

Commission imposes stringent transaction-specific eonditions that limit the competitive 

harms that would result. Specifically, the FCC must impose: 

I. Significant spectrum divestitures; 

2. Commercially feasible provisioning of roaming; 

3. Interoperability and availability of interoperable devices; and, 

4. Affordable provision of back haul and special aecess services. 

Where Verizon elearly holds a sufficient amount of spectrum to mcet near-term 

demand, approval ofthe deal should inelude robust divestitures ofuneneumbered useable 

speetrum that ean be deployed by one or more eompeting operating carriers to provide 

wireless broadband services. In eonsidering speetrum divestitures, the FCC must conduct 

a full review ofVerizon's holdings and use in eaeh market across the nation to determine 

where spectrum may otherwise be put to better and more effieient use, rather than sit in a 

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spectrum warehouse. This is particularly important in rural areas, where Verizon appears 

not to be utilizing spectrum it already holds to its full capacity. The FCC should require 

divestitures to operating entities willing to enhance their current offerings or expand their 

current operations in markets where it is clear that Verizon's spectrum inventory 

unreasonably exceeds the capacity necessary to meet near-term demand. It is also critical 

that all spectrum divested be immediately available and suitable for deployment of 4G 

LTE services, including availability of interoperable devices and robust roaming 

opportunities. 

Verizon must be required to provide voice and data roaming on commercially 

reasonable terms and conditions. Roaming supports both consumer expectations and 

competition among carriers, and a stringent roaming condition will allow both existing 

operators and new entrants to compete in the market. Close scrutiny of the resale 

provisions contained in the joint market agreements with the cable companies should 

guide the justification of what is deemed to be commercially reasonable terms and 

conditions for roaming, and should in fact be lower than these reseller rates as roaming 

carriers impose fewer costs on a host carrier than do resellers. Further, a stringent 

roaming condition along these lines will not unduly benefit the cable companies for their 

unwillingness or inability to deploy their A WS spectrum as they compete against other 

facilities based providers. 

The Commission must also impose an interoperability condition, ensuring that 

equipment for all bands particularly for 700 MHz and A WS _. remains open and 

competitive, with all carriers having access to devices that arc interoperable within a 

band. The Commission must ensure that Verizon is prevented from restricting the best 

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123 

and most innovative handsets to its own spectrum bands and technologies. Although an 

intcroperability NPRM is forthcoming, the rulemaking and related appeal process on such 

a contested issue may be protracted. An interoperability condition on this transaction will 

mitigate competitive harms in the interim, and will be subject to revision in accordance 

with the Commission's ultimate conclusions in the interoperability proceeding. In 

addition, Verizon must commit to deploying mobile wireless services on its Lower 700 

MHz A and B Block spectrum in the near term. In doing so, Verizon would creatc an 

cquipment and infmstructurc market that would both decreasc its own warehousing of 

spectrum, as well as allow other providers to deploy on their own Lower 700 MHz A and 

B Block spectrum. 

Finally, the FCC must impose conditions for the provision of wire line backhaul 

and special access. Verizon and AT&T, the two largest providers, have a history of 

discriminating against competitors in the sale ofbackhaul capacity, tending to favor their 

own wireless affiliates. What already is a significant compctitive disadvantage for 

smaller carriers may become seriously exacerbated by the proposed Transactions. The 

joint marketing and resale agreements raise the serious question of whether the cable 

companies have an incentive to continue to provide other wireless carriers with 

competitive offerings in thc backhaul and special acccss markets. The Commission must 

condition this deal on access to Verizon's and the cablc companies' backhaul capacity. 

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Conclusion 

Further concentration in the wireless industry will continue to crowd out 

competition and ultimately harm consumers. In looking at the Verizon-cable deals from 

a wireless industry perspective, Verizon Wireless will continue to grow stronger, the 

viability of competitors will be further stressed, and four potential new entrants will be 

eliminated as the march to duopoly continues. Absent imposing each ofthe conditions 

discussed today, competitive carriers will continue to struggle to provide service as an 

alternative to an even stronger market dominant player. These deals must be conditioned, 

or they must be stopped. Otherwise, new regulations to artificially create the benefits of 

market competition will be required. 

Thank you again for the opportunity to testify today, and I welcome any 

questions. 

18 
125 

M ASSACHUSE1TS 

40 Main St, Suite 301 

F!orence, ma 01062 

tel 413.585.1533 

fax 413.585.8904 

WASHINGTON 

1025 Cormectj[ut Aile., SUite 1110 

Wasnington, D.C. 20036 

tel 202.265.1490 

fax 202~265.1489 

Written Testimony of 

Joel Kelsey 

Policy Adviser 

Free Press 

before the 

Senate Judiciary Committee 

Subcommittee on Antitrust, Competition Policy and 

Consumer Rights 

On 

March 21, 2012 

Regarding 

"The Verizon/ Cable Deals: Harmless Collaboration or 

a Threat to Competition and Consumers?" 
126 

2 

INTRODUCTION 

Chairman Kohl, Ranking Member Lee and esteemed members of the Committee, I 

thank you for the opportunity to testify before you today on behalf of Free Press. We 

are a nonpartisan nonprofit organization that works exclusively on technology and 

media policy. Through education, organizing and advocacy, we promote diverse and 

independent media ownership, strong public media, quality journalism and universal 

access to communications. 

Mobile technology has transformed our society and our economy at a breakneck pace 

during the past decade. In 2011, there were close to 323 million wireless subscriber 

connections in the United States. Almost one-third of households in this country have 

severed their landline service and become fully dependent on wireless service to 

connect them to their friends, loved ones, and emergency services.1 

Residential broadband service provides the foundation for the most vibrant sector of 

our economy. The Federal Communications Commission correctly writes in the 

National Broadband Plan that, "[Broadband] is enabling entire new industries and 

unlocking vast new possibilities for existing ones. It is changing how we educate 

children, deliver health care, manage energy, ensure public safety, engage government, 

and access, organize and disseminate knowledge."2 

However, as the consumer base for these services grows, the market providing them 

is quickly consolidating. The mobile wireless market has become top-heavy, with just 

two carriers controlling a vast amount of the profits and market share.3 Most 

consumers have the choice of only one, at most two, providers of residential wired 

ISee CTIA, "Wireless Quick Facts: Year End Figures," at 

bttp:/ /JJ'l)/)J'.didJ)l'f;/ Im/dia/ iildN,ft~y il(t(liinde),,:cjiJl/ -llD! 1032) 

'Federal Communications Commission, (onnecling America: The National Broadband Plan,xi (2010) 

(Naliotlal Brotldband Plcw). 

'Verizon and AT&T together control nearly two-thirds of all wireless subscribers and nearly 

four-tlfths of the entire wireless industry's profits . .l'eeW"ireless Industr), Benchmarks, SNL Kagan (2012). 
127 

3 

broadband service.4 Prices have remained high through artificially constructed bunclles 

that force consumers into buying larger packages of services than they want or need.s 

This lessening of competition and the discipline it provided for the market has left 

consumers with fewer choices, higher prices and unfair terms and conditions. This is 

no accident. It is the result of public policy decisions over the last 12 years to 

deregulate the broadband marketplace while it still faced monopoly conditions, and to 

place a disproportionate amount of the nation's most valuable spectrum into the 

hands of just two wireless carriers. 

Throughout much of my testimony I will focus on the specific consumer and 

competitive harms associated with the proposed transaction we are here to consider 

today. However, T would also like to provide a broader perspective to bring into focus 

the backdrop of consolidation against which this transaction is being proposed. 

THE LOOMING CRISIS IN COMPETITION 

In South Korea, connections arc three times as fast as those in the United States and 

one-third less expensive per month. As a result, adoption rates are close to 94 

percent.6 

In France, you can get Internet service that offer speeds twice as fast as Comeast's 

DOCSIS 3.0, or Verizon's DSL. You can get that service, bunclled with high 

definition TV and mobile data service, for your laptop throughout most of the country 

for $33 per month. Here in the United States, consumers pay three to five times that 

amount for the fastest speeds.7 

4See National Broadband Plan at 37. 

, For example, a report from the industry-supported Technology Policy Institute found that 

broadband prices in the U.S. increased even as prices around the globe dropped. See Matt Lasar, 

"Broadband prices dropping around the world, but not US," Ar.rTechnica, Dec. 15, 2010. ISP 

earnings indicate broadband prices are on the rise. Over the past rwo years Comcast's average data 

revenue per user increased more than 5 percent, from $38.09 in 2009 to $40.11 in 2011. 

Time\1(l arner Cable's average data revenue per residential user also increased more than 5 percent 

during this period, from $36.39 in 2009 to $38.32 in 2011. Survey data indicates most U.S. 

broadband customers believe they are paying tOo much for their service, with one-quarter reporting 

they have only one provider offering service where they live. See"Broadband Expert Survey of US 

Consumers Finds 94% Believe They Are Overpaying for Their Broadband Service," Broadband 

Expert, Feb. 6, 2012. 

"Sutter, John,"\'Vhy Internet Connections Are Faster in South Korea,"CNN, Mar 31, 

201O.hup:i ! ):oo.gV gRPS8 

'Benkler, Yochai, 
128 

4 

This is not a result of the free hand of the market. This is the result of a failure on the 

part of our nation's policymakers over the past 15 years to protect and promote 

competition. 

In March 2010, the FCC published its National Broadband Plan, in which the 

Commission predicted that soon 75 percent of American households will have only 

one choice for at-home' high-speed Internet service: their local cable monopoly.s 

These companies, which spent significant investments to upgrade their networks in 

the last decade, now stand poised to reap the windfall of an unregulated monopoly 

environment where they are currently raking in over 90 percent margins on providing 

data services.9 But despite these incredibly high profits, prices for U.S. consumers 

continue to rise, even as they fall for consumers in other countries around the world.lO 

For example, over the past decade, the monthly price for basic cable has increased 

more than 50 percent, from under $33 in 2001 to nearly $50 in 2011.11 A recent FCC 

report once again confirmed that prices are higher in areas where cable companies 

have been granted pricing relief based on a finding of "effective competition" as 

defined in the Cable Act. 12 

In addition to higher prices, this unconstrained consolidation means that the pipe 

providing access to news, entertainment, education, health care and communication is 

increasingly controlled by a single actor unconstrained by the forces of competition 

and free of government oversight. 

Similarly, the market for mobile broadband data is quickly trending toward a duopoly. 

The Justice Department and the FCC forestalled this trend by correctly and 

courageously denying the merger of AT&T and T-Mobile. However, this momentary 

pause in consolidation won't last long if the proposed transaction is allowed to 

proceed unaltered. 

'.lee National Broadband Plan at 42. ("[I)n areas that include 75'10 of the population, consumers will 

likely have only one service provider (cable companies with DOCSIS 3.0-enabled infrastructure) that 

can offer very high peak download speeds."). 

".lee Crawford, Susan. The Crisis in Communications, note 32 (citing Bernstein Research, Dec. 

2010 Black Book 81 (2010)). 

IOJupra note 5. 

"And for most consumers, add to this another $40 in charges for set-top boxes, digital, and HD 

services. See SNL Kagan U.S. Multichannel Industry Benchmarks, SNL Kagan, (2012). 

"See Implementation ofJection .3 of tbe Cable Telet,ision Cotlstfmer Protection and Competition Act of 

1992, Statistical Report Otl Alierage fultes/or Basic J en'ice, Cable Programming S eroiee, and Equipment, MM 

Docket No. 92-266, Mar. 9 (2012). 
129 

5 

Verizon and AT&T control two-thirds of all wireless subscriptions and 70 percent of 

the most lucrative post-paid market customersY Verizon's profit margin on wireless 

services is substantially higher than that for all other competitors, except for AT&T; 

and Verizon and AT&T together account for four-fifths of the entire wireless 

industry's profits -- the only two carriers that can claim double-digit shares of 

industry profits.14 

These increasing profits are a reality because consumers are shelling out more and 

more each month for wireless services. Recent data indicates that the average monthly 

wireless bill was $86 in 2011, some 2S percent higher than just four years prior. 15 

Figure 1: 

U.S. Wireless Market - Key Financial Metrics 

Wireless Wireless Share of Wireless 

Carrier Spectrum Book Subscribers (2011) Market EBlTDA Wireless Wireless CapExas i')/{I 

Value Industry ARPU (2011) of Revenue Share Margin EBlTDA (2011) 

Vemon $73,250,000,000 108,667,000 33°/11 48°/11 42% $53.80 12.8°/n 

AT&T $51,374,000,000 103,247,000 31{1/u 44°/11 37%, $51.02 18.6'% 

Sprint $20,529,000,000 55,021,000 16{)!Q 18% 7% $45.89 8J)O/o 

T-Mobile" $15,265,000,000 33,711,000 101l/6 31(l/o 9% $46.00 14.1% 

MetroPCS $2,538,600,000 9,346,659 3% 28% 2% $40.80 22.2% 

US. CeUular .... $1,470,550,000 5,932,000 2% 23% 1% $58.09 16.5% 

Leap Wireless $1,940,824,000 5,934,000 2i')/u 21% 1% $42.09 14.70/0-

S""",: CompaffJ SEC ji"'gs; SNL Kqfm; rm Prw AM!Jsis 

" 4Q 2011 results not available; 3Q or ¥TD 2011 values used 

Verizon and AT&T's spectrum holdings have nearly four times the value of TMobile's and Sprint's combined. These two dominant market players hold 80 percent 

of the most valuable beachfront spectrum for traveling long distances and penetrating 

buildings and rough terrain. 16 

USee Petition to Deny of Free Press, In re Applications of Celleo Partnersbip d/ b/ a Verizon Wireless and 

JpecfrnmCo. LLA and Cox 1M] Wireless, UJC For Con"e"t to Antin Wireless Licenses, WT Docket No. 

12-4, Feb. 21, 2012 (Free Press Petition to Deny), at note 26. 

!4Jee Free Press Petition to De'!y, at note 27. 

".lee "J.D. Power and Associates Reports: Prevalence of Non-Contract Monthly Service Plans 

Continues to Grow, as Product Offerings Become More Competitive with Those of Traditional 

Contract Service Plans," JD Power and Associates, Mar. 31, 2011; and "].D. Power and Associates 

Reports: Average Length of Time Wireless Customers Keep Their Mobile Phones Increases 

Notably," JD Power and Associates, Sep. 23, 2010. The 2011 data quotes above is a weighted 

average based on the 2011 results reported separately for contract and non-contract services. 

"See Free Press Petition to Deny, at 21. 
130 

6 

It is against this backdrop that Vcrizon, Comcast, Time Warner Cable, Bright House 

Networks and Cox Communications have proposed to sell one another's services, 

divide the market for at-home wireline broadband, and provide Verizon Wireless with 

the incentive and ability to leverage its market position, infrastructure and business 

relationships to stave off any serious competitive threat in the wireless marketplace. 

Allowing for further consolidation in this marketplace will only drive prices higher, 

reduce consumer choice, and have drastic consequences on the rate of innovation as 

the companies involved are freed from competition and find diminishing value in 

investing in better infrastructure. 

THE PROPOSED TRANSACTION CEMENTS THE TREND TOWARD A 

WIRELESS DUOPOLY 

The public airwaves over which broadband data is transmitted spectrum is the 

lifeblood of wireless technologies. There is a finite amount of it available and 

managing this scarcity is one of the most important functions of the Federal 

Communications Commission. 

Control Over the Input lvIarket 

In this transaction, Verizon Wireless has agreed to weaken its competitive position in 

the markets where it offers at-home fiber broadband service in exchange for the 

opportunity to buy the last natiomvide block of highly valuable wireless spectrum that 

will be available for the foreseeable future. The result will put Verizon in control of 

close to a third of aU mobile broadband spectrum measured by value 17, and it will give 

Verizon and AT&T a combined 60 percent value share of this critical input market. 

When policymakers weigh whether or not this transaction will harm competition or 

benefit the public interest, they must look across the wireless marketplace and ask 

questions about the future prospects for competition and how they will be impacted 

by this deal. 

As explained below, excessive control over the essential spectrum-input market will 

raise barriers to new entrants, inhibit the provisioning of new competitive services to 

consumers, and ultimately foreclose the ability of smaller competitors to mount 

serious challenges to the incumbent twin Bell wireless companies. 

Not All Spectrum is Created Equal 

Each band of spectrum in each local market has unique characteristics that result in 

no two identically sized blocks holding identical value. These differences are due in 

17See Free Press Petition to Deny, at 17. 
131 

7 

part to the propagation characteristics of the spectrum - how far they can carry a 

signal and how well that signal can penetrate buildings and terrain. The geographic 

location of spectrum also plays a role - spectrum licenses serving areas with a higher 

population density are valued differently than more rural areas. 

As with property, the location of broadband spectrum is the main driving force of its 

value. Unfortunately, the screens that the FCC uses to measure spectrum holdings 

don't measure this dynamic. These antiquated screens are out of date they measure 

only for the square footage of holdings (the amount of Mega-Hertz, or MHz) and fail 

to acknowledge whether the spectrum holdings are beachfront, beach adjacent, or 

have only a beach view. 18 

Any analysis of this transaction must take into account the value of the spectrum 

being sold in order to adequately examine the concentration of market power that 

results from this deal. Simply counting the total MHz of available spectrum held by 

anyone carrier provides an inaccurate and distorted portrait of market power. 

An analysis of the spectrum holdings most valued for providing mobile data services 

reveals a significant imbalance in ownership. Currently two companies - AT&T and 

Verizon Wireless - hold a disproportionate percentage of beachfront spectrum, with 

Verizon alone controlling one-third of the spectrum best suited for nationwide mobile 

broadband. 

However, even accounting for the value in spectrum best suited for mobile 

broadband offers inaccuracies. Spectrum values can vary based on geography and 

population density, as discussed earlier, and they can also become distorted in the 

presence of incumbents who can place a higher value on acquiring spectrum to 

disadvantage potential competitors.19 

Free Press attempted to provide a crude perspective of spectrum market share based 

on value by constructing a weighting scheme based on the book value of spectrum 

holdings reported to the SEC, recent auction prices, and recent prices reported on the 

secondary markets. The result can be seen in the table below: 

!K For a more in depth account of the inherent differences in the value of spectrum see Free Press 

Petition to Deny, atl 0-19. 

"See eg.Ex PartcSuhmission of The United States Department of Justice, In the Matter of A 

National Broadband Planfor Our Future, GN Docket No. 09-51, (2009) (DoJ Broadband PICIn Ex Pt/11e), 

at 22-25. 
132 

8 

Figure 2: 

U.S. Wireless Market 

Value-Weighted Shares of Mobile Broadband Spectrum 

Share of Each Band's Total MHz~Pops 

Carrier All MobHc All Mobile Broadband 700MHz Cellular pes AWS BRS EBS Broadband Spectrum (Value Spectrum Wcighted)* 

Vetizon 43% 48% 15(1/0 15%. 0% 0% 17% 29% 

AT&T 24% 44%, 26% 8% 0% 0% 16% 25% 

Sprint 0% 0% 27%1 0% 0% 0% 7°/1l- 7% 

T~Mobilc 0% 0% 20% 27% 0% 0% 10% 10% 

MctroPCS 1% 0% 3% 9% 0% 0% 2% 2% 

U.S. Cellular 3% 4% 2% 2% 0(\/0 0% 1% 2% 

Leap Wireless 0% 0% 2% 9% 0% 0% 2% 2% 

Clearv.rireCorp. 0%, 0'"'/0 Oll/o 0% 866

/" 62% 25%1 5%· 

SpectrumCo. 0% 0% 0% 21% 0% 0% 4% 4°/.., 

Cox 1°/(1 OO/e 0% 2%. 0% 0% 1% 1% 

Other 290/0 4%, 6% 8(1/0 14'% 38% 16% 14% 

S"""" Fij/mdh &pori; m. Pnss A.a!J;is; Jou .ot rrjled .. bJ<q>nII_"" 

*700MHz and cellular spectrum MHz-pops were weighted by a value of 1; pes and AWS-l were weighted by a value of 0.5; BRS 

and EBS were weighted by a value of 0.1. Wdghts chosen based on recent market valuations. 

Using this approach, we observe that if these applications are approved, Verizon will 

control fully 35 percent of all value-weighted mobile broadband spectrum. If a more 

finely tuned valuation methodology is used by the expert federal agency to assess 

market shares, this level of control over the spectrum input market would clearly be 

considered moderately concentrated and should raise red flags at the Do] and the 

FCC. Given the highly concentrated nature of the overall wireless market, the FCC 

and the Do] must conclude that this transaction would significandy weaken future 

prospects for meaningful wireless competition. 

The Impact of Spectrum on Wireless Competition 

Without access to a sufficient amount of high-quality spectrum, a wireless company 

cannot offer first-class wireless services. It cannot scale its business in a cost-efficient 

way, or keep up with growing consumer demand for wireless data. Spectrum, 

particularly highly valuable spectrum, is the input market on which the entire wireless 

industry is built. 

The higher the quality of spectrum a carrier controls, the less cosdy it is for that 

carrier to expand the capacity of its network. Cell towers can carry signals longer 

distances with beachfront spectrum, so fewer towers are needed to provide coverage 
133 

9 

in a given area.2()~Tith more spectrum, towers are also less likely to get overloaded with 

traffic, because the data demands on the tower from surrounding subscribers can be 

easily spread among the channels that the carrier owns licenses for. 

If a carrier lacks higher-quality spectrum, it must build more towers to carry its signal 

over even short distances, and to ensure its network keeps pace with consumer 

demand. The FCC has repeatedly noted that to provide coverage that requires one cell 

site with high-quality spectrum would necessitate nine cells with lower-quality 

spectrum.21 

Building a wireless network over low-quality spectrum requires an increase in the ratio 

of capital expenditures to profit. Put simply, a carrier must spend more of its revenue 

on building infrastructure and there is less left over for profits. 

Therefore, having a weaker spectrum position vis a vis your competitors makes it near 

impossible to mount a serious competitive challenge. To offer a comparable quality of 

service to consumers, a wireless company must spend much more to make efficient 

use of its less valuable spectrum holdings, driving the retail cost of that service to 

consumers ever higher. 

Foreclosure Value 

The Do J has pointed out that because of the important role spectrum plays in the 

investment strategies of wireless carriers, the value of that spectrum to incumbent 

providers is increased.22 The private value of spectrum for an incumbent in a given 

market includes not only the revenue from use of the spectrum but also any benefits 

gained by preventing rivals from using that spectrum to erode the incumbents' 

existing businesses. Therefore, even though a carrier may not need spectrum to meet 

an immediate demand, it has significant incentives to keep that resource away from its 

would-be rivals. 

Indeed, that appears to be the case in this transaction. The companies seeking 

approval for this transaction freely admit that "Verizon Wireless has sufficient 

spectrum to meet its immediate needs, and generally to meet increased demand in 

many areas until 2015."23 

".lee Implementation o/Section 6002(b) of the Omnihu, Budget Recondliation Act of 1993; AnTitICIl Report 

and Analy,is of Competitive Market Conditiotls with Respect to MoMe Wirelers, inc/tiding Com!JJelrial Mobile 

Services, WT Docket No. 09-66, Fifteenth Report, 26 FCC Rcd 9664, at para. 293 (reI. June 27, 2011) 

(Fifteenth Reporl). 

21[d. 

"Do! Broadband Plan Ex Parte. 

"See e.g. Cox Application, p. 12; SpectrtlmCo. Application, p. 13. 
134 

10 

Purchasing this spectrum is not the only way Verizon can meet increasing consumer 

demand for data, but it is the only way it can foreclose its competitors from providing 

a serious competitive threat by offering lower-cost high-speed mobile services. 

This Spectrum Will Not Be Put to Tts Most Tmmediate and Efficient U.re 

Verizon fails to offer a detailed explanation of when and in what geographic markets 

it plans to use the spectrum being sold in this transaction. Without such a showing, it 

is reasonable to expect that other wireless carriers that do not enjoy Verizon's 

superior spectrum depth would better serve the public interest by putting these 

licenses to use immediately. 

Indeed, putting this spectrum in the hands of other carriers would promote more 

balanced use of all broadband spectrum across multiple carriers' networks. That just 

two carriers hold most of the spectrum available for broadband use (and in turn most 

of the market share) while pleading spectrum poverty should send a strong signal to 

the FCC that it is not living up to its congressional mandate to "improve the 

efficiency of spectrum use."24 

Verizon also fails to offer any cost-benefit analysis detailing why hoarding this 

valuable spectrum for multiple years is more beneficial to the public interest than 

Verizon simply investing in other methods for increasing its capacity locally where it 

experiences increased data demand. 

Verizon emphasizes the ever-increas.ing number of smartphones and data-heavy 

devices on its network, but fails to mention the massive increase in revenues that 

come from this trend. 25 These are profits that can and shoulu be re-invested in the 

network to increase capacity via cell splitting, Wi-Fi offload and spectrum sharing. A 

quick look at Verizon's revenues and capital expenditures reveals that the company is 

well placed to make these investments. The intensity of Verizon's capital expenditures 

actually declined even as it accelerated its LTE rollout, indicating that it has substantial 

resources to meet network demand without increasing prices or reducing services. 

Verizon could do all of the routine things that carriers do to increase capacity to meet 

predictable increases in demand. And if Verizon fails to do these routine things, if it 

fails to invest in capacity enhancements like cell splits, then putting this spectrum in 

the hands of maverick competitors means customers will have alternatives. This is a 

reality that the duopoly carriers do not seem to understand their customers are not 

and should not be theirs forever, unless the carriers do what is necessary to earn their 

2447 U.S.c. § 332(a)(2) 

"Verizon's wireless revenues for 2007-2011 were $43.824B, $49.2988, $60.325B, $63.4078, and 

$70.154B. Verizon's net operating profits from its wireless division for 2007-2011 were $11.7378, 

$\3.96B, $16.6388, $18.7248, and $18.527B. 
135 

11 

loyalty. Further, it is not the job of government to assist carriers in retaining their 

customers at the expense of competition and innovation. 

THE PROPOSED JOINT OPERATING ENTITY AND JOINT MARKETING 

AGREEMENTS END WHAT LITTLE HOPE REMAINS FOR 

COMPETITION IN HOME BROADBAND SERVICE 

The joint operating entity (JOE) arrangement and joint marketing agreements (JMAs) 

represent an agreement between these companies to stay out of one another's way, in 

perpetuity. The agreements are designed to divide the market for wireline at-home 

broadband service between the cartel of companies that are party to the deal, and to 

give these companies more control over the pace of innovation to ensure that any 

future products and services do not undermine their legacy revenue streams of video 

and Exed broadband services. 

Congress recognized the danger in this sort of arrangement when it passed the 1996 

Telecommunications Act. That legislation specifically bars joint collaborations 

between local cable and local long-distance carriers.26 That is because in 1996 

Congress intended to encourage the kind of intramodal competition between cable 

and telephone companies that these agreements will eliminate. 

The word "competition" was used 196 times on the floor of the Senate to describe 

the Telecommunications Act. 

"Allowing cable companies to provide phones and phone companies to provide cable, 

this bill will spur competition and reduce costs to the Nation," Sen. Ted Stevens said 

of the bill his committee helped author. 27 

Openly striking deals to sell your rival's services is not the kind of competition the 

Telecommunications Act envisioned. The cutthroat competitive environment that 

pushes innovation forward and forces companies to continually invest in rolling out 

2647 U.S.c. § 572. See also Conference Report, Telecommunications Act of 1996, House of 

Representatives, 104th Congress, 2d Session, H.Rept. 104-458, at p.174. "The conference agreement 

adopts the provisions of the Senate bill limiting acquisitions and prohibiting joint ventures between 

local exchange companies and cable operators that operate in the same market to provide video 

programming to subscribers or to provide telecommunications services in such market. Such carriers 

or cable operators may enter into a joint venture or partnership for other purposes, including the 

construction of facilities for the provision of such programming or services. With respect to 

exceptions to these general rules contained in new section 652 Cal, (b), and (c), the conferees agreed, 

in general, to take the most restrictive provisions of both the Senate bill and the House amendment 

in order to maximize competition between local exchange carriers and cable operators within local 

tnarkets. n 
136 

12 

better products and services is born from companies doing everything they can to 

steal away their competitors' customers, not by offering to sign up your own 

cus tomers for rivals' services. 

With this transaction, it is clear that offering perpetual reciprocal marketing was the 

price Verizon paid for a seat at the table to negotiate the price of keeping this 

spectrum out of the hands of potential competitors. On the other side of the ledger, 

the cable companies need an assurance that the spectrum asset they are selling would 

not be used against them either in areas where they directly compete with Verizon 

FiOS, or by Verizon striking deals to offer quad-play services with satellite video 

providers.28 

For the average American consumer, this means higher cable and Internet bills every 

month; it means higher wireless bills; it means the cable-programming cartel will likely 

never be broken up; and ultimately it means the quality of U.s. communications 

networks will continue to trail that of many other developed nations, as the lack of 

real competition will mean less incentive to invest in R&D and network upgrades. 

The Agreements Reduce Ven'zon's Incentives to Promote FiOS as a Competitive 

Alternative to Cable Services 

Verizon Communications competes head to head with the big cable companies that 

comprise SpectrumCo in certain markets. It provides its FiGS bundle of voice, video 

and high-speed broadband service in direct competition with Comcast, Time Warner, 

Cox and Bright House in markets in the Northeast, iYIid-Atlantic and Pacific 

Northwest regions. 

The JMA's and JOE provide a roadmap for these former rivals to collaborate rather 

than compete. The Ji'v1As in particular remove the incentive for Verizon to 

aggressively market its FiGS product where the carrier competes head to head with 

the cable companies that are a party to this deaL 

Verizon Communications put it best when it submitted an expert analysis to the FCC 

in 2009: "[Cable and FiOS] have strong incentives to maintain and expand their 

subscriber base to spread their fixed costs over a large network of users. When a cable 

Z"See remarks of Lowell C. McAdam, President, Chief Executive Officer, COO & Director, 

Verizon Communications, Inc., UBS Global Media & Communications Conference, December 7, 

2011. "I think that's the reality of the situation we are in. As I talked with Brian Roberts, he said 

'look, LowelL If I se/I yotl the spectrum, that P"ts me on a partiettlar patb. T need to have a fallback that if this 

doej'n't work as well as Ille hope that I'm not blocked Otlt o/lJ!ireieJJ,' so I had to respect that as a partner. And 

an ANNO will have added burdens for them if they choose to go that path. They'll have to make 

that call, but it will be profitable for us if they do go that way. So it's a win-win I think for both of 

us." (emphasis added). 
137 

13 

company or teleo loses a subscriber to its competitors, it loses both the variable profit 

contribution from that subscriber as well as the subscriber's contribution to its fixed 

costs of building and maintaining its network."29 

Now, each time Verizon FiOS' cable competitors sign up a subscriber, the company 

does not experience this "loss in contribution to its fixed costs"; it sees a new 

potential mobile data subscriber where its margins are much higher. As a result, this 

transaction recalibrates the incentives in the market for wireline telecommunications 

services. The transaction weakens the incentives for Verizon to compete for market 

share and forecloses the hope that Verizon may expand its FiOS deployment to offer 

a competitive alternative to the cable monopoly in other markets. 

The result will be monthly subscription rates unconstrained by competitive pressure, 

and a reduction in investment for broadband deployment and infrastructure upgrades. 

Put simply, this means higher prices and slower speeds for consumers. 

The Agreements Prevent a Future Wireless Competitor from Market Entry 

The cable companies that jointly comprise SpectrumCo have argued that while their 

wireline infrastructure puts them in a position to build towers and invest in their own 

wireless broadband infrastructure, the costs and economies of scale associated with 

creating a new facilities-based wireless company are prohibitive. That is, they do not 

believe they can amass wireless market share quickly enough to justify building their 

own infrastrueture.3o 

Therefore, the companies argue, this transaction does not foreclose the entry of 

wireless competitors since they do not plan to invest in towers, contract with phone 

manufacturers, and deploy a network in the first place. However, there are several 

ways to enter the wireless market apart from building a proprietary network. Cable 

companies could have used this spectrum as leverage to partner with a noncompetitive wireless provider, like Sprint or T-Mobile, to buy wholesale access to 

their infrastructure and become a retail reseller of mobile service. 

In fact, many companies engage in this kind of agreement already, operating as socalled "mobile virtual network operators," or MVNOs. For example, Ting is a mobile 

operator that obtains wholesale access to Sprints network and resells that connection 

to consumers, offering monthly no-contract services that are below the retail prices 

charged by Sprint itself.}l 

'"See Petition 10 Deny of the Comnltmictllions Workers ~f America, at note 15. 

"'See e.g. Declaration of Robert Pick, Chief Executive Officer of Spectrum Co, LLC, Exhibit 4 of 

Public Interest Statement in Verizoll-.lpec/rumCoApplication. 

31 See htl)2;;.J.Lllil,>;&illI!.D,,:Il)::1iQ,cL . "We will make less money per customer in hopes of 

building more loyal relationships and earning referrals." 
138 

14 

Moreover, the cable companies selling this spectrum have shown their perceived need 

to offer quad-play services through the J~1As. However, under these agreements, the 

companies are not re-selling access to wireless services under competitive rates, terms 

and conditions. They are merely signing their own customers into Verizon Wireless' 

two-year contracts in exchange for an assurance they won't face competition from 

Verizon FiOS in the monthly video and broadband at-home market. 

For example, Verizon Wireless had been working with DIRECT TV to create a 

bundle of voice, video and mobile broadband that would have competed with cable 

offerings across the country, but terminated the project directly after announcing this 

deaL32 Similarly, the big cable companies had been working with the mobile 

broadband operator Clearwire to develop a quad-play bundle, and they too terminated 

that deal as soon as they entered into these JMAs that protect their services from the 

competition of Verizon FiOS.13 

From the perspective of consumers, a far better outcome would be for the cable 

companies to partner with a non-dominant wireless carrier, like Clearwire or TMobile, to offer quad-play packages that compete with the current Verizon/ AT&T 

wireless duopoly. This would riot only introduce a new competitive threat in the 

mobile market, it would also preserve what little competition exists in the at-home 

broadband market that this deal dooms. 

The Agreements Signal the End of the FCC's CutTent Broadband Competition Policy 

"Next-generation" wireless service commonly marketed as 4G LTE has long 

been hailed as the coming competitive savior to free consumers from their monopoly 

cable-broadband prison. 

Comcast has used wireless to downplay the harms of the wireline duopoly.34 Both the 

current35 and prior36 FCC chairmen have cited future wireless competition as the 

answer to concerns about the wireline duopoly. 

"See Comments of DIRECT TV, In re Applications ofVetizon et. aI., at 3. 

"'"'Peter Svensson, "Cable Companies Drop Wireless Dreams," Associated Pre.rs, Dec. 2, 201 L 

J4See e.g. Comments of Comcast Corporation, GN Docket No. 09-51,June 8, 2009, p. 41; Reply 

Comments of Comcast Corporation, GN Docket No. 09-51,July 21, 2009, p. 7. 

"See e.g. Steven Levy, "The Wired Interview: FCC Chair Julius Genachowski on Broadband, 

Googlc and His iPhone," Wired, March 4,2010. 

"'See e.g. Written Testimony of Chairman Kevin J. Martin, Federal Communication Commission, 

Before the Committee on Energy and Commerce, U.S. House of Representalives, P. 4, July 24, 

2007. 
139 

15 

The Commission's Wireless Broadband Access Task Force plainly suggested that 

"wireless networks can provide competition to existing broadband services delivered 

through the currently more prevalent wireline and cable technologies. Wireless 

broadband can creatc a competitive broadband marketplace and bring the benefits of 

lower prices, better quality, and greater innovation to consumers.,,37 

But be it 3G or 4G, the wireless savior has yet to show up and with these cartelization 

arrangements, it's clear that Verizon intends its 4G service to be a complement rather 

than a competitor to the cable broadband monopoly that most consumers face. 

These agreements remove any incentive for Verizon \Xtireless to use its 4G network to 

offer high-speed Internet access at competitive prices or terms with the current cable 

broadband packages. Instead, it will continue to keep low caps on the total amount of 

bandwidth consumed, and it will force would-be subscribers to buy through tiers and 

bundles of needless other services before purchasing Internet access.38 

The Agreements Should Trigger Antitrust Scrutiny in Light of the DoJ's Competitor 

Collaboration Guidelines 

The Dol's "Competitor Collaboration Guidelines" and the "Intellectual Property 

Guidelines" provide an outline for the kinds of collaboration that would negatively 

impact competition. 

The fact that the companies involved in this transaction are vertically integrated in the 

markets of monthly cable service, must-have content production and sports coverage, 

and wireline and wireless broadband services implicates several of the concerns raised 

in these guidelines and should trigger a strict antitrust review. 

For example, conditioning the rights to jointly developed research and development, 

by an entity outside the agreements, on the purchase of an additional item or contract 

obligation, could constitute illegal tying as described in Section 5.3 of the "Intellectual 

Property Guidelines." 

If pooling arrangements require the companies to share competitively senSitive 

technology, this could deter or discourage innovation because none of the companies 

want the others to have a free ride on their R&D investment.39 

3'See "Connected on the Go: Broadband Goes Wireless," Report by the Wireless Broadband 

Access Task Force ("FCC Wireless Broadband Task Force Report''), Federal Communications 

Commission, GN Docket No. 04-163, February 2005, at pp. 13-14. 

"For further commentary on the perils of bundling and tying in the wireless market, Jee e.K 

Written Testimony of Joel Kelsey, Consumers Union, Before the Senate Judiciary Committee 

Subcommittee on Antitrust, Competition Policy and Consumer Rights, June 16,2009. 

"See Federal Trade Commission and U.S. Department of Justice, Antjtrust Guidelines for the 
140 

16 

Antitrust concerns should also be triggered if the parties engaged in cross-licensing 

technology possess aggregate market power, because the likelihood these companies 

will exclusively deal with one another to exclude potential competitors is heightened.4D 

CONCLUSION 

Effective or meaningful competitjon occurs when 1) the barriers to entry for new 

competitors in the market are low; 2) consumers have a choice of alternative 

providers and services in the market and the costs of switching providers do not 

present an undue burden; 3) innovations in technology arc encouraged and lead to 

expansion of services and product offerings for consumers; and 4) no single fIrm or a 

group of fIrms have the power to influence the prices of the products and services. 

However, in the market for wireless and wireline telecommunications services, there 

are pronounced and extensive barriers to effective competition. Consumers are being 

locked in to the few large incumbents offering service and competitors are being 

locked out of the marketplace. 

There is no reason this pattern of poorly protecting the public interest has to 

continue. The Do] and the FCC showed immense analytical sbU and political courage 

in rejecting the AT&T/T-Mobile merger, even if they did send AT&T home with the 

Qualcomm parting gift. 

Though the transaction we are considering now does not appear on the surface to be 

as harmful as AT&T's most recent horizontal empire plans, Verizon's consolidation 

of valuable spectrum raises as many long-term competitive concerns. These concerns 

alone would be enough to reject these applications, but when viewed along with the 

unprecedented Verizon-cable cartelization agreements, the federal agencies reviewing 

this deal have no choice but to tell Verizon no if they intend to protect competition. 

Wireless companies are fond of evangelizing about the "spectrum crisis." Well, it's 

long past time we all get serious about the competition crisis that consumers are 

already facing, and that begins with the rejection of these anti competitive license 

transfers. 

Licensing of Intellectual Property (1995) (Intellectual Properf)! Gllidelines) at Section 5.5. 

,old. 
141 

Creeping Duopoly? 

TimWu 

Isidor & Seville Sulzbacher Professor of Law 

Columbia Law School, New York 

Does support for robust competition remain the communications policy of 

the United States? It may sound like a rhetorical question. Yet it is the right 

question to ask as we witness increasing concentration in most communication 

markets, including the prospect of de facto duopoly in wireless communications. 

It was the question underlying the AT&TfT-Mobile merger last year. And it is 

the same question raised by the sale of spectrum and marketing agreements we 

examine today. 

As compared with the spectacle of T-Mobile - AT&T, Verizon's softer 

strategy may seem a sideshow. But subtle action is often the more powerful, 

particularly in a distracted age. Verizon holds more valuable spectrum than 

anyone else, and should it complete this transaction, it will actually be left with 

spectrum holdings that are, by book value, larger than an AT&TfT-Mobile 

combination: Yes, AT&T's challenge to competition was feckless and loud. But 

Verizon's deal affects the very competitive structure of the communications 

market. 

This transaction (and others like it) does not threaten to be the grand coup 

that ends competition in our time. The danger, rather, is the prospect of a 

"creeping duopoly" in wireless, and in addition, a quiet end to the contest once 

thought to be the most important of all, namely, competition for the last mile. 

That is why the Commission must examine this transaction as closely as it did in 

the AT&TfT-Mobile merger. 

The usual dangers of excessive concentration are well-known: higher 

prices, poor customer service, and, over time, a kind of depressing stagnancy. 

But I would also like to highlight the particular dangers to innovation that are the 

likely byproduct of non-competition between Verizon and the main cable 

companies. 

My testimony covers three points. 

1. The Duty to Decide 

• See Comments of Sprint Nextel Corp., WT Docket No. 12-4, at 18-19. 
142 

There is nothing natural about the markets under consideration here, for 

the United States Government sets the structure of competition. Because 

spectrum is finite, necessary, and public, every decision the Government makes 

cannot help but affect the structure of the market. Even a decision not to 

intervene in a particular sale is a substantive decision with real and important 

effects on structure. 

Unlike in normal markets, the federal government has a particular duty as 

regards industry structure, for spectrum belongs to the public, and it is the 

Government's role to make sure their asset is being used properly. That means 

the Federal Communications Commission cannot sit idly by and say it is 

allowing nature to take its course. It must, on an ongoing basis, decide whether 

more competition or more concentration will be better for the people of the 

United States. This is the essence of the "public interest and convenience" 

standard - it is simply the duty of managers of any asset to maximize the 

interests of the actual owners, the citizens. 

The choice between concentration and competition is not necessarily easy. 

Once upon a time, Government believed that concentrated monopolies or 

duopolies, regulated to avoid abuse, would best serve the people. That was 

basically the policy behind the Commission's support of the NBC and CBS 

networks from the 1930s onward, the regulated duopoly in wireless in the 1980s, 

and even more clearly the theory behind the AT&T monopoly for most of the 

20th century. Despite rhetorical nods to competition, that approach remains the 

favorite of AT&T and Verizon today (without the regulation, that is). 

This nation's experience with both concentration and competition tends to 

suggest that competition yields better results for the public. The 

communications markets under monopoly were reliable, but began to stagnate; 

under competition, the same markets have been a source of abundant 

innovation, economic growth, and new gadgets for one and all. Relying on a few 

dominant firms is very good for the firms involved, but not so good for 

spectrum's owners, the public. 

It is true that Congress or the Commission remain free to decide that a 

regulated duopoly or monopoly best serves the people, as it thought it did in the 

1920s. But the greater danger is that Congress or the Commission will never 

actively make that choice. We face the prospect of falling into unregulated 

duopoly almost as if by accident, through choices never really made but made 

nonetheless. 

If the Commission truly believes that greater concentration in the wireless 

markets serves the interest of the American public, then it should approve the 

2 
143 

sale. It is free to choose concentration over competition, if it is willing to explain 

that choice to the spectrum's owners. But it does the public a disservice to 

passively support a drift toward duopoly without explaining why we have 

decided against a policy of trying to maximize competition. 

2. There is always a Tradeoff between Competition and 

Concentration 

Verizon, in its filings at the Commission, suggests its gain of spectrum will 

improve customer service and have no effect on competition. But that, of course, 

is impossible. In the wireless markets, spectrum is scale. Every hertz that 

Verizon gains is a hertz denied a smaller competitor. And so neither Congress 

nor the Commission ought pretend for that tradeoff between concentration and 

competition does not exist. 

Rather, the tradeoff faced is a familiar one. Over the last three decades, in 

defense of its competition policy, the United States has repeatedly faced the 

conflict between concentration and competition. Consider cases ranging from 

the AT&T breakup in 1984, the beginning of spectrum auctions in the 1990s, and 

most recently, the challenges to the AT&T/T-Mobile merger. In all of these cases 

the narrative was similar. The dominant firm argued that a more centralized and 

concentrated communications sector would do a better job of serving the needs 

of Americans. Bigger is better, the argument went; greater scale and size, said 

the dominant firm, will yield benefits not just for itself, but for everyone. But in 

each case the Government declined to take those claims at face value. 

When the United States left behind the ideals of regulated monopoly in 

exchange for a competitive communications policy, it committed itself to a 

different course. It found that competition, while messier, offers more for 

consumers over the long run than duopolies or monopolies. This means that the 

Government must question claims that industry concentration is necessary for 

better service to consumers, and in every case must weigh any claimed 

efficiencies of concentration against the competitive harms. 

It is true, as Verizon's filings suggest, that scale and size can yield certain 

efficiencies. There is no such thing as an effective one-man cell phone provider. 

But at some point the operational advantages of scale end and the strategic 

advantages begin. More concentration ceases to yield further efficiency, and 

becomes a means of weakening competitors. That is because a smaller 

competitor, denied scale (or, its equivalent here, spectrum) will remain at a 

disadvantage compared to the dominant firms. And so, every time we face a 

case like this, the question must be: will increased concentration actually be 

3 
144 

better for the spectrum owners, the people of the United States, or simply 

provide strategic benefits for the dominant firms? 

The consideration of the AT&T/T-Mobile merger was the latest 

installment of this contest between concentration and competition. AT&T 

argued (as AT&T has almost always argued) t that a more concentrated industry 

would yield better service for consumers. The Commission and the Justice 

Department declined to take AT&T at its word. Instead, the agencies pointed out 

that the effect on service was ambiguous, that the merger's main effect was to 

eliminate a "challenger" competitor, and ultimately concluded that the merger 

would substantially lessen competition. 

Today, the Verizon/ - Cable transaction forces us to confront exactly the 

same problem. Like its predecessors, Verizon argues that concentrating more 

spectrum (and therefore even more of the industry) in its hands will benefit 

consumers. But the real question is whether further concentration of spectrum in 

one firm will actually be good for consumers if it means less competition. The 

nation's policy demands this question be answered. 

3. The Public's Interest in Innovation 

Over the last several decades, the public and the economy has benefited 

enormously from the pace of innovation under a competition policy, as opposed 

to regulated monopoly. Much of that innovation has been of a highly dynamic, 

creatively destructive nature. In many cases, the once powerful have been 

humbled, and the meek have inherited markets. 

Concerns for innovation must inform the Justice Department's scrutiny of 

the marketing agreements between Verizon and the Cable firms. As marketing 

allies, the firms on each side now have reasons to avoid developing or 

aggressively promoting products that might seriously threaten the revenue 

streams of a partner. 

Verizon has been an important innovator. It was the first to try bringing 

fiber optics to the home, with the FiGS project. Its 4G L TE network is the 

furthest along. And as an innovator, Verizon Wireless is the greatest natural 

threat to disrupt the cable industry. 

Consider, for example, 4G broadband to the home. As PC Magazine wrote, 

"[t]he mobile broadband service that has the best chance of being a true cable 

t With the exception of the years between 1984 and 2006, when AT&T was a 

"competitive" firm. 

4 
145 

replacement is Verizon's new 4G LTE service." The firm's admirable "Home 

Fusion" product, just launched in rural areas, shows promise. Yet it is clear that 

4G to the home is a cable replacement, not a complement. And it is not clear how 

selling a cable replacement can be consistent with promoting cable's products. 

While a technology much promised but hard to deliver, the advent of 

wireless broadband to the home could turn the industry upside down. The 

promotion of competition in the "last mile" between the consumer and the 

national information networks is a long-standing policy goal of the United States. 

Our record of duopoly competition between cable and DSL is better than no 

competition. However, the potential of a "third wire" has long been something 

of a promised land, albeit one currently littered with the corpses of firms who 

have tried and failed to overcome infrastructure economics .. 

The greater, long term concern is that the industry's beloved" quadruple 

play" (telephone, wireless, Internet, and cable TV service), begun as a 

convenience for customers, could in time drift into a kind of market allocation 

scheme. For in truth the consumer benefits less from four services, than when 

one of the services tries to replace the rest. 

The fate of wireless 4G is an example of the danger to disruptive 

innovation presented by cooperation between the cable and the telephone 

companies. As allies, neither side has strong reasons to disturb each other's 

main sources of revenue with highly innovative products. But this is precisely 

what a strong innovation policy requires. 

*** 

The last 30 years have shown that the commitment to actual competition 

in communications is not a one-time decision. It is not something that can be 

announced and then ignored, but rather requires constant diligence. The 

dominant firms in a communications industry, whatever they may say, have 

little interest in competition. Left alone, history suggests the industry will drift 

toward monopoly or duopoly. The life in monopoly or duopoly is simply 

sweeter and more secure, and Wall Street prefers firms that immunize 

themselves from competitive attack. That is why it must remain the ongoing 

mission of the United States government to, as Felix Frankfurter put it, "secure 

the maximum benefits of radio to all the people of the United States." 

t Verizon itself might be counted as one of the firms to have tasted some of the 

bitterness of the last-mile with the challenges it has met in FiOS. 

5 
146 

QUESTIONS FOR DAVID COHEN SUBMITTED BY SENATOR AL FRANKEN

Senate Judiciary Committee 

Subcommittee on Antitrust, Competition Policy and Consumer Rights 

Hearing on "The Verizon/Cable Deals: Harmless Collaboration or a Threat to Competition 

and Consumers?" 

March 21, 2012 

Questions for the Record from U.S. Senator AI Franken 

for David Cohen, Executive Vice President, Comcast Corporation 

1. In December, AT&T announced that it was terminating its plans to acquire T -Mobile 

USA. This occurred just days after you announced your plans to sell your spectrum to 

Verizon Wireless. As we discussed during the hearing, there were many indicators that 

this deal was on the verge of collapsing long before AT&T's announcement in 

December. Can you please indicate when you talked to T-Mobile about acquiring your 

spectrum? Did you talk to them subsequent to the Justice Department's decision to sue to 

block the deal, or after the FCC signaled that it intended to fight the merger as well? If 

not, please explain why Comcast did not engage with T-Mobile at that time, especially 

since it seems likely that T-Mobile would have been willing to pay a premium over what 

Verizon paid to acquire this spectrum, which is adjacent to its current spectrum holdings. 

2. Please explain why Comcast chose to accept Verizon's bid over other companies' bids? 

Did Verizon bid more for this spectrum than !ill other companies? How did Comcast 

account for the potential economic benefits that it could derive from Verizon's decision 

to permit Comcast to market its products in areas where FiOS was available? Did this 

factor into Comcast's decision to accept Verizon's bid over other companies that do not 

have a product that competes directly with Comcast's products? 
147 

QUESTIONS FOR RANDAL MILCH SUBMITTED BY SENATOR AL FRANKEN

Senate Judiciary Committee 

Subcommittee on Antitrust, Competition Policy and Consumer Rights 

Hearing on "The Verizon/Cable Deals: Harmless Collaboration or a Threat to Competition 

and Consumers?" 

March 21, 2012 

Questions for the Record from U.S. Senator AI Franken 

for Randal Milch, Executive Vice President and General Counsel, Verizon 

Communications, Inc. 

I. Please provide a list of locations where Verizon has a video franchise; where FiOS TV is 

available; where Verizon is still in the process of deploying FiOS; and locations where 

there is no existing plan to deploy FiOS. 

2. Verizon has previously stated that wireless and FiOS represent the two greatest engines 

for growth and increased revenue per customer. On March 25, 2012, Citi Investment 

Research & Analysis wrote: "We believe Verizon's lower wireline margin relative to 

most of its peers represents an opportunity for improvement partly by increasing FiOS 

scale with time ... " Given this positive financial assessment ofFiOS, it seems unusual 

that Verizon would not contemplate continuing to build out FiOS in currently unserved 

areas, especially if there is adequate demand. Can you please explain (a) why Verizon 

has no further plans to build out FiOS based on demand; and (b) why Verizon has 

decided not to build out FiOS to cities such as Baltimore, Boston, Buffalo, Albany, 

Syracuse and other urban, metropolitan areas where there is high population density? 

3. During your testimony, you stated that Verizon Wireless stores do not sell FiOS. We 

have received reports to the contrary. Can you please verify that is indeed correct? Do 

these stores market FiOS products or offer other infonnation about FiOS to customers 

seeking wireless services? 

4. Will Verizon Wireless commit to not market or sell the cable company's broadband and 

video products in locations where Verizon FiOS is available to customers? 

5. During an October 21,2011 earnings call, Verizon's Chief Financial Officer Francis 

Shammo said: "By further penetrating existing [FiOS] markets, we will enhance our 

capital and operating efficiency and improve overall returns." Please explain how the 

joint marketing agreements do not alter or reduce Verizon's incentives to continue to 

maintain and build out FiOS and other wireline services. 

6. Verizon has touted the importance of broadband deployment for job creation, economic 

development, and improvements in education, health care, and public safety. 

a. Doesn't this deal create further incentives for Verizon to sell off more rural lines, 

reducing vital broadband services in underserved areas? 
148 

b. By reducing Verizon's incentives to build out its FiOS network to cities with 

significant low-income and minority populations, doesn't this transaction increase 

the digital divide? 

7. Do the joint marketing agreements contain exclusivity provisions that require the parties 

to terminate similar agreements with other companies? 

8. During the hearing, I asked you whether Verizon would commit to opening up any ofthe 

technology and intellectual property that your companies create as part of your joint 

venture to your competitors at fair, reasonable, and non-discriminatory rates. Can you 

please explain in detail why you do not think this would be an appropriate condition to 

place on this transaction? 

9. Has Verizon entered into similar commercial marketing agreements with Cablevision, 

Charter, or other major cable operators? 

10. Several Verizon employees have reported that Verizon has ceased hiring engineers and 

technicians to work on its copper lines. They think this means Verizon has already 

abandoned its copper infrastructure-and they are worried that this means their jobs are 

at risk and that Verizon is quickly shifting its resources to wireless and away from 

wireline. Please explain what impact you think this transaction will have on jobs in the 

next year, two years, and five years. Do you anticipate laying off any Verizon 

employees? 
149 

QUESTIONS FOR STEVEN BERRY SUBMITTED BY SENATOR HERB KOHL

Sen. Kohl's Follow-Up Questions for the Record for Hearing on 

"The Verizon/Cable Deals: Harmless Collaboration or A Threat to Competition and 

Consumers?" 

For Steven Berry 

1. Before assuming your position at RCA, you served as head of governmental 

affairs at NCTA, the cable industry's trade association. While you were there, and since then, 

wasn't it a strategy of the cable industry during the last decade to vigorously compete with phone 

companies in offering wireline phone and internet connections to consumers? Do you worry 

about this alliance between cable and one ofthe two largest phone companies - Verizon - as 

hanning that competitive battle? 

2. One thing that competitive wireless companies require is what is known as 

"special access" or "backhaul" - access over wired phone lines from cell phone towers to long 

distance phone and Internet networks. For years, the competitive wireless companies have 

complained about what they see as very high prices for special access from incumbent phone 

companies such as Verizon and AT&T. One way around the incumbents is to contract with the 

cable companies for special access. Do you have any concerns that this deal will change the 

incentives of cable companies to provide special access? 

3. In his March 8 Politico interview, David Cohen said that one ofthe reasons 

Comcast decided not to enter the wireless business was the presence of insurmountable hurdles 

like roaming - which he described as "next to impossible" to secure. If roaming is next to 

impossible for a company like Comcast to secure, what does that say about the ability of smaller 

carriers to effectively compete with Verizon? 

4. One very interesting facet of this deal is its timing. Verizon's deals with the cable 

companies were announced last December, just days before AT&T and T -Mobile announced that 

they abandoned their proposed merger. Some industry observers suspect that these deals were 

deliberately reached at a time when T-Mobile was not free to bid on this spectrum. T-Mobile's 

FCC filing states "it is likely no coincidence that Verizon Wireless signed this deal while the 

AT &T/T-Mobile transaction was still pending, so that T-Mobile was unable to compete to 

purchase this spectrum." What is your view? Do you believe that the timing of the deal had 

anything to do 'A;ith Verizon Wireless's desire to keep this spectrum out of the hands of 

competitors such as T-Mobile? 

5. The FCC has a test for evaluating acquisitions of spectrum, what they call the 

"spectrum screen." Verizon Wireless points out that this deal falls under the FCC's thresholds 

in 121 of the 136 markets in the transaction. Should that settle the question for those markets? 

Do you believe the spectrum screen - first developed in 200 I - is adequate to evaluate spectrum 

acquisitions today? Why or why not? 
150 

QUESTIONS FOR DAVID COHEN SUBMITTED BY SENATOR HERB KOHL

Sen. Kohl's Follow-Up Questions for the Record for Hearing on 

"The Verizon/Cable Deals: Harmless Collaboration or A Threat to Competition and 

Consumers?" 

For David Cohen 

I. Comcast and your cable company partners concluded the sale of this spectrum to 

Verizon Wireless just days before T-Mobile's arrangement with AT&T formally came to an end. 

Why not wait to see whether T-Mobile would pay more for the spectrum assets, which T-Mobile 

has suggested it would? Did Comcast not owe a fiduciary duty to your shareholders to entertain 

other potentially higher bids for the spectrum? 

2. Verizon Wireless and Comcast, and your cable partners, have agreed to establish 

ajoint venture to develop technologies to integrate wireless and wireline services - creating 

seamless Internet connections between consumers' TVs and their cell phones or iPads. We must 

be especially cautious here because this means that top executives from both of your companies 

- competitors for pay TV customers - will meet regularly and work very closely together and in 

ways that could compromise your current or future competition. Investment in technology is 

generally good for consumers, but the concern here is that the joint venture will develop 

proprietary technology, and limit its content to platforms meeting standards set to that 

proprietary technology. Or, it might eliminate your incentives to compete against each other for 

future products and services. Can you give us any assurance that this won't happen with the 

joint venture? 

3. As you pointed out in your written testimony, Comcast's deal with Verizon Wireless 

allows you to be a reseller ofVerizon Wireless service beginning in 2016. Why wait until then 

- why doesn't the deal allow Comcast to be a reseller right now? 

4. One thing that competitive wireless companies require is what is known as 

"special access" or "backhaul" - access over wired phone lines from cell phone tower to long 

distance phone and Internet networks. For years, the competitive wireless companies have 

complained about what they see as very high prices for special access from incumbent phone 

companies such as Verizon and AT&T. One way around the incumbents is to contract with the 

cable companies for special access. 

Will Comcast continue to provide backhaul competition to Verizon for competitive cell 

phone carriers at reasonable and nondiscriminatory terms, or will this deal change your 

incentives so that you will no longer wish to compete with Verizon? 

5. Do the commercial agreements between Comcast and Verizon Wireless have any 

term or time limit? If so, what is that term? 

6. It has been reported in the media, and was alluded to at the hearing, that the 

commercial agreements between Verizon Wireless and Comcast were exclusive. In what sense 

are the agreements exclusive? What does the exclusivity cover? 
151 

7. Under the commercial agreements, what is the amount of commission payment 

that Comcast will receive from Verizon Wireless for selling Comcast services? Can this amount 

change during the life of the agreements? 

8. (a) At the hearing, you testified that Comcast did not begin to study and do 

research on deploying the SpectrumCo spectrum you acquired with your cable company partners 

in 2006 until after you acquired that spectrum. In fact, you testified, that "at the time we bought 

the spectrum we had every intention of at least exploring whether we had a viable wireless 

business." Why was this - why wasn't this issue explored before Comcast and your SpectrumCo 

partners acquired the spectrum? Shouldn't Corncast have taken these steps prior to acquiring 

the spectrum, ifit was serious about deploying the spectrum? 

(b) Does your answer that you had "every intention of l!! least exploring whether we 

had a viable wireless business" (emphasis added) when SpectrumCo bought the spectrum 

indicate that you recognized at that time there was a possibility that Comcast would never be 

able to economically launch a wireless business with this spectrum? 

9. Our subcommittee has heard concerns that the commercial agreements between 

Verizon Wireless and the cable companies could contain provisions allowing the parties to 

jointly negotiate for programming content. The concern is that, if so, the parties to these deals 

could obtain lower rates for content because of volume discounts that competitive pay TV 

services would not be able to obtain. Do the commercial agreements contain any provisions 

allowing Verizon Wireless and the cable companies to jointly negotiate for programming? Ifso, 

won't this disadvantage competitive pay TV providers? 

10. (a) In an FCC filing made on September 30, 2009, Comcast described a "wireless 

marketplace that has come to be dominated by two firms, AT&T and Verizon."l Comcast also 

noted that "AT&T and Verizon not only have substantial 'first mover' advantages, but they have 

amassed prime spectrum in the 700 MHz and 800 MHz bands that, due to propagation 

characteristics, creates a significant economic advantage in the construction and deployment of 

broadband wireless networks." Does the sale of the A WS spectrum to one ofthese two firms not 

exacerbate the competitive concerns you described in 2009? 

(b) In your September 30, 2009 FCC filing, Comcast further wrote that, "Scarcity of 

spectrum acutely affects the ability of companies to enter the wireless market and compete with 

incumbent carriers. AT&T and Verizon in particular have over the years amassed substantial 

amounts of spectrum, much of it in the lower bands" which you identify as spectrum below 3 

GHz - "that, as explained below, are in many ways the best suited for wireless broadband 

services." You also noted that these factors "create significant challenges for new entrants and 

threaten to diminish wireless investment and innovation," adding that "The Commission should 

examine these issues and consider appropriate policies to address them." By your own logic, 

doesn't this transaction which further concentrates valuable commercial spectrum in the hands 

1 Comments of Comcast Corporation, Fostering Innovation and Investment in the Wireless Communications Market 

and A National Broadband Plan for Our Future, GN Docket Nos. 09-157, 09-51 (filed September 30, 2009), available 

at: http://apps.fcc.gov/ecfs/comment/view ?id;6015 191537 
152 

of one of these two dominant firms - creates "significant challenges for new entrants" and 

further "threaten to diminish wireless investment and innovation?" 

11. One of the key ways of increasing capacity on wireless networks is to offload 

demand onto WiFi networks, such as those the cable companies and Verizon have built into 

consumers' homes. Will you commit to offer WiFi offload on an open, non-discriminatory 

basis to other carriers not parties to the commercial agreements? If not, why not? 

12. Do you have any response to the suggestions of Prof. Wu, Mr. Kelsey and Berry 

given at the hearing as to possible conditions the Justice Department or FCC ought to place on 

your deals with the cable companies, should the deals be approved? 
153 

QUESTIONS FOR JOEL KELSEY SUBMITTED BY SENATOR HERB KOHL

Sen. Kohl's Follow-Up Questions for the Record for Hearing on 

"The Verizon/Cable Deals: Harmless Collaboration or A Threat to Competition and 

Consumers?" 

For Joel Kelsey 

1. One thing that competitive wireless companies require is what is known as 

"special access" or "backhaul" - access over wired phone lines from cell phone towers to long 

distance phone and Internet networks. For years, the competitive wireless companies have 

complained about what they see as very high prices for special access from incumbent phone 

companies such as Verizon and AT&T. One way around the incumbents is to contract with the 

cable companies for special access. Do you have any concerns that this deal will change the 

incentives of cable companies to provide special access? 

2. In his March 8 Politico interview, David Cohen said that one of the reasons 

Comcast decided not to enter the wireless business was the presence of insurmountable hurdles 

like roaming - which he described as "next to impossible" to secure. Ifroaming is next to 

impossible for a company like Comcast to secure, what does that say about the ability of smaller 

carriers to effectively compete with Verizon? 

3. One very interesting facet of this deal is its timing. Verizon's deals with the cable 

companies were announced last December, just days before AT&T and T-Mobile announced that 

they abandoned their proposed merger. Some industry observers suspect that these deals were 

deliberately reached at a time when T-Mobile was not free to bid on this spectrum. T-Mobile's 

FCC filing states "it is likely no coincidence that Verizon Wireless signed this deal while the 

AT&T/T-Mobile transaction was still pending, so that T-Mobile was unable to compete to 

purchase this spectrum." What is your view? Do you believe that the timing of the deal had 

anything to do with Verizon Wireless's desire to keep this spectrum out of the hands of 

competitors such as T-Mobile? 

4. The FCC has a test for evaluating acquisitions of spectrum, what they call the 

"spectrum screen." Verizon Wireless points out that this deal falls under the FCC's thresholds 

in 121 of the 136 markets in the transaction. Should that settle the question for those markets? 

Do you believe the spectrum screen - first developed in 2001 - is adequate to evaluate spectrum 

acquisitions today? Why or why not? 

5. Verizon and its cable partners have agreed to establish ajoint venture to develop 

technologies to integrate wireless and wireline services - creating seamless Internet connections 

between consumers' TVs and their cell phones or iPads. This has raised concerns because this 

means that top executives from the companies to these deals - competitors for pay TV customers 

- will meet regularly and work very closely together and in ways that could compromise their 

current or future competition. Investment in technology is generally good for consumers, but the 

concern here is that the joint venture will develop proprietary technology, and limit its content to 

platforms meeting standards set to that proprietary technology. Or, it might eliminate the parties 

incentives to compete against each other for future products and services. What's your view? 

Are you worried about the joint venture being used to disadvantage competitors? 
154 

QUESTIONS FOR RANDAL MILCH SUBMITTED BY SENATOR HERB KOHL

Sen. Kohl's Follow-Up Questions for the Record for Hearing on 

"The Verizon/Cable Deals: Harmless Collaboration or A Threat to Competition and 

Consumers?" 

For Randv Milch 

I. One very interesting facet of this deal is its timing. Verizon's deals with the cable 

companies were announced last December,just days before AT&T and T-Mobile announced that 

they abandoned their proposed merger. Your competitors suspect that these deals were 

deliberately reached at a time when T-Mobile was not free to bid on this spectrum. T-Mobile's 

FCC filing states "it is likely no coincidence that Verizon Wireless signed this deal while the 

AT &T/T-Mobile transaction was still pending, so that T -Mobile was unable to compete to 

purchase this spectrum." What is your response? Did the timing of the deal have anything to do 

with your desire to keep this spectrum out of the hands ofT-Mobile? 

2. Verizon Wireless and its cable partners have agreed to establish ajoint venture to 

develop technologies to integrate wireless and wireline services - creating seamless Internet 

connections between consumers' TVs and their cell phones or iPads. We must be especially 

cautious here because this means that top executives from both of your companies - competitors 

for pay TV customers - will meet regularly and work very closely together and in ways that 

could compromise your current or future competition. Investment in technology is generally 

good for consumers, but the concern here is that the joint venture will develop proprietary 

technology, and limit its content to platforms meeting standards set to that proprietary 

technology. Or, it might eliminate your incentives to compete against each other for future 

products and services. Can you give us any assuranee that this won't happen with the joint 

venture? 

3. Verizon most directly competes with the cable companies through its FiOS 

product, but FiOS is only sold in 14% ofthe cable companies' footprint, so why not just carve 

out the FiOS territory from the joint marketing agreements? Would you agree to do that as a 

condition of the Justice Department permitting this deal? 

4. We understand that FiOS now accounts for over 60% ofVerizon's consumer 

wireline revenues. Yet Verizon decided in November 2009 to halt expanding FiOS into any 

new markets. Given the growth in the importance ofFiOS to Verizon overall, wouldn't we 

expect Verizon to reconsider this decision in the future, if not for the joint marketing agreement? 

Put another way, doesn't your wireless subsidiary's agreement with the cable companies 

substantially reduce the chance you will ever decide to build FiOS in new areas? 

5. We have heard reports that Verizon is "slow walking" the build out ofFiOS in its 

local franchise areas. Will you commit today to fully complete your buildout in an expeditious 

manner in areas you have already obtained franchise authority? 

6. Do the commercial agreements between the cable companies and Verizon 

Wireless have any term or time limit? If so, what is that term? 
155 

7. It has been reported in the media, and was alluded to at the hearing, that the 

commercial agreements between Verizon Wireless and the cable companies were exclusive. In 

what sense are the agreements exclusive? What does the exclusivity cover? 

8. Under the commercial agreements, what is the amount of commission payment 

that Verizon Wireless will receive from the cable companies for selling Verizon Wireless 

services? Can this amount change during the life of the agreements? 

9. At one point during the hearing, you noted that the deals we are examining are 

with Verizon Wireless, not Verizon, implying that Verizon's incentive to compete will be 

unaffected by these deals. But Verizon owns 55% of Verizon Wireless, Verizon appoints five 

members of Verizon Wireless's nine-member board of directors, including Verizon Wireless's 

Chairman and CEO, and its Executive Vice President and Chief Financial Officer, and Executive 

Vice President and Chief Marketing Officer. I also understand that Verizon Wireless links longterm compensation to performance of its parent company, Verizon. It has also been reported that 

Verizon Wireless and Verizon share a single Political Action Committee, the so-called "Verizon 

lVerizon Wireless Good Government Club." And Verizon Wireless accounted for 63% of 

Verizon's aggregate revenues in 2011. Under these circumstances, you don't contest the fact 

that Verizon and Verizon Wireless are distinct companies whose interest are not, at the very 

least, intertwined and closely aligned with one another, do you? 

10. Under current FCC rules, The SpectrumCo spectrum licenses that Verizon 

Wireless seeks to acquire have a partial build out requirement of 15 years, with a complete build 

out required in 25 years, from date of issuance of the spectrum licenses. Thus a complete build 

out won't even be required for this spectrum until the latter half of the 2020s. Your competitors 

have accused Verizon Wireless of seeking to "warehouse" this spectrum in order to keep it away 

from Verizon Wireless's competitors. You testified at the hearing that Verizon Wireless needs 

this spectrum today to meet the burgeoning demand for spectrum caused by consumers' use of 

smartphones. In light of this, would you agree to build out this spectrum much sooner, say in 5 

years? If your answer is no, why not? 

11. (a) In response to concerns expressed at the hearing about consumers' privacy 

and possible sharing of consumer information between Verizon Wireless and the cable 

companies, you stated that Verizon Wireless would keep consumers' bills separate even if 

Verizon Wireless sold a cable service (and vice versa). But if the bills are separate, where is the 

convenience in a "quad play" (i.e., video, internet access, land line phone, and wireless service)? 

Wouldn't consumers paying for all of these services on one bill be a key part of the consumer 

convenience of a quad play? 

(b) In a December 7, 2011 investor call with UBS Securities, Verizon CEO Lowell 

McAdam stated that consumers don't want separate bills for each service because it "drives them 

crazy." He added that "getting to one bill and having account-level pricing is the right way to 

go." So is it possible that the idea that consumers get separate bills from Verizon Wireless and 

the cable companies for services they cross-sell as you stated in your testimony change in the 

future? 
156 

12. You testified that consumers prefer a quad play and that consumers like to buy 

wireless together with the other services. Could you provide marketing research or other 

studies that support this? 

13. (a) In your March 22, 2012 letter to Senator Lee and me correcting your 

testimony at the hearing that Verizon Wireless does not sell FiOS in its stores today, you stated 

that "in a number ofVerizon Wireless stores, Verizon Telecom has placed FiOS kiosks, which 

are manned by representatives ofVerizon's wireline business." Can you be more specific - how 

many Verizon Wireless stores have these FiOS kiosks, and what percentage of the FiOS 

footprint do these stores represent? 

(b) In your letter, you state that "[ n]o decision has been made as to maintaining these 

kiosks once the cross-marketing agreements are implemented in the FiOS footprint." If in fact 

these kiosks are withdrawn, won't this represent a real example of a loss of competition between 

Verizon and the cable companies? Why won't you commit to keeping these kiosks in place? 

(c) In defending this deal, you have pointed to the consumer benefit of having 

wireline representatives in your wireless stores. If they provide such a consumer benefit, why 

did you not have any Verizon wireline representatives in your Verizon wireless stores, at the 

very least ",ithin your FIOS footprint? 

14. How will your commercial agreements with the cable companies affect your 

pricing, marketing or promotion ofFiOS in areas where you compete with the cable companies 

that are parties to these agreements? If your answer is that there will be no such effect, how do 

we know that will be the case? Are you willing to make a commitment to the DOl on this point? 

15. (a) Beyond its FiOS service, Verizon also competes with the cable companies for 

Internet service via DSL using traditional copper landline phone wires. Will the commercial 

agreements affect in any respect this competition, and the pricing, marketing, or promotion of 

DSL in the areas where you compete with the cable companies that are parties to these 

agreements? 

(b) Some analysts and industry observers believe that Verizon will abandon or sell off 

its DSL services in the future. What are you plans for your DSL service in the future? Will 

you continue to offer it to the same extent you do now? 

16. Our subcommittee has heard concerns that the commercial agreements between 

Verizon Wireless and the cable companies could contain provisions allowing the parties to 

jointly negotiate for programming content, or might lead to such agreements in the future. The 

concern is that, if so, the parties to these deals could obtain lower rates for content because of 

volume discounts that competitive pay TV services would not be able to obtain. Do the 

commercial agreements contain any provisions allowing Verizon Wireless and the cable 

companies to jointly negotiate for programming? If so, won't this disadvantage competitive pay 

TV providers? If not, does the agreement allow for such joint negotiations, or do you anticipate 

such negotiations to occur in the future? 

17. One of the key ways of increasing capacity on wireless networks is to offload 

demand onto WiFi networks, such as those the cable companies and Verizon have built into 
157 

consumers' homes. Will you commit to offer WiFi offload on an open, non-discriminatory 

basis to other carriers not parties to the commercial agreements? If not, why not? 

18. Do you have any response to the suggestions of Prof. Wu, and Mr. Kelsey and 

Berry given at the hearing as to possible conditions the Justice Department or FCC ought to 

place on your deals with the cable companies, should the deals be approved? 
158 

QUESTIONS FOR CHARLES RULE SUBMITTED BY SENATOR HERB KOHL

Sen. Kohl's Follow-Up Questions for the Record for Hearing on 

"The Verizon/Cable Deals: Harmless Collaboration or A Threat to Competition and 

Consumers?" 

For Charles (Rick) Rule 

I. You state in your written testimony that, until Verizon deployed FiOS in your 

neighborhood, you were "the victim of my local wireline cable monopoly .... I know firsthand 

that wireline broadband competition is highly preferred to monopoly." Can you explain what 

you mean by this? Why is the competition from providers such as FiOS so important? 

2. As a former Justice Department antitrust enforcer, does it bother you that Verizon 

Wireless stores will sell Comcast products that compete with the products ofVerizon, the parent 

ofVerizon Wireless? Isn't this a little like Ford dealers being in Chrysler showrooms selling 

Fords, and Chrysler receiving a commission for every Ford sold? 

3. It has been widely reported in the press that the commercial agreements have no fixed 

term. The joint FTC/Justice Department Competitor Collaboration Guidelines state that "the 

Agencies use ten years as a term indicating sufficient permanence to justify treatment of a 

competitor collaboration as analogous to a merger." If these agreements indeed have no fixed 

term, what are the implications for the antitrust analysis of these agreements? 
159 

QUESTIONS FOR TIMOTHY WU SUBMITTED BY SENATOR HERB KOHL

Sen. Kohl's Follow-Up Questions for the Record for Hearing on 

"The Verizon/Cable Deals: Harmless Collaboration or A Threat to Competition and 

Consumers?" 

For Tim Wu 

I. At the hearing, Randy Milch ofVerizon argued that the commercial agreements 

would not mean that Verizon would lessen its competition with the cable companies with respect 

to FiOS, because all Verizon would realize if the cable companies sold their services was a 

portion of a one-time commission in the hundreds of dollars. Mr. Milch argued that he would 

not sacrifice a potential revenue stream in the thousands of dollars per customer for such a 

relatively small one-time payment. What is your response to this argument? 

2. It has been widely reported in the press that the commercial agreements have no 

fixed term. The joint FTC/Justice Department Competitor Collaboration Guidelines state that 

"the Agencies use ten years as a term indicating sufficient permanence to justify treatment of a 

competitor collaboration as analogous to a merger." If these agreements indeed have no fixed 

term, what are the implications for the antitrust analysis of these agreements? 
160 

QUESTIONS FOR STEVEN BERRY SUBMITTED BY SENATOR MICHAEL S. LEE

Questions for the Record for Verizon-Spectrum Co. Hearing 

Wednesday, March 21, 2012 (2 p.m.) 

Steven K. Berry-President & CEO (Rural Cellular Association) 

I. In your testimony, you state that Verizon does not need spectrum but rather "holds as 

much as 44 MHz of unused spectrum in many markets." 

• Could you comment on the nature of the markets where you believe Verizon 

Wireless has an excess supply of spectrum, whether these are limited to rural 

areas, and if so, what you believe should be done to protect against unused 

spectrum while allowing Verizon Wireless to obtain spectrum where it needs it? 

2. Testimony at the hearing strongly suggested that many, ifnot most, potential buyers of 

the spectrum at issue in this transaction were approached by the cable companies. 

• Do you dispute that to be the case, and if not, how would that affect your analysis 

with respect to the government's intervention in the spectrum transfer? 

3. In your written testimony, you stated that "[tJhis transaction will only increase Verizon's 

dominance over the roaming market by eliminating four potential roaming partners." 

Other testimony at the hearing suggested that the cable companies had at some point prior 

to this transaction definitely determined not to enter into the wireless market using this 

spectrum. 

• Is it your view that this transaction is the cause of the cable companies not 

entering into the wireless market? 

• Do you believe the cable companies would use this spectrum to enter into the 

wireless market if this transaction were not allowed? 
161 

QUESTIONS FOR DAVID COHEN SUBMITTED BY SENATOR MICHAEL S. LEE

Questions for the Record for Verizon-Spectrum Co. Hearing 

Wednesday, March 21, 2012 (2 p.m.) 

David L. Cohen-Executive Vice President (Com cast) 

I. I understand that Verizon Wireless purchased the spectrum at issue in these agreements 

for a total of about $3.9 billion. Some, including Mr. Berry who was at the hearing, have 

suggested that the licenses are really worth significantly more and that the cable 

companies could have commanded a much higher price for the spectrum from other 

carriers. Although there was discussion of negotiations and incentives at the hearing, 

there still seems to be some confusion about this issue. 

• Can you please explain what Comcast did to make certain that it got the best deal 

possible for its spectrum sale? 

2. The primary consideration of our antitrust laws is consumer welfare. Accordingly, in 

considering the effects of a transaction on competition, we must give appropriate weight 

to resulting efficiencies. At the hearing, there was some discussion of the efficiencies 

resulting from having a quadruple play available. 

• Can you please describe any evidence or marketing research information Comcast 

has indicating that consumers do in fact want a quad play? 

3. Some have expressed concerns about potential anticompetitive effects of the agreement 

between Verizon and the cable companies to invest in a new joint operating entity. 

Critics speculate that this agreement contains exclusive arrangements with respect to 

backhaul and Wi-Fi offloading, or that the companies will use the new product to gain an 

undue advantage and force others out of the market. 

• Could you comment on the joint operating entity-specifically, what is included 

in that arrangemcnt, what types of products you anticipate might be developed, 

whether those technologies will be licensed to third parties, and why your 

company felt it important to enter into this arrangement? 

4. At the hearing, Senator Franken asked Randall Milch: "Will you commit to opening up 

the technology and intellectual property that your companies create to your competitors 

so that they can obtain the technology at fair reasonable and non-discriminatory rates?" 

• On behalf of Comcast, what is your reaction to this request? 
162 

If Comcast and Verizon are forced to license or sell new technologies, how will 

this reduce the incentives that Comcast has to invest capital in this research and 

development joint operating agreement? 

2 
163 

QUESTIONS FOR JOEL KELSEY SUBMITTED BY SENATOR MICHAEL S. LEE

Questions for the Record for Verizon-Spectrum Co. Hearing 

Wednesday, March 21, 2012 (2 p.m.) 

Joel Kelsey-Policy Advisor (Free Press) 

1. In your filing before the FCC, you assert that the current spectrum screen is outdated and 

should be changed to take account of the monetary value of spectrum. When AT&T 

sought to merge with T-Mobile and argued that the spectrum screens should be changed, 

you opposed making any changes to the screens and asserted that seeking a change to the 

screens in the middle ofa transaction was "self-serving." 

• Do you now think it proper for the FCC to change its spectrum screens during the 

middle of a transaction, and if so, how do you account for your changed position? 

2. I have concerns about potential error costs involved in government intervention. For 

example, ifthe FCC were to mandate an approach for Verizon Wireless such as cellsplitting and it turns out that the agency is mistaken and cell-splitting is more costly than 

spectrum to accomplish the same objective, that the government will have imposed 

unnecessary costs. 

• What is your view of such potential error costs and the role they should play in 

our analysis? 

3. Smart phones, tablets, and similar products have drastically increased the demand for 

spectrum in the past few years. Some estimate that global mobile traffic will increase 26-

fold between 2010 and 2015, and that this year alone over 500 million smartphones and 

100 million tablets could be sold worldwide. 

• In light of this clear trend towards exponential use of data, do you dispute that 

Verizon Wireless does not need additional spectrum, would not put it to use, or at 

the very least would not be exercising proper business judgment to obtain as 

much spectrum as possible? 

4. At the hearing, you stated that "the cable companies ... have shown that they really want 

to be involved in the wireless market ... [however] there are lots of ways for them to do 

that which isn't harmful to consumers." I understand that the mobile virtual network 

operator ("MVNO") provisions of the agreements between the cable companies and 

Verizon Wireless will allow the cable companies to potentially create their own wireless 

offerings in the near future. 
164 

• What is your view of the MYNO and how does its inclusion in the agreements 

affect your analysis of those agreements? 

2 
165 

QUESTIONS FOR RANDAL MILCH SUBMITTED BY SENATOR MICHAEL S. LEE

Questions for the Record for Verizon-Spectrum Co. Hearing 

Wednesday, March 21, 2012 (2 p.m.) 

Randal S. Milch, Verizon <Executive Vice President & General Counsel) 

I. At the hearing there appeared to remain some degree of confusion about Verizon 

Communication's incentives to continue marketing FiOS in light ofVerizon Wireless's 

agreements with the cable companies. 

• Could you please explain the incentives Verizon Communications has to market 

FiOS and whether the portion of a commission Verizon Communications would 

receive from the sale of cable contract would affect those incentives? 

• In what ways, if any, will this agreement increase FiOS's ability to compete with 

the cable companies? 

2. At the hearing, I understand Professor Wu to have suggested that Verizon Wireless's 

agreements with the cable companies might decrease Verizon Wireless's incentives to 

compete with cable for high speed internet offerings. 

• Is Verizon's Wireless's internet offering a viable competitor to wire line internet? 

• How will your agreements with Comcast impact your incentives with respect to 

your internet service offerings? 

3. Some have expressed concerns that Verizon Wireless does not need additional spectrum. 

These arguments include assertions that because Verizon Wireless is efficient with its 

spectrum, currently has spectrum it is not using, and can make its current spectrum even 

more efficient by means of technologies such as cell-splitting, the company is in fact well 

positioned on spectrum for the foreseeable future. Mr. Berry, who was at the hearing, has 

stated that Verizon holds as much as 44 MHz of unused spectrum in many markets and 

would hold up to 72 MHz of unused spectrum in those markets after this transaction. 

• What is your response to these claims, and what is Verizon Wireless doing to 

ensure that excess spectrum is put to good use in areas where it has a surplus? 

4. At the hearing, in regards to the research and development joint operating entity, Senator 

Franken asked, "Will you commit to opening up the technology and intellectual property 

that your companies create to your competitors so that they can obtain the technology at 

fair reasonable and non-discriminatory rates?" 
166 

• If the members of the joint operating entity were forced to license and sell any 

newly developed products or technologies, how would this change your decision 

to invest capital in the research and development joint operating entity? 

5. At the hearing, there was some discussion about the Federal Communications 

Commission's ("FCC") spectrum screen and whether such a screen could or should be 

changed while reviewing a specific transaction and whether there is any precedent for 

such a change. 

• What is your view of FCC precedent for changing spectrum screens during a 

transaction and the propriety of such a change? 

6. At the hearing, you explained that if the spectrum screens were recalculated, it would 

decrease Verizon's share of spectrum holdings because the size of the denominator would 

increase as new spectrum is inc! uded in the screens. 

• Can you please elaborate on this answer? 

• Do you believe the spectrum screens are fair and proper as presently calculated? 

2 
167 

QUESTIONS FOR CHARLES RULE SUBMITTED BY SENATOR MICHAEL S. LEE

Questions for the Record for Verizon-Spectrum Co. Hearing 

Wednesday, March 21,2012 (2 p.m.) 

Charles F. (Rick) Rule-Managing Partner (Cadwalader. Wickersham & Taft LLP) 

1. Critics have argued that Verizon Wireless is boarding spectrum to foreclose competitors 

from a necessary input. It is my understanding that the FCC spectrum screen is intended 

to ensure that competitors are not excluded from spectrum necessary to compete 

vigorously. Under these screens, the FCC gives additional scrutiny to spectrum 

acquisitions when an acquisition will push a company beyond certain thresholds-about 

145 MHz or 113 of available spectrum in an area. Verizon Wireless's spectrum 

acquisition does not implicate this spectrum screen on a national level and implicates the 

screen on a local level in less than 2 percent of counties. 

• In your view, is it proper to apply antitrust theories of foreclosure to Verizon 

Wireless when the FCC already imposes a more demanding regulatory 

requirement concerning spectrum? Is the fact that this deal passes muster under 

the FCC's screens fatal to any attempt to apply such antitrust theories to this deal? 

2. In my view, antitrust policy and enforcement is often similar to other types of 

government regulation in its costs and intrusion on private enterprise. It was suggested at 

the hearing that a perceived lack of competition in an industry could lead to increased 

government regulation of that industry beyond antitrust enforcement. At the same time, 

where competition is robust and market forces operation properly, there is typically little 

need for burdensome and costly government regulations. 

• Could you comment on the relationship between antitrust enforcement and other 

types of government regulation, with particular reference to your view of the 

competitive state ofthe wireless and cable industries? 

3. At the hearing, there was some disagreement about the efficiencies associated with the 

option to bundle goods (non-mandatory bundling). Mr. Wu stated that "the consumer is 

served by destructive innovation, not by bundling." 

• Can you explain how antitrust laws generally treat the option to bundle? 

• Will you also comment on the benefits, if any, that consumers enjoy from the 

option to bundle? 
168 

QUESTIONS FOR TIMOTHY WU SUBMITTED BY SENATOR MICHAEL S. LEE

Questions for the Record for Verizon-Spectrum Co. Hearing 

Wednesday, March 21,2012 (2 p.m.) 

Timothy Wu-Professor of Law (Columbia University) 

1. In your testimony, you have stated that this transaction "forces us to confront exactly the 

same problem" that was faced in the AT&T/T-Mobile transaction. However, the 

spectrum transaction at issue here seems fundamentally different to me as no customers, 

facilities, or other assets beyond spectrum are being transferred, and the spectrum being 

transferred was not previously in use. These differences seem significant because the 

transaction does not eliminate a viable competitor and also entails efficiencies such as 

putting to use spectrum that was not previously being put to any use. 

• How do you account for these differences and do you dispute that this transaction 

entails what antitrust law generally views as an important efficiency-that is, 

moving assets from a low value use to a high value use? 

2. The primary consideration of our antitrust laws is consumer welfare, and several factors 

in the wireless market indicate that consumers are benefitting from robust competition. 

Wireless prices are falling, consumers have competitive choices with about a third of all 

U.S. consumers having switched wireless carriers at some point, vibrant innovation is 

occurring with new devices and services being announced on a regular basis, and 

companies are investing heavily in 4G and 4G L TE deployment. 

• Much of your testimony depends on the premise that the wireless industry is not 

in fact competitive. How do you reconcile this view with the benefits to 

consumers we are seeing in this industry? 

3. At the hearing, I understand you to have suggested that that the agreements might 

diminish competition between Verizon Wireless's 4G internet service and the cable 

companies. 

• Can you elaborate on how this deal affects competition between the wireless and 

wire-line internet products? 

• Do you believe that wireless and wire-line internet services are substitutes? 

4. During the hearing, you said that "the consumer is served by destructive innovation, not 

by bundling." 

• Can you please elaborate on this point? 
169 

• In your view, under what circumstances is bundling a good thing for consumers? 

• Why is the bundling in this circumstance not welfare enhancing since consumers 

still have the choice not to bundle their purchase? 

2 
170 

QUESTIONS FOR DAVID COHEN SUBMITTED BY SENATOR CHARLES E. SCHUMER

Questions for the Record from Senator Charles E. Schumer 

Hearing of the Senate Judiciary Committee, 

Subcommittee on Antitrust, Competition Policy, and Consumer Rights: 

"The Verizon/Cable Deals: Harmless Collaboration or a Threat to Competition and Consumers?" 

March 21, 2012 

Question for David Cohen, EVP, Comcast Corporation 

). I understand that, under the terms of Joint Marketing Agreements, Comcast, Time Warner, Cox, 

Bright House Networks, and Verizon Wireless will now each be able to offer the quadruple play 

of video programming, broadband, voice, and mobile wireless services. I have heard concerns 

that this bundling of services will reduce the value of a competing company's video and 

broadband product because it will be more expensive for competitors to get access to must-have 

programming, resulting in consumers suffering through higher costs. Can you respond to these 

concerns? 

2. The 1996 Telecommunications Act reduced regulation based on the assumption that crossplatform competition would drive innovation, lower prices, and new services to benefit 

consumers. Just two years ago, Verizon touted the importance of the "competitive rivalry 

between cable companies and telcos" resulting in benefits to consumers of "better broadband 

services and lower prices." 

a. What is your view of that rivalry now? 

b. How do the joint marketing agreements affect that view? 
171 

QUESTIONS FOR RANDAL MILCH SUBMITTED BY SENATOR CHARLES E. SCHUMER

Questions for the Record from Senator Charles E. Schumer 

Hearing of the Senate Judiciary Committee, 

Subcommittee on Antitrust, Competition Policy, and Consumer Rights: 

"The Verizon/Cable Deals: Harmless Collaboration or a Threat to Competition and Consumers?" 

March 21, 2012 

Questions for Randal Milch, EVP & General Counsel, Verizon Communications, Inc. 

FiOS is the most advanccd broadband delivery platfonn, making Verizon the only major U.S. 

telecommunications company to draw fiber all the way to homes, and the only one to offer broadband 

speeds approaching those available in Japan and South Korea. Verizon has touted the importance of 

broadband deployment for job creation, economic development, and improvements in education, health 

care, and public safety. 

I have been a strong supporter ofFiOS's build out of its fiber-optic network in New York, and believe that 

Verizon should be applauded for its great work in bringing both jobs to communications workers and 

meaningful competition to cable customers in many of the major population centers of the state. 

However, I am interested in how this deal will affect FiOS in New York. Specifically, 

I. I understand that under the tenns of the commercial agreements, Verizon Wireless stores can sell 

Comcast or Time Warner cable services including in markets where FiOS is offered. 

a. How does this agreement affect Verizon's marketing strategy for FiOS? 

b. Can FiOS continue to increase its market share if Verizon Wireless stores are marketing 

services that compete directly against FiOS? 

c. How do the Joint Marketing Agreements affect Verizon's incentives to build out its fiberoptic 

pipe to compete? 

2. The 1996 Telecommunications Act reduced regulation based on the assumption that crossplatfonn competition would drive innovation, lower prices, and new services to benefit 

consumers. Just two years ago, Verizon touted the importance of the "competitive rivalry 

between cable companies and telcos" resulting in benefits to consumers of "better broadband 

services and lower prices." 

a. What is your view of that rivalry now? 

b. How do the joint marketing agreements affect that view? 

3. In recent years Verizon has sold off many of its rural lines, first to FairPoint in Maine, New 

Hampshire, and Vennont, and later to Frontier in 14 states. Does this deal affect Verizon's plans 

for its wireline business in the future? 

4. After this deal was announced, I understand that Verizon announced the end of its relationship 

with DirecTV. 

a. Was this announcement related to the spectrum deal? 

b. Do the Joint Marketing Agreements contain exclusivity provisions that require the parties to 

tenninate similar agreements with other companies? 
172 

c. Would exclusivity provisions be consistent with vibrant competition for telecommunications 

or satellite firms? 
173 

RESPONSES BY STEVEN BERRY TO QUESTIONS FOR THE RECORD

"The Verizon/Cable Deals: Harmlelis Collaboration or a Threat to Competition and 

Consumers?" 

Questions for the Record Responses of Steven K. Berry 

President and Chief Executive Officer 

RCA-The Competitive Carriers Association 

Before the 

Senate Judiciary Committee 

Subcommittee on Antitrust, Competition Policy and Consumer Rights 

April 19, 2012 
174 

Questions for the Record from Senator Kohl 

1. Before assuming your position at RCA, you served as head of governmental 

affair.~ at NCTA, the cable industry's trade association. While you were there, and 

since then, wasn't it a strategy of the cable industry during the last decade to 

vigorously compete with phone companies in offering wireline phone and internet 

connections to consumers? Do you worry about this alliance between cable and one 

of the two largest phone companies - Verizon - as harming that competitive battle? 

During the time that I was fortunate enough to work for the cable industry, a 

major aspect of industry strategy was competing with the phonc companies in digital 

phone service and high-spccd intcrnet, with wireless service emerging as the next 

competitor. In fact, during that time we had a slogan: "Competition Works. Consumers 

Win]" 

Thc competition between cable and the phone companies truly provided 

significant benefits to consumers. Through digital phone service, cable was able to offer 

a full suitc of features, ineluding unlimited calling plans, with studies finding that 

consumers and small businesses could save $100 billion over five years as a result of that 

voice competition. In providing competition for high-speed internct service, cable 

offered connections with significantly faster speeds than the digital subscriber line (DSL) 

service providcd by the phone companies. In addition to giving consumers a choicc of 

their service provider, thcse superior speeds for internet access through cable drove the 

phone companies to increase their own internet offerings and begin to deploy fiber, like 

Verizon's FiOS offering. 

Cable looked forward to competing in providing wireless service. With the 

growth of mobile services, integration of a wireless platform into the existing "triple 

play" would allow cable to enter a new market and provide a new alternative for 

consumers - and again, consumers would win. 

I have serious reservations about the degradation of competition in these markets. 

If competition works and consumers win, then it follows that when competition is 

eliminated, consumers lose. 

As I stated during my testimony, these deals amount to a non-compete agreement. 

If approved, Verizon would not need to worry about new competitive entry from the 

cable companies encroaching on its duopolistic control over the wireless industry, and in 

return Verizon will resell cable wireline service instead oflooking at ways to expand its 

own fiber offering. 

These deals not only wipe out the threat of competition from the cable providers, 

but also eliminate four potential partners, and providers of critical competitive inputs, for 

all other competitive wireless carriers, such as RCA members. 

2. One thing that competitive wireless companies require is what is known 

as "special access" or "backhaul" - access over wired phone lines from cell phone 

towers to long distance phone and Internet networks. For years, the competitive 

wireles.~ companies have complained about what they see as very high prices for special 

access from incumbent phone companies such as Verizon and AT&T. One way 
175 

around the incumbents is to contract with the cable companies for special access. Do 

you have any concerns that this deal will change the incentives of cable companies to 

provide special access? 

The Verizon-cable company deals will reduce the number of back haul partners, 

thereby increasing the artificially high rates that competitive carriers pay to get access to 

special access facilities. Because cell towers need to be connected to a network, wireless 

carriers are dependent on "backhauling" traffic through wired or wireless connections. 

Oftentimes these connections are made through "special access" services provided by the 

ILEC phone companies, who, as descendents of the Bell monopoly system, have sole 

control and access to a network of wires funded through decades of governmentsanctioned monopoly control. In much of the country, these facilities are controlled by 

Verizon or AT&T. In turn, wireless companies are often forced to pay the equivalent of 

monopoly rents to Vcrizon or AT&T while directly competing with their wireless 

affiliates. 

As I testified during the hearing, one bright spot in the backhaul market has been 

the emergence of cable increasingly providing backhaul services for wireless operators. 

This alternative option helped to provide competition in the provision ofbackhaul 

services, which may eventually force Verizon and AT&T to provide market-driven prices 

for special access. The increase in cable backhaul has also been lucrative for the cable 

companies, with Time Warner Cable noting an increase in backhaul revenues of nearly 

70% from 20 I 0 - 2011. Further, in purchasing backhaul services from one of the cable 

companies rather than Verizon or AT&T, a wireless competitor is not contributing to 

increased revenues of their direct competition. 

These deals create grave concerns regarding the incentives of the cable companies 

to provide special access to competitive wireless carriers. With a direct financial interest 

in the traffic carried on Verizon Wireless' network, at first as agents and later as mobile 

virtual network operators, the cable companies have strong incentives to favor the 

backhaul of Verizon Wireless traffic. In turn, this could raise the costs for backhaul for 

competitors. Additionally, as Verizon Wireless increasingly relies on the cable networks 

for its own backhaul, the incentives for Verizon to deploy fiber offerings to backhaul its 

own traffic are diminished, and overall capacity for backhaul is decreased. What has 

begun to develop as the choice of a second wired network for these services will be 

collapsed back into one monopoly choice for wireline services. 

With the deployment of 4G LTE mobile broadband networks by wireless 

operators and the continued explosion of demand for wireless service, the reliance on 

backhaul is increased. The sooner traffic can be moved from wireless to wireline, the 

more capacity can be provided to consumers while increasing the efficiency of spectrum 

holdings. That is why the development of new methods and processes to alleviate 

increased traffic arc critical to continued growth in the wireless industry. 

Cable companies are seen as partners to help increase wireless capacity not only 

through backhaul on wired networks, but as key partners for the provision of WiFi 

connections and WiFi offload of mobile traffic. Through exponential increases in the 

number of WiFi hotspots, including many provided by the cable companies, carriers can 

efficiently use a mix of their exclusively licensed spectrum as well as unlicensed 

spectrum. WiFi hotspot growth has been particularly focused on urban areas, where 

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exclusive spectrum holdings by wireless providers are most taxed for capacity based on 

customer density and where in-building penetration can be difficult for wirelcss 

frequencies above 10Hz; for example, Comcast has over 20,000 WiFi hotspots from 

Philadclphia to New York alone. 

As the incentives to provide competitivc access for backhaul through the cable 

companies' wircd networks are changed through these deals, so too are the incentives to 

offer equal access to WiFi services. Again, the cable companies may have incentives to 

favor Verizon Wireless traffic. The impacts on WiFi services are particularly alarming 

due to Time Warner Cable's recent move to patent a method for seamless roaming 

betwcen WiFi and cellular networks for smartphones and other devices. 

Wireless carriers need to offload traffic through backhaul and other means, and 

these deals raise serious concerns regarding economically feasible access to these 

services that must be addressed by regulators if approved. 

3. In his March 8 Politico interview, David Cohen said that one of the 

reasons Com cast decided not to enter the wireless business was the presence of 

insurmountable hurdles like roaming - which he described as "next to impossible" to 

secure. If roaming is next to impossible for a company like Com cast to secure, what 

does that say about the ability of smaller carriers to effectively compete with Ver;zon? 

Mr. Cohen is correct; achieving commercially reasonable roaming arrangements 

with Verizon and AT&T remains a challenge despite the FCC's Data Roaming Order. 

Reaching roaming agreements for the latest generation technologies at economically 

feasible and commercially reasonable rates and terms is critical to effectively competing 

with Verizon (as well as AT&T). In recent years, RCA has urged policymakers to 

support a commercially feasible voice and data roaming ccosystem within the industry, 

and, due to the fact that roaming remains "next to impossible" to secure, it should not 

come as a surprise that the FCC has not been able to certify the industry as "effectively 

competitive" for over two years. 

Problems in securing roaming agreements have grown as the industry has 

consolidated. In earlier, competitive timcs, no one carrier could provide nationwide 

service to its customers through its network alonc, and in turn carriers of all sizes were 

properly incented to negotiate and enter into roaming agreements. Through the wireless 

industry's march to consolidation, competition has decreased, and Verizon and AT&T 

have emerged as the only 30 roaming options for their given tcchnology paths for some 

carriers to provide nationwide service. As Mr. Cohen described, they are largely 

unwilling to discuss 40 roaming, and have little inccntivc to do so. 

Verizon's assault on roaming extends beyond stonewalling competitive carriers 

seeking equitable roaming agreements. In fact, Verizon is currently in the process of 

appealing the FCC's 2011 Data Roaming Order, which would require negotiations for 

data roaming services where technologically feasible. 

As you noted, Comcast has described access to roaming agreements as "next to 

impossible." Cox stated that it takes eight months to gel Verizon to the table to discuss 

roaming. Bright House filed an affidavit stating that roaming was needed to unleash 

significant investment in wireless services. It is resoundingly clear that issues relating to 

roaming played a critical role in foreclosing these cable operators from entering the 

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facilitics-bascd wireless market. Had these cable companies built out their spectrum 

holdings, there potentially would be four additional carriers in need of roaming, with 

incentives to foster additional roaming for all competitive carriers. Their exit only 

removes potential roaming partners for other competitive carriers, continuing an 

anticompetitive cycle of limited potential for roaming agreements. This circumstance 

does not bode well for smaller carriers or new entrants who wish to compete with 

Verizon. Strict roaming conditions must appropriately be applied to these transactions to 

ease the competitive harms related to roaming that are exacerbated by these deals. 

4, One very interesting facet of this deal is its timing. Verizon's deals with 

the cable companies were announced last December,just days before AT&T and TMobile announced that they abandoned their proposed merger. Some industry 

observers suspect that these deals were deliberately reached at a time when T-Mobile 

was not free to bid on this spectrum. T-Mobile's FCC filing states "it is likely no 

coincidence that Verizon Wireless signed this deal while the AT & TIT-Mobile 

transaction was still pending, so that T-Mobile was unable to compete to purchase this 

spectrum." What is your view? Do you believe that the timing of the deal had 

anything to do with Verizon Wireless's desire to keep this spectrum out of the hands of 

competitors such as T-Mobile? 

While the timing ofthe deal is clearly suspect, as T-Mobile was not in a position 

to purchase the spectrum due to the since abandoned transaction with AT &T, Verizon 

was also able to offer something that no other wireless provider could - a pathway into 

the wireless market and a non-compete agreement for significant portions of cable's 

footprint. Otherwise, the cable companies could have returned the spectrum to the FCC 

for an incentive auction based on their demanded reserve price or commanded a higher 

price on the secondary market. As part of an "integrated transaction," as Mr. Cohen has 

stated, the deal was not about price for the cable companies, and for Verizon the deal has 

everything to do with eliminating competition - potential competition by the cable 

companies and decreased competition from other carriers. 

Verizon was able to use that offcr to satisfY its desire to keep the spectrum out of 

the hands of spectrum-starved competitors, such as T-Mobile. Indeed, Verizon has 

demonstrated how manipulation of spectrum holdings can impact not only its offerings 

but the ability of other would-be competitors from providing service on similar spectrum 

holdings by withholding an ecosystem for commercially feasible devices and services to 

develop. This can be seen in Verizon's departure from interoperability, as well as its 

newly-seen desire to sell its Lower 700 MHz spectrum rather than deploy services. 

It is clear that Verizon plans to deploy 4G L TE services in spectrum blocks where 

only it controls nearly all of the spectrum nationwide a pattern that fits the A WS 

licenses held by the cable companies but not Verizon's lower 700 MHz holdings. In 

doing this, Verizon has complete control over the ecosystem, creating technical barriers 

to roaming and de facto exclusivity for all devices that operate within their "walled 

garden" network. 

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As I stated at the hearing, this deal is indeed "elegantly contrived" and "superbly 

clever." Verizon has seized an opportunity to gobble up LTE-ready spectrum while 

competitors were unable to negotiate for the spectrum and with an offer that no other 

suitors for the spectrum could providc. 

5. The FCC has a test for evaluating acquisitions of spectrum, what they 

call the "spectrum screen." Verizon Wireless points out that this deal falls under the 

FCC's thresholds in.121 of the 136 markets in the transaction. Should that settle the 

question for those markets? Do you believe the spectrum screen -first developed in 

2001 - is adequate to evaluate spectrum acquisitions today? Why or why not? 

In light of the competitive challenges in the wireless market, including 

consolidation of numcrous prior competitors into the largest two carriers, the spectrum 

screen is broken. Regardless, the spectrum screen was developed as a tool to aid the FCC 

in evaluation spectrum transactions, and was not designed to serve as an up or down test 

to determine if a transaction is in the public interest. Where the spectrum screen does not 

properly account for potential competitive harms in a transaction, it must be adjusted or 

other forms of competitive analyses must be conducted in reviewing the transaction. 

The spectrum screen is not adequate to evaluate its competitive harms. The FCC 

should adjust the screen to reflect today's market realities. Indeed, other adjustments to 

the spectrum screen since 2004 - including raising the thresholds at Verizon's requesthave taken place in the context of a pending transaction review. The Commission has 

always reviewed the spectrum screen on a case-by-case basis in the context of 

transactions before it, and should continuc to do so in this instance. 

In adjusting the screen to reflect today's market realities, the FCC must take into 

account the recent views ofthc Dcpartment of Justice and its own recent affirmations that 

a competitive market has four competitors at a national level as well as additional rural 

and rcgional competitors. The screen also should be reduced to eliminate spectrum that 

will not be available in the immcdiate future for commercial mobile broadband use, such 

as the 700 MHz Upper D block, which has been reallocated for public safcty use, and 

additional SMR spectrum, which the FCC has admitted is not immediately useable for 

mobile broadband. Furthcr, all spectrum is not created equal, and different spectrum 

frequencies should be weighted differently to appropriately account for spectrum value. 

For example, as the FCC has noted, "beachfront" spectrum below 1 GHz is of higher 

value for mobile broadband and should be weighted accordingly. 

The inadequacy of the current spectrum screen to evaluate these acquisitions is 

demonstrated by the few markets triggered in the face of significant potential competitive 

harms, despite the fact that this transaction is the largest spectrum-only transfer the FCC 

has cver reviewed. Accordingly, the FCC must use all tools at its disposal to evaluate 

these transactions and/or the screen should be revised for this transaction to reflect the 

current market realities. 

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Questions for the Record from Senator Lee 

1. In your testimony, you state that Verizon does not need ,~pectrum but rather 

"holds as much as 44 MHz of unused spectrum in many markets. " 

• COllld you comment on the nature of the markets where you believe 

Verizon Wireless has an excess supply of spectrum, whether these are 

limited to rural areas, and ifso, what you believe should be done to 

protect against unused spectrum while allowing Verizon Wireless to 

obtain spectrum where it needs it? 

As I stated at the hearing, Verizon maintains a warehouse of spectrum in excess to 

its needs. Since the hearing, a new development - Verizon's announcement of intent to 

sell its 700 MHz lower A and B block licenses, which have been in its warehouse since 

auction in 2008 -- confirms that Verizon currently holds spectrum that it docs not usc and 

may not have any plans to usc. As Verizon noted in a press release, this spectrum is 

located in the following markets, representing a mix of rural, suburban, and urban 

markets: 

Additionally, Verizon holds almost 65% of the AWS-l Band F Block, which it is 

currently not using, covering the eastern half of the nation. Again, this covers markets 

that arc urban, rural, and suburban. 

The sale of its unused 700 MHz licenses alone is not sufficient to resolve 

competitive concerns in the industry, and the FCC must work to resolve the concerns of 

spectrum aggregation as well as the integrated agreements involved with the transaction 

at hand. Further, withholding the sale of the 700 MHz licenses until after the integrated 

transactions with the cable companies arc closed makes any guesses at who will buy the 

700 MHz licenses, and at what price, pure speculation. In the most recent Verizon 

earnings call, Verizon further noted that if it eannot get the price it desires, it will not sell 

the 700 MHz licenscs, at its discretion. 

Thc FCC has the authority in rcviewing thc transaction to take a close look at 

Vcrizon's spcctrum holdings, both prc- and post-transaction, and the Commission can usc 

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this authority to ensure Verizon has sufficient access to the spectrum it needs while also 

requiring significant divestitures to spectrum-starved competitive operators. 

2. Testimony at the hearing strongly suggested that many, if not most, potential 

buyers of the spectrum at issue in this transaction were approached by the cable 

companies. 

• Do you dispute that to be the case, and if not, how would that affect your 

analysis with respect to the government's intervention in the spectrum 

transfer? 

I take Mr. Cohen at his word from the testimony that SpectrumCo had several 

discussions with potential buyers of this near nation-wide swath of 4G LTE ready A WS 

spectrum, however it is clear from discussion with my members that all potential buyers 

were not at the table. Differences of opinion about whether many or most potential 

buyers for the A WS spectrum were approached may be attributed to the characteristics of 

a potential buyer from the cable companies' point-of-view. 

Demonstrated through the marketing and operating agreements that make up part 

of these integrated deals, it becomes clear that the cable companies' definition of a 

potential buyer has the characteristics of: 

An advanced technology nationwide network with access to the latest devices 

and excess capacity to allow for eventual wholesale access for the cable 

companies; 

A willingness to market the cable companies' core wired operations in 

addition to, or more likely instead of, the potential buyer's own wire or 

nascent fiber operations - essentially a non-compete agreement; and, 

An absence of regulatory scrutiny ovcr other transactions to attempt to deflect 

attention from potential competitive impacts of such a deal. 

Accordingly, there was only one potential buyer who met these characteristics: Verizon 

Wireless. In this suitor alone could the cable companies essentially reach a non-compete 

pact while still gaining access to offering a quad play through adding wireless service to 

their existing triple play package. 

3. In your written testimony, you stated that "ftlMs transaction will only increase 

Verizon's dominance over the roaming market by eliminating four potential 

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roaming partners." Other testimony at the hearing suggested that the cable 

companies had at some point prior to this transaction definitely determined not 

to enter into the wireless market using this spectrum. 

• Is it your view that this transaction is the cause of the cable companies 

not entering into the wireless market? 

• Do you believe the cable companies would use this spectrum to enter 

into the wireless market if this transaction were not allowed? 

Through the integrated marketing and operating agreements that make up part of 

these deals, the cable companies will indeed be entering the wireless market. However, 

rather than entering the market as facilities-based compctitors, they will enter the market 

first as agents to and later as mobile virtual network operators (MVNOs) ofVerizon 

Wireless. This is an important distinction, particularly as it relates to Verizon's 

dominance over the roaming market. 

Were the cable companies to enter the market through facilities-based 

competition, thcy would be important roaming partners for other competitive carriers. As 

not onc of the cable companies would have the scope to provide nationwide service on 

their own, they would actively work to develop a healthy roaming market. Indeed, 

several of the cable companies were among the leading advocates for the 2011 data 

roaming order, based on the importance of adequate voice and data roaming to facilitate 

their entry into wireless. Upon adoption of the data roaming order, NCT A, the cable 

trade association, unequivocally stated that, "adopting enforceable data-roaming rights 

will enable new entrants to compete on a nationwide basis and give consumers more 

choice and flexibility in wireless services." More recently, each of the companies has 

stated the difficulty in reaching these agreements as a primary reason for their decision 

not to enter through deploying their own network. 

As things would stand based on the proposed deals, these cable companies' 

entries into wireless will further increase Vcrizon's dominance over the roaming market 

as four would-be roaming partners are now essentially an extension of Verizon' s 

network. A competitive carrier cannot reach roaming agreements with MYNOs to roam 

on the host network; the negotiations would havc to be with an even more dominant 

Verizon, who owns and controls the network. 

It would be speculation to say whether or not these companies would enter the 

facilities-based wireless market were this transaction not allowcd; however their entry is 

unlikely if policymakers do not take steps to support a more competitive market. The 

cable companies provided a blueprint for the successful entry of a competitive carrier into 

the facilities-based wireless marketplace through their justification in abandoning that 

path. Thesc same policies that competitive carriers havc clamored for - commercially 

feasible roaming, affordable access to backhaul, special access, and WiFi networks, 

interoperable standards, and access to useable 4G LTE-ready spectrum - are the reasons 

stated by the cable companies that their own wireless deployment could not go forward. 

These policies should be conditioned on these transactions and the ends of wireless 

policy if the goal is competitive markets. 

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RESPONSES BY DAVID COHEN TO QUESTIONS FOR THE RECORD

U.S. Senate Committee on the ludiciary, 

Subcommittee on Antitrust, Competition Policy, and Consumer Rights 

Hearing on "The VerizoniCable Deals: Harmless Collaboration or a Threat to Competition and 

Consumer?" 

Responses to Questions for the Record from Scnator Herb Kohl 

1. Comcast and your cable company partners concluded the sale of this spectrum to 

Verizon Wireless just days before T -Mobile's arrangement with AT&T formally 

came to an end. Why not wait to see whether T-Mobile would pay more for the 

spectrum assets, which T-Mobile has suggested it would? Did Comcast not owe a 

fiduciary duty to your shareholders to entertain other potentially higher bids for the 

spectrum? 

As 1 testified, SpectrumCo reached out to virtually cvery major party in the wireless induslly. 

We considered a number of different potential transactions and expended substantial resources 

investigating these options. Ultimately, as to the other alternatives we pursued, we were not able 

to reach agreements or find solutions - sometimes because SpectrumCo decided not to pursue 

the transaction, and other times because the other party decided not to pursue it. 

Discussions with various potential huyers and partners proceeded in parallel at various points in 

time over the past several years. Our discussions with Verizon Wireless wcre our primary focus 

during most 0[2011, while T-Mobilc was intensely pursuing a separate transaction; Deutsche 

Telekom ("DT") announced it was selling T-Mobile to AT&T in March 2011. Atier many 

months of negotiations. we finalized and announced our agreements with Verizon Wireless in 

early December 2011, while AT&T, T-Mobile, and DT were stilI pursuing their planned 

transaction. At the time we concluded our negotiations with Verizon Wireless, we did not know 

that T-Mobile's transaction with AT&T was going to be abandoned. 

The agreements we reached with Verizon Wireless are consistent with Comcast's best interests. 

In today's marketplace, basing decisions like thesc on what might happen in another company's 

pending transaction is simply not practical or sound business practice. We were and still are 

unaware of any statement by T -Mobile that it would pay more for the spectrum than Verizon 

Wireless agreed to pay, and we arc confident that no such statements were communicated to us 

during the period that we were negotiating with Verizon Wireless. In any event, as I have said, 

our concern was not solely with the price we received for the spectrum, but also with the 

provisions of the Commercial Agreements that provide us with a comprehensive strategic 

wireless solution for our company, shareholders, and customers. Our agreements with Verizon 

Wireless provide us with the best solution. 

2. Verizon Wireless and Comcast, and your cable partners, have agreed to establish a 

joint venture to develop technologies to integrate wireless and wireline services -

creating seamless Internet connections between consumers' TVs and their cell 

phones or iPads. We must be especially cautious here because this means that top 

executives from both of your companies - competitors for pay TV customers - will 

meet regularly and work very closely together and in ways that could compromise 

your current or future competition. Investment in technology is generally good for 

consumers, but the concern here is that the joint venture will develop proprietary 
183 

technology, and limit its content to platforms meeting standards set to that 

proprietary technology. Or, it might eliminate your incentives to compete against 

each other for future products and services. Can you give us any assurance that this 

won't happen with the joint venture? 

As you note, the Innovation Technology Joint Venture (often referred to as the ')oint operating 

entity" or "JOE") is being created by Verizon Wireless, Comcast, and the other cable partners. 

Comcast and thc othcr cablc partners arc not direct competitors ofVerizon Wireless; JOE does 

not involve competitors for pay-TV customers. We do compete with Verizon Telecom, but 

Verizon Telecom is not includcd in the joint venture at all. Verizon Telecom and Comcast will 

continue to have every incentive to compete vigorously, and nothing about the Innovation 

Technology Joint Venture changes that. Both Comcast and Verizon Telecom have invested 

billions of dollars to provide what each believes is the best service to consumers. Both will 

continue to compete with each other in order to maximize returns from those investments. 

Moreover, the parties to JOE all have strong incentives to prevent the exchange of commercially 

sensitive information as such exchanges could disadvantage them in the marketplace, a fact that 

is reflected in the agreements. Verizon Wireless has represented to Comcast that it is 

maintaining an information firewall with Verizon Telecom. Comcast, in consultation with 

outside antitrust counsel, has also developed guidelines for team members to follow in an effort 

to guard against transmission of competitively sensitive information to Verizon Telecom, The 

DOJ has recognized that these kinds of safeguards mitigate any anticompetitive concerns. 

While we hope that JOE will develop valuable technology (that is its purpose, after all), there is 

certainly no guarantee. As with all joint ventures, JOE is an investment risk for the companies 

involved. There is no likelihood that JOE or its owners will limit the distribution of any content 

they may control to platforms meeting standards designed around technology developed by JOE; 

to the contrary, content owners generally have powerful incentives to license their content 

broadly to maximize revenues. That is especially true in today's vibrantly competitive, dynamic, 

fragmented, and multi-platform marketplace. Plus, in the case of NBC Universal content, there 

are FCC rules and both FCC and DOJ conditions that address the availability of content to 

multichannel video programmer distributors ("MVPDs") and online video distributors 

("OVDs"). 

3. As you pointed out in your written testimony, Comcast's deal with Verizon Wireless 

allows you to be a reseller of Verizon Wireless service beginning in 2016. Why wait 

until then - why doesn't the deal allow Comcast to be a reseller right now? 

The agency arrangements provide a mechanism that allows us to move swiftly to start offering a 

wireless option to our customers. In fact, although these agrecments were only announced in 

early December, Comcast began marketing Verizon Wireless services in Seattle by mid-January 

and expanded within weeks to Portland (OR) and San Francisco. Refining and perfecting the 

customer interaction scripts, marketing plans, and order flows is currently underway, and other 

valuable experience regarding the wireless marketplace is being gained. Consumers are 

benefiting today. 

Reseller arrangements, such as Mobile Virtual Network Operator agreements, are much more 

complicated and require the reseller to dedicate significant resources to developing and 

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marketing its own branded offerings. As a business matter, it made little sense to invest 

significant resources in diving into the highly-competitive wireless marketplace as a reseller 

when the agency agreements provided Comcast with the ability to offer wireless services almost 

immediately with minimal investment. This will allow Comcast to test the reception such 

services receive from consumers and to gain experience in the wireless marketplace that will be 

valuable in future endeavors. After extensive negotiations, the parties agreed that the option for 

Comcast and its cable partners to convert to resale arrangements would ripen in 2016. 

4. One thing that competitive wireless companies require is what is known as "special 

access" or "backhaul" access over wired phone lines from cell phone tower to long 

distance phone and Internet networks. For years, the competitive wireless 

companies have complained about what they see as very high prices for special 

access from incumbent phone companies such as Verizon and AT&T. One way 

around the incumbents is to contract with the cable companies for special access. 

Will Comcast continue to provide backhaul competition to Verizon for competitive 

cell phone carriers at reasonable and nondiscriminatory terms, or will this deal 

change your incentives so that you will no longer wish to compete with Verizon? 

Yes, Comcast will continue to provide backhaul compctition. As an initial matter, Comcast is a 

recent entrant to the wireless backhaul business, and we are a relatively small part of the overall 

wireless baekhaul markctplace. That said, it is part of our growth strategy, and we are excited 

about the opportunities presented in this space. We have every incentive to invest in and grow 

this business and to provide services to as many wireless companies as possible. Nothing in the 

Commercial Agreements restricts our ability to sell (or gives incentive not to sell) backhaul at 

competitive rates to anyone who wants it. Therc are no exclusives with respect to backhaul 

arrangcments. 

More generally, the marketplace for backhaul services is marked by growth, competition, diverse 

suppliers and service offerings, and continuous innovation. These are not just my assertions; 

they are the FCC's conclusions from last year's AT&TlQualcomm decision. There are - and will 

continue to be many different compctitive alternatives for backhaul. 

5. Do the commercial agreements between Comcast and Verizon Wireless have any 

term or time limit? If so, what is that term? 

As Senator Blumenthal discussed with former Assistant Attorney General Rule at the hearing, 

antitrust reviews typically involve highly sensitive business information that is reviewed under 

strict confidentiality restrictions established by Congress. As I discussed with Senator Franken, 

many discussions and agreements betwecn companies are subject to non-disclosure obligations 

which we are duty-bound to respect. So I hopc you will understand that I cannot go further than 

the applicable non-disclosure provisions allow in providing a public record response to this 

question. 

I can say this. The terms of the Commercial Agreements are commercially reasonable, and 

neither Comcast nor Verizon Wireless is locked into any ofthcse agreements for unreasonably 

long periods of time. That is to say, the parties each havc options at various points in time, or 

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upon the occurrence of specified events, to terminate the agreements. Or, by mutual agreement, 

they can do so at any time. 

Beyond that, I respectfully suggest that further inquiries into this subject be reserved for the 

antitrust authorities who I can assure you arc reviewing (on a confidential basis) all the 

agreements, and all the underlying documentation, with great care. 

6. It has been reported in the media, and was alluded to at the hearing, that the 

commerdal agreements between Verizon Wireless and Comcast were exclusive. In 

what sense are the agreements exclusive? What does the exclusivity cover? 

[ must refer again to the confidentiality concerns referenced in my preceding answer and limit 

my comments to a few general observations. 

First, it is important to note that the net effect of the Commercial Agreements will be to increase 

consumer choice and flexibility, not to restricl it in any way. Comcast will still sell Xfinity 

video, voice, and Internet services directly to consumers as well as at Best Buy stores, mall 

kiosks, and other retail outlets; we are simply adding more outlets where consumers can 

purchase Xfinity serviccs. Likewise, Verizon Wireless service and handsets will still be 

available at Verizon Wireless stores as well as Best Buy stores, Radio Shacks, and other retail 

outlets and wcbsites; Verizon Wireless is adding to the list of outlets where consumers can 

purchasc its services. 

Not only are we adding to the list of outlets where consumers can acquire these services, but 

we're also making it easier for them to do so by giving consumers convenient one-stop shopping 

for a greater variety of products and services, including bundles of communications services. Of 

course, consumers will not have to buy a bundle of services, but, if they want to, that option will 

be available. 

What exclusivity provisions there are in the Agency and Reseller Agreements are necessary to 

ensure thc pro-competitive benefits of those agreements. They reflect the common-sense 

proposition that these agreements cannot be successful unless the parties are and remain 

committed to their success; the exclusivity provisions ensure that all sides share this 

commitment. This concept is well-established under the antitrust laws.! Indeed, other sales 

partnerships in thc relevant markcts including partnerships that DireeTV has entered into with 

AT&T and Verizon Telecom have incorporated exclusivity provisions, without any objection 

from the DOl, FTC, or FCC as far as we arc aware. 

7. Under the commercial agreements, what is the amount of commission payment that 

Comeast will receive from Verizon Wireless for selling Comeast services? Can this 

amount change during the life of the agreements? 

See. e.g., Sheila F. Anthony, Commissioner, FTC, Vertical Issues ill Federal Antitrust Lmv (Mar. 19, 1998) 

(explaining that an exclusivity commitment '"may be procompetitive when it encourages retailers to invest in 

promoting the manufacturer's line, thereby enhancing interbrand competition at the retail level"), available at 

h.!!n;j/v .... \\'\v. ftc. go\' /SPC9chc!'i.:'unthonvlilllabaps.s htm, 

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186 

Comeast will not receive. any commission from Verizon Wircless for selling Corneas! services. 

As far as the commission Comcast will receive from Verizon Wireless for selling Verizon 

Wireless services, the precise amounts of the commissions to be paid under the agency 

agreements are highly confidential. For the same reason I have stated previously, I am not at 

liberty to disclose the precise commission that Verizon Wireless will receive from Comcast for 

selling Comcast services. I can say that these mutual Agency Agreements are market-standard 

agreements, comparable to the literally thousands of agency agreements already in place in the 

wireless marketplace and that the commission amounts are commercially reasonable. Beyond 

that, I can state only that the commission Comcast will pay Verizon Wireless for selling Comcast 

services is a one-time payment that is worth at most only a few percentage points of the net 

present value of a FiOS customer, which is many thousands of dollars per customer. 

8. (a) At the hearing, you testified that Comcast did not begin to study and do 

research on deploying the SpectrumCo spectrum you acquired with your cable 

company partners in 2006 until after you acquired that spectrum. In fact, you 

testified, that "at the time we bought the spectrum we had every intention of at least 

exploring whether we had a viable wireless business." Why was this - why wasn't 

this issue explored before Comcast and your SpectrumCo partners acquired the 

spectrum? Shouldn't Comcast have taken these steps prior to acquiring the 

spectrum, ifit was serious about deploying the spectrum? 

Comcast has long believed that it needed a comprehensive wireless strategy. The FCC's A WS 

auction offered Comcast, along with its SpectrumCo partners, the opportunity to explore the use 

ofthat spectrum to provide wireless services. Before the auction, and before we spent over $2 

billion, SpectrumCo expended significant time and resources to studying the feasibility of using 

the spectrum to deploy new wireless services. That said, there were a number of unknowns that 

all AWS bidders and eventual licensees faced especially those that didn't have an existing 

facilities-based wireless business. SpectrumCo made the considered decision to bid on the 

spectrum knowing that the Commission had determined that a IS-year build out requirement was 

appropriate (as opposed to the regular IO-year period)2 In other words, it was obvious to the 

Commission and all the bidders that the exploration, development, and deployment of wireless 

services over the A WS spectrum was subject to greater uncertainties and complications than 

applied to previously-auctioned spectrum. Nonetheless, the A WS spectrum appeared to offer an 

opportunity for the SpectrumCo owners to invest in a long-term wireless strategy, with the 

knowledge that the license purchase was only the first step in developing the capability to offer 

new and advanced wireless services to consumers. 

SpcctrumCo did not acquire the licenses with the goal of simply launching the company into a 

capital-intensive and competitive marketplace without a sound business plan. It proceeded over 

the next several years to develop and explore potential uses ofthe A WS spectrum, including 

The Commission established an initial license teon of 15 years for licensees in the AWS-I band. agreeing 

with commenters that argued that the need to clear the band and relocate incumbents warranted a longer-than-usual 

initial license term. Service Rules for Advanced Wireless Services in lhe 1.7 GHz and 2.1 GHz Band,. Report & 

Order, 18 FCC Red. 25,162 1170 (2003) (" We agree with these commenters that the circumstances surrounding the 

future development and deployment of services in these bands warrant an initial license term longer than 10 years in 

order to encourage the investment necessary to develop these bands. "). 

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clearing the spectrum and testing 4G technologies and equipment on the spcctrum. Meanwhile, 

consumers' demand for wireless broadband increased dramatically, beginning shortly after the 

A WS licenses were issued, with the release of the iPhone, iPad, and Android phones, and 

making it increasingly likely that SpectrumCo would only be able to deploy a competitive 

network if it werc able to acquire additional spectrum or partner with an established provider. 

SpectrumCo expended substantial resourccs investigating all of its options, did evcrything a 

diligent new licensee could reasonably be expected to do, and took meaningful steps to develop, 

use, and identify long-term business plans for thc spectrum. Ultimately it concluded that a sale 

to Verizon Wireless coupled with thc Commercial Agrecments was the best strategy. 

(b) Does your answer that you had "every intention of!!! least exploring whether we had a 

viable wireless business" (emphasis added) when SpectrumCo bought the spectrum 

indicate that you recognized at that time there was a possibility that Comcast would never 

be able to economically launch a wireless business with this spectrum? 

Given the substantial uncertainties involved with deploying a competitive nationwide wireless 

network at a time when consumer dcmand for broadband was (and still is) ever-growing, it was 

always possible that the launch of a successful wireless service might not be economically 

feasible. This is the nature of business in a highly competitive marketplacc. Nevertheless, we 

hoped and expected that, having invcsted substantial time and resources, as well as several 

billion dollars in spectrum licenses, the A WS spectrum would enable us to develop a 

comprehensive wireless strategy. Our hopes for a comprehensive wireless strategy never 

changed, but the marketplace did. After acquiring the spectrum licenses, SpectrumCo proceeded 

over the next several years to develop and explore potential uses of the spectrum, doing 

everything a reasonably diligent new licensee might be expected to do. In the end, 

SpectrumCo's owners found that the substantial costs associated with construction ofa wireless 

network, the lack of a reasonable guarantee of a return on thc investment, and the risks 

associated with becoming an additional facilitics-based competitor in the highly competitive 

wireless marketplace did not make business sense and could not be justified. 

9. Our subcommittee has heard concerns that the commercial agreements between 

Verizon Wireless and the cable companies could contain provisions allowing the 

parties to jointly negotiate for programming content. The concern is that, if so, the 

parties to these deals could obtain lower rates for content because of volume 

discounts that competitive pay TV services would not be able to obtain. Do the 

commercial agreements contain any provisions allowing Verizon Wireless and the 

cable companies to jointly negotiate for programming? If so, won't this 

disadvantage competitive pay TV providers? 

There are no provisions in the Commercial Agreements addressing Verizon Wireless' and the 

cable companies' acquisition of programming. 

10. (a) In an FCC filing made on September 30, 2009, Comcast described a "wireless 

marketplace that has come to be dominated by two firms, AT&T and Verizon.,,3 

3 Comments of Com cast Corporation, Fostering Innovation and Investment in the Wireless Communications Market 

and A National Broadband Plan/or Our Future, GN Docket Nos. 09-157, 09-51 (filed September 30, 2009), 

available at: http://apps.fcc.gov/ccfs/commenllview?id=6015191537 

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Comcast also noted that "AT&T and Verizon not only have substantial 'first mover' 

advantages, but they have amassed prime spectrum in the 700 MHz and 800 MHz 

bands that, due to propagation characteristics, creates a significant economic 

advantage in the construction and deployment of broadband wireless networks." 

Does the sale of the A WS spectrum to one of these two firms not exacerbate the 

competitive concerns you described in 2009? 

The statements you quote are from comments filed in connection with the FCC's development of 

the National Broadband Plan ("NBP"). While the passages you quote are from an introductory 

section, our primary objective in this filing was to persuade the FCC to address three priority 

issues: spectrum availability, automatic data roaming and home roaming, and pole attachment 

rates and availability. The NBP agreed with Comcast that all of these are high-priority areas to 

promote a more competitive wireless marketplace, and the Commission has taken meaningful 

action on each over the period since the comments you quote were filed. On roaming and pole 

attachments, the FCC has since adopted rules that substantially address the issues we raised. As 

to spectrum availability, the FCC successfully urged Congress to enact legislation to free up 

valuable spectrum through the use of incentive auctions but this is an immensely complicated 

process that will take years to come to fruition, and it remains to be seen how much spectrum 

will become available and when. As the NBP noted, the difficulties associated with making new 

spectrum available make it all the more important that secondary markets remain capable of 

reallocating spectrum swiftly and efficiently, as is occurring in the SpectrumCo sale to Verizon 

Wireless. So the FCC, through its actions, and this Congress, through its recent legislation, have 

begun to address the concerns we raised in our comments in 2009. 

Moreover, the 20 megahertz of spectrum we are proposing to transfer to Verizon Wireless will 

not take Verizon Wireless above the FCC-established spectrum screen in almost every single 

market in which Verizon Wireless operates. I would note, also, that the spectrum involved in the 

SpectrumCo sale is in the 1710-1755 and 2110-2155 MHz bands. No spectrum in the 700 or 800 

MHz bands is involved here. 

(b) In your September 30, 2009 FCC filing, Comcast further wrote that, "Scarcity 

of spectrum acutely affects the ability of companies to enter the wireless market and 

compete with incumbent carriers. AT&T and Verizon in particular have over the 

years amassed substantial amounts of spectrum, much of it in the lower bands" -

which you identify as spectrum below 3 GHz - "that, as explained below, are in 

many ways the best suited for wireless broadband services." You also noted that 

these factors "create significant challenges for new entrants and threaten to 

diminish wireless investment and innovation," adding that "The Commission should 

examine these issues and consider appropriate policies to address them." By your 

own logic, doesn't this transaction - which further concentrates valuable 

commercial spectrum in the hands of one of these two dominant firms - create 

"significant challenges for new entrants" and further "threaten to diminish wireless 

investment and innovation?" 

As I noted in my answer to the previous question, the FCC has in fact examined the issues 

Comcast raised in its 2009 filing and has not just considered but has actually adopted appropriate 

policies to address them. In describing the ehallenges faced by new entrants, it was entirely 

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189 

appropriate for Comcast to identify the advantages enjoyed by long-established and successful 

carriers. Comcast did not propose that those carriers be prevented from acquiring additional 

spectrum, but it did urge that additional spectrum be made available in the marketplace. With 

additional authority recently provided by Congress, the FCC is working hard to do just that. 

Finally, the FCC has a well-established mechanism for determining whether a proposed 

spectrum transaction is in the public interest, and Verizon Wireless and SpectrumCo have 

demonstrated that the proposed transaction meets the public interest standard. 

II. One of the key ways of increasing capacity on wireless networks is to offload 

demand onto WiFi networks, such as those the cable companies and Verizon have 

built into consumers' homes. Will you commit to offer WiFi offload on an open, 

non-discriminatory basis to other carriers not parties to the commercial 

agreements? If not, why not? 

There is nothing in these agreements that grants any rights to Verizon Wireless to offload its 

traffic onto Comcast's Wi-Fi network. Comcast has viewed its network ofWi-Fi hotspots as an 

extension of its residential Xfinity Internet business, and we provide this service to our Xfinity 

Internet customers (and to Internet customers of Cable vision and Time Warner Cable) regardless 

of whether they use Verizon Wireless, AT&T Wireless, T-Mobile, Sprint, MetroPCS, or anyone 

of the scores of other wireless carriers. Any efforts we may undertake to reach commercial 

arrangements with wireless carriers in connection with Wi-Fi offloads would be independent of 

and umelated to the spectrum assignment and the Commercial Agreements. 

12. Do you have any response to the suggestions of Prof. Wu, Mr. Kelsey and Mr. 

Berry given at the hearing as to possible conditions the Justice Department or FCC 

ought to place on your deals with the cable companies, should the deals be 

approved? 

Our transactions with Verizon Wireless are pro-competitive and pro-consumer. They comply 

with all applicable laws, rules, and policies. There is no basis for imposing any conditions on 

these agreements. 

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190 

Responses to Questions for the Record from Senator Mike Lee 

1. [understand that Verizon Wireless purchased the spectrum at issue in these 

agreements for a total of about $3.9 billion. Some, including Mr. Berry who was at 

the hearing, have suggested that the licenses are really worth significantly more and 

tbat the cable companies could have commanded a much higher price for the 

spectrum from other carriers. Although there was discussion of negotiations and 

incentives at the hearing, there still seems to be some confusion about this issue. 

Can you please explain what Comcast did to make certain that it got the best deal 

possible for its spectrum sale? 

As I testified, Comcast engaged in discussions with almost every major party in the wireless 

industry with respect to this spectrum. The specific dctails of our discussions with individual 

parties are highly confidential, and for the most part are subject to non-disclosure obligations. 

can say that SpectrumCo fully explored (I) building out its own wireless network, (2) 

acquisitions, joint ventnres, and network sharing arrangements with other wireless companies, 

and (3) transactions of the sort that we ultimately entered into with Verizon Wireless. 

SpectrumCo expended substantial resources investigating these options, but concluded, for a 

variety of reasons, that each option had significant limitations and would not provide a 

eomprchensive and viable long-term wireless solution.4 

While we appreeiatc the reasons why Mr. Berry might now claim that the spectrum at issue is 

worth more than Verizon Wireless has agreed to pay, 1 can assure you that thosc who negotiated 

the sale on behalf ofSpeetnnnCo were infornlCd and sophisticated experts who were committed 

to achieving the best bargain possible for SpectrumCo's owners. Had they been able to gct a 

better deal elsewhere, they would have. 

2. The primary consideration of our antitrust laws is consumer welfare. Accordingly, 

in considering the effects of a transaction on competition, we must give appropriate 

weight to resulting efficiencies. At the hearing, there was some discussion of the 

efficiencies resulting from having a quadruple play available. 

Can you please describe any evidence or marketing research information Comcast 

has indicating that consumers do in fact want a quad play? 

We don't really know what percentage of consumers will find it important to obtain their video, 

voice, Internet, and wireless services from a single supplier or from two suppliers but a single 

sales agent. We do know that many of our customers value the option to procure two or three 

See Verizon Wireless-SpeetrumCo Application Form 603, WT Docket 12-4, Ex. 4 ,:~ 3-14 (Dec. 16,2011) 

(Declaration of Robert Pick). In its efTorts to develop and explore potential uses of the AWS spectrum, SpeetrumCo 

expended many millions of dollars to identify and clear incumbent microwave links; test difTercnt 4G technologies 

and equipment; and evaluate the investment necessary to deploy and operate a network using A WS spectrum. 

SpeetrumCo ultimately decided not to enter the wireless marketplace as a standalone facilities-based provider for a 

number of reasons, not the least of which include a massive capital-intensive investment (estimated at $10 - $11 

billion) that carried with it substantial risks and no assurance ofa return; a likewise capital-intensive and ongoing 

need for additional spectrum as consumers~ appetite for spectrum-intensive services grows; the high eost of 

obtaining and providing cutting-edge wireless devices; and the difficulty of securing roaming agreements. See id. 

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191 

products in a money-saving package; currently, about two thirds of our video customers buy 

voice or data services from us, and about one third buy all three services (video, voice, and data). 

About 95 percent of Comcast's customers already have wireless service, so we do not have 

inflated assumptions about the extent to which they will wish to order wireless service from 

Comcast. On the other hand, we think this is an option they ought to be able to have. Moreover, 

this is an option our competitors are already offering. 

3. Some have expressed concerns about potential anticompetitive effects of the 

agreement between Verizon and the cable companies to invest in a new joint 

operating entity. Critics speculate that this agreement contains exclusive 

arrangements with respect to backhaul and Wi-Fi offloading, or that the companies 

will use the new product to gain an undue advantage and force oth~rs out of the 

market. 

Could you comment on the joint operating entity-specifically, what is included in 

that arrangement, what types of products you anticipate might be developed, 

whether those technologies will be licensed to third parties, and why your company 

felt it important to enter into this arrangement? 

We formed the Innovation Technology Joint Venture, or JOE, for the purpose of developing 

technology and intellectual property to create innovative and compelling new products that 

seamlessly integrate wired and wireless technologies. We hope JOE's products will effectively 

compete with products developed by AT&T, Dish Network, Google, Microsoft, Apple, and 

others. JOE will allow Verizon Wireless and the cable companies to bring their collective 

expertise to the table to develop next-generation technologies that the companies alone could not 

effectively develop. 

JOE is still a nascent organization and has not yet developed any specific processes for deciding 

what products should be developed or how they should be developed. But it may explore a range 

of consumer-friendly technologies that inelude, for example: allowing consumer devices to 

seamlessly transition between Wi-Fi and mobile wireless networks; integrating services like 

voice mail, caller ID, and contact lists across home and wireless phones; and enabling seamless 

access to content like photos, videos, and music on both home televisions and mobile devices. 

While it is our hope that JOE will develop many exciting integrated technologies, it is far too 

early to speculate as to the success of JOE and its technologies. If we succeed in this 

competitive marketplace in creating valuable technologies that enhance consumer products, we 

will evaluate ways to monetize those technologies, including through third-party licensing 

agreements. And JOE is generally permitted to license technology to third parties. But those 

business decisions should remain with JOE. We are entering a very competitive space with wellheeled players like Apple, Microsoft, and Google, who arc under no obligation to open up their 

intellectual property to others. Preserving the freedom of intellectual property owners to license 

or not, and if so on what terms, spurs all market players to continue investing and innovating, 

which ultimately benefits consumers. 

4. At the hearing, Senator Franken asked Randall Milch: "Will you commit to opening 

up the technology and intellectual property that your companies create to your 

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competitors so that they can obtain the technology at fair reasonahle and nondiscriminatory rates?" 

(a) On hehalf of Comcast, what is your reaction to this request? 

I think Mr. Milch aoswered this question appropriately. He made three key points. First, we are 

starting from scratch and do not currently have aoy technology or intellectual property. Second, 

we are entering a very competitive marketplace with formidable players such as Apple aod 

Google. And third, if we are successful in developing a new technology, it isn't clear why our 

intellectual property shouldn't have the same protections as other companies' intellectual 

property. We should be permitted to do as we see fit with our intellectual property, in the same 

way that Apple aod Google do. I agree with MLMilch on each ofthese points. 

I might add that our efforts to develop new technology will spur other companies to respond, 

perpetuating a cycle of competitive investment aod innovation. This virtuous circle of 

innovation would be thwarted if we were required to license our technology to all comers. 

(b) If Comcast and Verizon are forced to license or sell new technologies, how will 

this reduce the incentives that Comcast has to invest capital in this research and 

development joint operating agreement? 

A forced licensing regime necessarily reduces incentives to invest and innovate. The best way to 

promote the investtnent oftime and capital necessary to develop intellectual property is to 

respect the creators' property rights in the fruits of their labors. The Framers understood this, 

which is why they concluded that "[t]o promote the Progress of Science aod useful Arts," 

Congress should be empowered to "secur[e] for limited Times to Authors and Inventors the 

exclusive Right to their respective Writings and Discoveries." It is on this authority that 

Congress has since the 18th Century enacted (and from time to time revised) patent aod copyright 

laws. 

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193 

Responses to Questions for the Record from Senator Charles Schumer 

1. I understand that, under the terms of Joint Marketing Agreements, Comcast, Time 

Warner, Cox, Bright House Networks, and Verizon Wireless will now each be able 

to offer the quadruple play of video programming, broadband, voice, and mobile 

wireless services. I have heard concerns that this bundling of services will reduce 

the value of a competing company's video and broadband product because it will be 

more expensive for competitors to get access to must-have programming, resulting 

in consumers suffering through higher costs. Can you respond to these concerns? 

Nothing about these transactions will in any way affect the ability of Comcast's video 

competitors to obtain must-have programming. Nor will anything in these transactions affect 

Comcast's incentive to license programming to its competitors. I can say categorically that no 

term of any of the Commercial Agreements provides for the licensing of NBCUniversal content 

to Verizon Wireless (or, of course, Verizon, which is not even a party to thesc agreements). 

And, in all events, any content licensing deal between NBCUniversal and either Vcrizon or 

Verizon Wireless would have to be consistent with the relevant FCC and 001 conditions from 

the NBC Universal transaction, and the FCC's rules. 

Moreover, the joint marketing arrangements are by no means unique to Comeast, Time Warner 

Cable, Cox, Bright House Networks, and Verizon Wireless. In this highly competitive and 

dynamic marketplace, there are numerous of situations where one provider markets the services 

of another. I gave several examples in my written testimony, including the following: 

• Frontier Communications and AT&T Mobility announced a three-year agency agreement 

on November 15, 2011 that enables Frontier to offer customers access to AT&T 

smartphones and the AT&T mobile broadband network bundled with Frontier's 

broadband Internet, voice, and satellite TV services, all on a single bill from Frontier; 

• AT&T and DIRECTV signed a three-year commercial agreement on November 3, 2011 

through which both companies are able to offer customers a quadruple-play bundle of 

AT &TfDlRECTV video service and AT&T broadband, home phone, and wireless voice 

services, as well as bundled discounts; and 

• CcnturyLink and Verizon Wireless announced an agreement on February 15,2011, under 

which CenturyLink became an authorized agent ofVerizon Wireless and can offer 

customers Verizon Wireless service with CenturyLink's High-Speed Internet, unlimited 

local and long distance, and television services. 

2. The 1996 Telecommunications Act reduced regulation based on the assumption that 

cross-platform competition would drive innovation, lower prices, and new services 

to benefit consumers. Just two years ago, Verizon touted the importance of the 

"competitive rivalry between cable companies and teIcos" resulting in benefits to 

consumers of "better broadband services and lower prices." 

a. What is your view of that rivalry now? 

12 -
194 

Competition that has emerged since the passage of the Telecommunications Act of 1996 is more 

robust and vibrant than could reasonably have been cxpected 16 years ago. Certainly the 

century-old Bell monopoly in phone services has been destroyed; Comcast (which did not 

provide any phone services in 1996) has now become a major residential phone services provider 

in the United States. The video marketplace has become vastly more competitive as well, with 

AT&T and Verizon (neither of which provided any video services in 1996) having become the 

seventh and eighth largest MVPDs, DirecTV and Dish Network (which were both quite small in 

1996) having become the second and third largest MVPDs, and online video providers (Netflix, 

Amazon, YouTube, Hulu, and countless others, none of which could hardly have been imagined 

in 1996) flourishing beyond anyone's expectations. Competition has driven massive investment 

and innovation in broadband networks, with Comcast having deployed DOCSIS 3.0 across 

nearly all of our footprint, thereby enabling competitive video and voice serviccs along with 

innumerable new opportunities in social networking, telchealth, distance learning, 

telecommuting, and on and on. 

b. How do the joint marketing agreements affect that view? 

The Agency Agreements are entirely consistent with the views just expressed. As noted above, 

these arrangements are not unusual. These kinds of arrangements are reflective of intense 

competition, and they do in fact bring lower prices and new purchase options to consumers. 

It is important to note that Comcast'sjoint marketing agreements are with Verizon Wireless, not 

with Verizon Telecom. Comcast and Verizon will continue to compete vigorously against one 

another for voice, video, and Internet services and Com cas! will continue to have powerful 

incentives to invest and innovate in its services. 

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195 

Responses to Questions for the Record from Senator AI Franken 

1. In December, AT &T announced that it was terminating its plans to acquire TMobile USA. This occurred just days after you announced your plans to sell your 

spectrum to Verizon Wireless. As we discussed during the hearing, there were 

many indicators that this deal was on the verge of collapsing long before AT&T's 

announcement in December. Can you please indicate when you talked to T -Mobile 

about acquiring your spectrum? Did you talk to them subsequent to the Justice 

Department's decision to sue to block the deal, or after the FCC signaled that it 

intended to fight the merger as well? If not, please explain why Comcast did not 

engage with T -Mobile at that time, especially since it seems likely that T -Mobile 

would have been willing to pay a premium over what Verizon paid to acquire this 

spectrum, which is adjacent to its current spectrum holdings. 

As I explained at the hearing, my ability to divulge the timing of our discussions with T -Mobile 

is constrained by non-disclosure agreements. I was comfortable confirming that we spoke to TMobile in 2010 because I was merely confirming the representation of Robert Dotson, thenPresident ofT-Mobile, that he was in discussions with us about this spectrum. As I also said at 

the hearing, the discussions stopped no later than the time Deutsche Telekom ("DT") announced 

it was selling T-Mobile to AT&T (which they did on March 20, 2011). I think it is fair to add 

that T -Mobile did not approach us about purchasing the spectrum while its deal with AT&T was 

pending. After many months of negotiations, we finalized our agreements with Verizon 

Wireless in early December 201 I, while AT&T, T-Mobile, and DTwere still pursuing their 

planned transaction. We announced our agreements on December 2, 20 I I. AT&T and DT did 

not abandon their transaction until December 19,2011. Comcast and T-Mobile did not engage 

in discussions at that time beeause by then we had already entered into binding commitments 

with Verizon Wireless. 

2. Please explain why Comcast chose to accept Verizon's bid over other companies' 

bids? Did Verizon bid more for this spectrum than all other companies? How did 

Comcast account for the potential economic benefits that it could derive from 

Verizon's decision to permit Comcast to market its products in areas where FiOS 

was available? Did this factor into Comcast's decision to accept Verizon's bid over 

other companies that do not have a product that competes directly with Comcast's 

products? 

We did not formally auction the spectrum. We did market the spectrum, in the sense of holding 

discussions with virtually every major player in wireless industry either about selling them the 

spectrum or partnering with them to develop it. We were looking to devclop a comprehensive 

strategic wireless solution for our company and for our customers, and ultimately we found that 

solution with Verizon Wireless. 

We see the Agency and Reseller Agreements as beneficial across our entire footprint, with no 

particular advantages in areas where FiOS is available as opposed to areas where it is not. The 

Agreements enable us to be more competitive by offering a quad-play bundle across our entire 

footprint. in much the same way as our competitors are doing. Any suggestion of competitive 

concerns does not even make sense for most of the country; FiOS is not even available in morc 

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196 

than 85 percent of the cable companies' fOotprint. In those areas in which FiOS is available, we 

have no advantage over FiOS in our relationship with Verizon Wireless. Vcrizon is frcc to 

market Verizon Wireless services in competition with the cable companies, and Vcrizon 

Wireless itself will market both the cable companies' and the FiOS services on an equal basis. 

Indeed, in those areas in which FiOS is available, Verizon Wireless retail stores may simply 

become another space in which the cable companies and Verizon FiOS compete head to head for 

wired services (Verizon Wireless is not required to sell the services of either Corncast or Verizon 

FiOS in its retail stores, but, to the extent that it chooses to do so, it must treat both equally). 

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197 

RESPONSES BY JOEL KELSEY TO QUESTIONS FOR THE RECORD

Sen. Kohl's Follow-Up Questions for the Record for Hearing on 

"The Verizon/Cable Deals: Harmless Collaboration or A Threat to Competition and 

Consumers?" 

For Joel Kelsey 

I. One thing that competitive wireless companies requirc is what is known as 

"special access" or "backhaul" - access over wired phone lines from cell phone towers to long 

distance phone and Internet networks. For years, the competitive wireless companies have 

complained about what they see as very high prices for special access from incumbent phone 

companies such as Verizon and AT&T. One way around the incumbents is to contract with the 

cable companies for special access. Do you have any concerns that this deal will change the 

incentives of cable companies to provide special access? 

Yes. There arc only two wired ecosystems in the United States·- cahle companies and telephone 

companies. Access to the Internet backbolle, which is llcccssary to provide consumers with 

Intcrnet service. is wholly dependent upon relationships with the companies that own these "on 

ramps'. 

The "special access" mlemaking procecding at the Fcderal Communications Commissioll is full 

of evidence demonstrating the severe lack of competition in this market for special access or 

other dedicated high-capacity connections. This has allowed Verizon and AT&T, thc two 

dominant incumbent local exchange carriers, to favor thcir own wireless affiliates, -charge supracompetitive rates and impose onerous contracts on their smaller wireless competitors who havc 

no alternatives for special aeccss lines. Cable have demonstrated some interest in 

competing more aggressively in this space (albeit a geographically limited fashion); however 

that interest is now dampened as a result ofthis proposed transaction. 

In the proposed transaction, cable providers serving 75 percent of the U.S. market have partnered 

with Verizon, creating considerable risk that the smatl amount of competition that exists in the 

market for backhaul transit will be signilicantly weakened. 

2. In his March 8 Politico interview, David Cohen said that one of the reasons 

Comcast decided not to enter the wireless business was the presence of insurmountable hurdles 

like roaming - which he described as "next to impossible" to secure. If roaming is next to 

impossible for a company like Comcast to secure, what docs that say about the ability of smaller 

carriers to effectively compete with Verizon? 

Terrestrial based cablc com panics are in the best position to enter the wireless market. 

providing a retail product, they have a broad consumer base that already 

monthly services, they have their own liber infrastructure to provide backhaul within 

their footprint, and .:stablishcd business relationships with telecom transit providers outside of 

their footprint. 

The to offer facilities based competition in the wireless market 

and underscores structural problem with 

trend towards a duopoly market 
198 

that the DenaTimenl orJn,tice and the Federal Communications Commission idemificd in their 

rejcetiol1 A T& TIT -Mohile merger~ 

What is most interesting in this transaction that thc cablc companies lnvoiv(.xi have signaled 

that their cntry illlo thc wireless market is inevitllb!c~ Even if the costs out their own 

infrastructure arc prohihitivc, cable companies could still enlcr the wire!.:ss math,! in other ways 

that rather than lessen, competition. For they could have It"'",,n!l:" 

SP,celrurnCo's licenses to partner with It non-dominant calTi0f like Ciearwire or TMobile, buying wholesak access to their network and ufTering cable subscribers w!rekss service 

'II rates, lel111S and conditions that arc eompctitivl) to VcriZO!l or AT&T. 

However, uuder these agreements, the companies arc nor " ... -~"'U"'" 

under competitive rates, terms and conditions. They arc merely as sales agents, signing 

their own customers into Verizon "'lireless' two-year contracts in ,,"~,'h,m',{> f()r an assurance they 

won't face competition from Verizou FiOS in the monthly videu and at-home market 

3, One very interesting facet of this deal is its timing. Verizon '8 deals with the cable 

companies were announced last December, just days before AT&T and T -Mobile announced that 

they abandoned their proposed merger. Some industry observers suspect that these deals were 

delik'rately reached at a time when T-Mobile was not free to bid on this spectrum. T-Mobile's 

FCC filing states "it is likely no coincidence that Verizon Wireless signed this deal while the 

AT&Trr-Mobile transaction was still pending, so that T-Mobile wall unable to compete to 

purchase this spectrum." What is your view? Do you believe that the timing of the deal had 

anything to do with Verizon Wirelcss's desire to keep this spectrum out of the hands of 

competitors such as T-Mobile? 

While it's hard to know all the drivers behind the decisions of the various complluies that have 

entered inlo this Ululti-!heeted transactioll, the timing VeriZOIl Wireless was motivated 

at least in part due to the foreclosurc valuc of keeping spt'Ctrum Irom its competitors. 

out that because of the important role spectrum plays ill the Investmcnt 

"r:"u'""',, .. ,' ".;,. .. ,l." .. ~ carriers, the value of that spectrum to incumbent is increased, 

value of spcctmm tbr an inelllllbem in a given market not only tbe rcvenue 

from use of the spectrum btlt also lbredosure value -- tht~ benefits gained b~~ preventing rivals 

tI'om using that spectrum to ewde the incumbents' existing businesses. Thcrefbre, evcn though a 

carrier may not need spectrum 10 meet an immediate demand, it has signilicarll incentives to 

kt-cp that resource fwm its would-be rivals. This the private value of the 

spectmm to an company, and not the puhlic of SPt'Clflltn to the public or the US 

economy~ 

Indeed, that appears to be the case in this trans;lctiotl. The companies seeking Illr this 

transaction freely admit lhal "Verizoll Wireless has sufficient sp" .. etrum to meet immediate 

needs, and to meet increased demand in millly areas ullIiI 2015," and tbe record in the 

FCC is replete with evidence that Verizoll is well positiont'd even attcr this time 

pcriod~ 
199 

Purchasing this spectrum is not the way Verizol1 ean m.:et inercasing ('OIlSUmcr d.:mand for 

data. but it is the only way it can its competitors from providing ,I scrious clJlnpelitivc 

threat by lower-cost high-speed mobile services. 

4. The FCC has a test for evaluating acquisitions of spectrum, what they caU the 

"spectrum screen." Verizon Wireless points out that this deal falls under the FCC's thresholds 

in 121 of the 136 markets in the trallSllction. Should that settle the question tor those markets? 

Do you believe the spectrum screen _. first developed in 2001 is adequate to evaluate spectrum 

acquisitions today? Why or why not? 

First, it's to in mind that the sp<:ctrum ,ctc'cn is not a 

dctcmlines reaction Commission in any given transaction. 

Hcrschman Index in thc anti"trust context, the spel'tnull Sl'rcen acls as a guide post to instruct the 

Commission whcn a transaction has the potential of significantly icssening competition. 

in fact, in sevcral instances the Commission has actually "C!llarw,~,d 

transaction. In the past, it has always raised the scrccn to transfers thm drivcn 

a dis-proportional amount of valuable spectmm to the two companics wilh the largest market 

share. 

Howcver, the screen is tmlocquaw to mcasure thc advant:lgc that valuablc spectrum gives to the 

nation', largest wireless 

Each band of speetmm in each local market has unique characteristics that rC$ult in no two 

"',""<Hed"'Y sized blocks identical value. Thesc differences are due in to the 

pHl!paJ'llltlon characteristics speclnU!l how lar they can carry a 

can pcnetrate buildings and terrain. 

the location of broadband spectrum is the main lhrce of its value. 

screens that rhe FCC uses to measure speetmtn don"\ measure Ihis 

dynamic. These antiquated screens arc out of date "~" they measure only the square footage of 

holdings (the amount or MHz) and ihi! to acknowledge whether the spectrum 

are beachthmt. adjacem, or have only a beach view. 

Without acccs, to a sutlicient amount 11 wireless cnm'Ii"'\! 

first-class wirdess services. It cannot scale a cost-ct11cient way. or up Wilh 

gnw/ing eonsmner dcmand tor wireless dal'l. Sn""'llmm parJieularly highly valuable spectrum, is 

the input markct on wh.ich the entire wirekss is buill. 

When whether or not this transaction willimnn competition Of benefit the 

puhUc thcy must across the wireless markelpia,:.:: and ask qucstions about the future 

prospects for competition and how they wHl be impacted by this d.::,d. 

Any analysis of this !r'&nsactioll musl take aeCOUIlI the value ofthc 

order to examine the concentration of market that 

the Iota! MHz ofavailablc speclmm 

portrait of markct power. 
200 

An analysis of the spectrum holdings most valued providing motnk data ~erviee3 reveals a 

signitlcant imbalance in ownership. Currently two companies·~· AT&T and Verizon Wireless 

hold a percentage Qfbeachfh:mt speelmm, with Verizon alom: controlling 

one-third spectrum best suited for nationwide mobile broadband. 

Free Press attempted to provide a of s~}eetrllm market share at the national level, 

based on value by a sehcme based on the book wdue of spl'Ctrum 

holdings r,~ported to the SEC reeeO! prices, llnd reccnt prices reportcd on the seC:!lflt!iIlV 

markets. Thc result can bc seen in the table on page X of my written testimony. 

this approach. we observe that if these ap'pll'C(HIOilSare approved. Verizoll will control 

!idly percent of ail value·weighted mobile spectrum. If a more tUlled 

valuation mcthodology is used by the expt'rt federal to assess market shares, this level of 

control over the spcctrum input utarket would considered "moderately coneemratcd" 

by DoJ standards, and should raise red at the and the FCC. Given the 

concentrated nature of the overall wireless markut, 

transaction would significantly weaken fumr..: prospects for m0',mm"\1l1 wireless compctition. 

5. Verizon and its cable partners have agreed to establish a join! venture to develop 

technologies to integrale wireless and wireline services creating seamless Internet connections 

between consumers' TV, and their cell phones or iPads. This has raised eoncerns because this 

mcans that top executives from fue companies to fhese deals competitors for pay TV customcrs 

- wi!! meet regularly and work very closely together and in ways that could compromise their 

current Of luLurc competition. Invcstment in technology is generally good for COllSumCrs, but fue 

concern here is that the joint venture will develop proprietary technology, and limit its content to 

platfornls mecting standards set to that proprietary technology. Or, it might eliminate the parties 

incentives to compete against each ofuer for future products and services. What's your view? 

Arc you worried about the joint venture being used to disadvantage competitors? 

Yes. The joint-operating entity agreements have been dcseribed as collaborations to 

integration teclmology. 

The entities involved in this transaction posses significant market power, so cngaging 

in cross-licensing schemes should llllti-Imsi concerns the likelihood these 

companies will exclusively dcal one another 10 exdude potential competitors is heightened. 

We view the JOE's as an attempt involved to control the pacc ofinnovation. 

Consumers bave some like these that have dampencd incentives for 

innovation and hcid from more ubiquitollS. TIle Cllftcilike agreement between cable companies to create Labs". example, prevcnts lIew 

devices Iftlln more fCadily available to eOllsmners. as a to the broader 

marketplace, Labs has prevented clectronics manntacmn:s Itom lICI,Ig"lIln'g 

devices that would allow consumers through video through Ip· 

enable like Neltli~, or DVDs. 

Much of the translbrnUltivc nature the Internet derived lI'om the fact that it represents a 

universal Every IntemcH:nabled device can read rCP!11' and every network is 

to transmit data this [lmnat This to hand traflie otT thJln 
201 

various wired and wireless networks 

nnwl'l"r~ in the coumry. There 

have acceSs. 

only few oflhc 

l)!"()Vldcrs on the outside 

broadband 

dubwiH 
202 

Questions for the Record for Verizon-Spectrum Co. Hearing 

Wednesday, March 21, 2012 (2 p.m.) 

Joel Kelsey-Policy Advisor (Free Press) 

L In your filing before the FCC, you assert that the current spectrum screen is outdated and 

should be changed to takc account of the monetary value of spectrum. When AT&T 

sought to merge with T-Mobile and argued that the spectrum screens should be changed, 

you opposed making any changes to the screens and asserted that seeking a change to the 

screens in the middle of a transaction was "self-serving." 

• Do you now think it proper tor the FCC to change its spectrum screens during the 

middle of a transaction, and if so, how do you account for your changed position? 

In our Rl?pl~' to Opposition in the FCC's pnlCCCGlmg on thc AT&T-T-Mobilc transacti()n. we 

slatcd: 

Applicants assert tllm ''the combined company's spectrum will fall far 

short of levels thai (oould support any reasonable concern about spectrum 

bill hases this sratement on its heliefthat the Commission should 

contollrs onts screen, in part by 

that hape /lot yet Men available for mobile ort:lo(;lt>a'fld 

respect to the curren! spectrum screen, Applicants that on average the 

combined company would hold 134 MHz of spectrum. is less than one 

third of tile 424.5 Mllz that AT&T (,a!culates to be the tolal available lor mobile 

broadband. But that estimate explicitly excludes in the numerator the Qua!comm 

spt'Ctrum as well as olher 700 MHz licenses that AT&T also has sought 

permission to acquire, Together, if all of these transaetiolls were to be approved. 

tbe combined company would hold 011 well over Olle third or all spectrum 

currently considered by the Commission to suitahle for mobile broadband 

deployment [ ... ] Applicants attcmpt to defuse these arguments by that 

the Commission should no! care how much spectrum a has. but 

should ask "whether the amount of spectrum a provider 

is sufticicnt to haud!e bandwidth demands gcnerated 

area." This is Incorrect. and such 

knell for wireless competition policy (if1temal dta/ions omitted ami empilasis 

added), 

Essentially. we were making the point that AT&T's n:qucs\ lila! the spectrum screen be 

e:'(pamk'tl to include MSS spectrum was unwise. and 

given thc doubts about spcctrum's future as a resourcc fbI' the rmWIS1('1l 

ICI1'cslrial mobile scrvices, It's clear now that mCllHlmg 1..'"'H~'.lU''''';''' 

screen ,vould havc been a premature llllWC. since 

k<'ep trom allY terrestrial usc the fbfcsccablc future. 

1 
203 

that the spec,trum screen is Hawed not because it is too low to account 

as AT&T in their lililcd transaction, but because does Bot take 

into account the of diflcrell! of spectrum. We argued this point inllumerous tliings at 

the FCC during both the AT&T-T-Mobik and AT&T-Qualcumm proceedings. 

In both of those cases, as well as in this proposed deal, we believe lhat if the FCC tb!lows its 

the spectrum screen transactions the Commission's 

reflect the actual in market power thllt further concentration of speet!1ull 

will produce. This mcans illllddition to tbr the amount of usablc spt'Ctrum 

held by lIny given carrier. the sereen should also account the vallie ofthcse 

in each local market has unique characteristics that rcsult in no two 

holding identical value. These dil1'ercnces lire due in Plitt to the 

pr('paigatlon characteristics orlhe spcctmm how far thcy eim carry 11 signal and how well that 

can penetrate buildings and lCITain. 

thc location of broadband spectrum is the main driving forcc ofits value. 

screens that tilt' FCC uses to measure spectrum holdings don't measurc this 

dynamic. Thesc antiquated sCI"<''Cns arc out of date they measure only f()f the square footage of 

holdings (the amount or i'VtHz) and {ail to whether the spectmn1 

holdings arc beach front, adjacen!. or have only a beach view. 

Without access to a sufficient amount spectrum, a win:less 

first-elass wireless services. It cannot scale business in a ""<"_1"""0'£'''' 

consumer demand tor wireless data. Spectrum. 

input Ill!lrkel Oil which the cntire wircless industry is built. 

As in the AT&T IT-Mobile transaction, when nollev!l1lakers 

transaction will hllrm competition or benefit the interest, 

wireless and ask questions :lbout the fnturc Df(ISll't:CliS 

consolidation dcal represents over the essential input 

regard our position is consistent. 

Any analysis ofthis transaction must take into account the value of the 

order 10 adeq!llitcly examinc Ihe concentration of market powcr that 

cannot offer 

up with 

Simply counting the total Mllz of available spectrum held by any one e~lrricr provides an 

inaccurate and distorted portrait of market power. 

2. I have concerns about potential error costs involved in government intervention, For 

example, if the FCC were to' mandate an approach for Verizon Wireless such as cel!-

splitting and it turns out that the agency is mistaken and cell-splitting is more CO'stly than 

spectrum to' aecO'mplish the same objective, that thc government will have imposed 

unnecessary costs. 

2. 
204 

• What is your view of such potential error costs and the role they should play in 

ollr analysis'? 

The FCC not III mandalc any 

manage their spectmm U"J""""~. 

carrier meet their forecasted data demands if it means 

arc pro-consumt:r aitcmatives that carrier can pursue. So, while it 

shouldn't mandale spcctmm swaps. or wi-Ii it should rt>;;:oj:t1U2:e 

that there are other to data demand apart from two companies 

to monopolize control over the finite spectnllll market 

As the FCC revie\vs license transfers il shouldn't winners and losers 

which control which bands of spectrum, but it also must avoid anointing 

!nlhis transaction, Velizon Wireless has to weaken its in the 

markets where it oftcrs at·home tiber broadband service in exell'l11§~e 

to buy the last nationwide block valuable wireless spectmm that will be 

available for the foreseeable jlllure. The result will put Verizon in control of close to a 

third of all mobile broadband spectrum measured by value, and it will Verizon and 

AT&T a combined 60 perccnl value share of this critical input market. 

Excessive control over the essential spectrum-input market will raise ban'lers to new 

entrants, inhibit the of new competitive services (0 consumers, and 

lllllmialCIV foreclose the ability ofsmall('f to mount serious to the 

incumbent twill Bell wireless comr,mli,,, 

3. Smart phones, tablets, and similar products have drastically incfCased the demand for 

spectrum in the past few years. Some estimate that global mobile traffic will increase 26-

fold between 2010 and 2015, and that this year alone over 500 million smartphones and 

tOO million tablets could be sold worldwide. 

• In light of this clear trend towards exponential use of data, do you dispute that 

Verizon Wireless does not need additional spectrum, would not put it to usc, or at 

the very least would not be exereising proper business judgment to obtain as 

much spectrum as possible'? 

No one is that this tmnsaction is f>avvy business move the 

.. ""n",,,""'" involved, or that Verit:on put the licenses in question usc. However, 

3 
205 

it is our position that the deal as currently proposed 

and does not meet the FCC's public interest standard. 

Given the 

several an!i-tru~1 com:ems 

more spectrum to market is 

up additionll! ailwaves isn'! the onlhe table 

belt)!'e makers considering the Imnsaetion should be, 

of valuable nationwide spectrum into the hands of 

Verizon, how will thll! impact the ",,,,,.,,'tit'''''ellvironl11enl forward? PflIIH"lt1",I<"T~ 

must also examine the claims about future capacity concerns, 

ealTiers have strong reason to overstate future demand and understate their 

such demand methods that do not harm ,'ntn,"'t1t,,,,, 

We believe it's """""!mlf for the FCC to pay llttcntion 10 how much spectrum one 

company is pennillcd to own and how that l'f"mn~~ti!i()n and consumers. 

In the mcantime, if Vcrizon !aces spectrum constraints, it can !bllow the same ~ml!""'l{,' 

that other carriers with much less spcctmm have been employing witi offloading, 

speetmm swaps, and more efficient usc spectrum (e.g. ,,,",1I1I""'!'. 

2G spectrum lor more efficient 4G services). 

If the FCC docs decide to enable a marketplace for mobilc service by 

two companies control over the spcctmm market, it is then the responsibility of the 

fedcral govemmen! to ensure consumers arc protected from supra-competitive ratt'S 

through industry-widc mles and reg:UI~ltl!lI!lS. 

4. At the hearing, you stated that "the cable companies ... have shown that they relllly want 

to be involved in the wireless market .. [however] there arc lots of ways for them to do 

that which isn't harmful to consumers." I understand that the mobile virtual network 

operator ("MVNO") provisions of the agreements between the cable companies and 

Verizon Wifeless will allow the cable companies to potentially create their OVlll1 wireless 

offerings in the near future. 

• What is your view of the MVNO and how does its inclusion in the agreements 

affect your analysis of those agreements? 

While the Joim 0,'·"" .. """,,, i\.!2fC:ClIlcnts 

nnn",,,m,, that could result in thc eable companies tJe(;onrung 

Wireless network in the futllre. tbr now thesc eOII1111'tlllleS 

Verizon Wireless-branded serviccs. In olher al the Olliset 

cab!.! arc their own customcrs into Velizon 

4 
206 

contracts in """-i1:m.,,, for an as:\umncc won't facc "P';"'''''' from V erizon FiOS in 

the video and broadband at-home markct 

have staled the ~n/NO agreement could allow t.he cable "".111"''-'"'"'' to 

in the future, hut without the tcrms of 

,"""""'ni,,'~ will 

<'""mv",." risks and costs 

it in the short,run, even an MVNO strategy 

company and consumcrs in the 

terms ofthc MVNO agrcements arc not illS our 

have access to a "'nation,wide" wireless service component 

will the market division scheme have 

which insulat.es them from 

FiOS service. 

5 
207 

RESPONSES BY RANDAL MILCH TO QUESTIONS FOR THE RECORD

Verizon Communications' Response to 

Sen. Kohl's Follow-Up Questions for the Record for Hearing on 

"The VerizonfCable Deals: Harmless Collaboration or A Threat to Competition and 

Consumers?" 

April 19,2012 

For Randy Milch 

I. One very interesting facet of this deal is its timing. Verizon's deals with the cable 

companies were announced last December, just days before AT&T and T-Mobile announced that 

they abandoned their proposed merger. Your competitors suspect that these deals were 

deliberately reached at a time when T-Mobile was not free to bid on this spectrum. T-Mobile's 

FCC filing states "it is likely no coincidence that Verizon Wireless signed this deal while the 

AT&TfT-Mobile transaction was still pending, so that T-Mobile was unable to compete to 

purchase this spectrum." What is your response? Did the timing of the deal have anything to do 

with your desire to kecp this spectrum out of the hands of T -Mobile? 

As we explained in detail in our FCC filings, the traffic on our network continues to grow 

rapidly as customers continue to use new sCIYices, applications and devices. As a result, 

our customers need access to more spcctrum in the near term, and will begin to 

experience congestion in a number of major market as early as 2013 and in a number of 

others by 2015 without it. Since it takes years, not months, to put spectrum to work for 

our customers, we needed to buy the spectrum as soon as we could negotiate a deal that 

made sense. Verizon Wireless did this deal to get needcd spectrum, not to keep spectrum 

out ofT-Mobile's hands. 

There simply is no connection between the AT&TfT-Mobile saga and Verizon Wireless' 

purchase of A WS spectrum. Deutsch Telekom had made it elear it hoped to exit the U.S. 

market in public statements and by negotiating a deal to sell T-Mobile to AT&T. As 

indicated at the hcaring, the negotiations to purchase the spectrum were protracted and 

began well before there was any indication that the Department of Justice would file a 

lawsuit to block the proposed acquisition. Verizon Wireless had no way of knowing that 

AT&T and T -Mobile would not proceed with their deal. 

') Verizon Wireless and its cable partners have agrecd to establish ajoint venture to 

develop technologies to integrate wirelcss and wire line services - creating seamless Internet 

connections between consumers' TVs and their cell phones or iPads. We must be especially 

cautious here because this means that top cxecutives from both of your companies - competitors 

for pay TV customers - will mect regularly and work vcry closely together and in ways that 

could compromise your current or future competition. Investment in technology is generally 

good for consumers, but the concern here is that the joint venture will develop proprietary 

technology, and limit its content to platforms meeting standards set to that proprietary 

technology. Or, it might eliminate your incentives to compete against each other for future 
208 

products and services. Can you give us any assurance that this won't happen with the joint 

venture? 

Response: 

Our innovation venture is a procompetitivc collaboration among Verizon Wireless and 

ccrtain cable companies, narrowly targetcd at creating new technologies to integrate 

wireless and wireline. Many companies, including Apple and Google, already have 

developed technology to integrate wireless and wirelinc services, and this venture will 

add to customer choice and spur furthcr innovation. 

As I mcntioned in my testimony, Verizon's experience is that closed platforms do not 

typically succeed in the marketplace over the longer term. As for the concern that the 

joint venture will limit "its content" to proprietary platforms - the joint venture does not 

own or control any content, and any rights held by the underlying companies to content 

arc detennined by the programmers. 

3. Verizon most dircctly competes with the cable companies through its hOS 

product, but FiOS is only sold in 14% of the cable companies' footprint, so why not just carve 

out the FiOS territory from the joint marketing agreements? Would you agree to do that as a 

condition ofthe Justice Dcpartment permitting this deal? 

Response: 

Verizon Wireless wants to provide convenient and innovative converged products to the 

85% or so of its customers who do not live in FiOS areas. In order to do so, we partnered 

with some ofthc cable companies who could give us that rcach. To make it worthwhile 

for Verizon Wireless' partners to invest resources and time into this deal, they needed to 

know that they could use Verizon Wireless to serve all of their customers, not just those 

outside of FiOS areas. 

There is no need for a condition here, since the deals don't create a harm to competition. 

Indeed, we're confident that customers will continue to choose FiOS, since FiOS Internet 

and video are superior products to the offerings from thc cable companies - witness all 

the awards we've won, and the fact that we've taken nearly a third of cable's customers 

away where we offer FiOS. But, if for whatever reason, a customer prefers the cable 

service, then we would like them to have a new way to buy Verizon Wireless - which we 

also believe offers a superior product. Consumers will decide. 

4. We understand that FiOS now accounts for over 60% of Verizon's consumer 

wireline revenues. Yet Verizon decided in Novembcr 2009 to halt cxpanding FiOS into any 

new markets. Given the growth in the importance ofFiOS to Verizon overall, wouldn't we 

expect Verizon to reconsider this decision in the future, if not for the joint marketing agreement? 

Put another way, doesn't your wireless subsidiary'S agreement with the cable companies 

substantially reduce the chance you will ever decide to build FiOS in new areas? 
209 

Response: 

Well before the companies began negotiating thc arrangements at issue, Verizon decided 

to continue building out FiOS only where its franchise agreements require it to do so, an 

expansion process that won't be completed until 2018 and will require the ongoing 

expcnditure of significant additional capital. 

As Verizon has noted publicly, it is focusing its resources on increasing its market share 

against the cable and DDS companies in existing franchise areas, while generating 

necessary free cash flow by cutting back on capital expenditures. Verizon has no plans to 

expand FiOS into new franchise areas. A future decision to reverse the current course 

and invest substantial new capital in FiOS won't be governed by the possibility of 

gaining small, one-time commissions from any customers VZW can sign up for cable 

companies. 

5. We have heard reports that Verizon is "slow walking" the build out of FiOS in its 

local franchise areas. Will you commit today to fully complete your buildout in an expeditious 

manner in areas you have already obtained franchise authority? 

Response: 

Verizon is making investments in its consumer wireline network that are unmatched by 

any other wireline carrier. Verizon is complying with its franchise build requirements 

and will continue to do so, 

6. Do the commercial agreements between the cable companies and Verizon 

Wireless have any term or time limit? If so, what is that term? 

Response: 

The terms of the agreements confidential. We have said publicly that after four years, the 

cable companies may elect to become resellers ofVerizon Wireless service. 

7. It has been reported in the media, and was alluded to at the hearing, that the 

commercial agreements between Verizon Wireless and the cable companies were exclusive. In 

what sense are the agreements exclusive? What does the exclusivity cover? 

Response: 

The terms of the agreements are confidential, but any exclusivity arrangements in the 

agreements arc necessary to ensure that the parties commit sufficient resources to the 

commercial arrangements to bring new products to market and offer competitive bundles 

of telecommunications services. The agreements do not constrain Verizon Telecom's 

ability to market its services or work with other partners. 
210 

8. Under the commercial agreements, what is the amount of commission payment 

that Verizon Wireless will receive from the cable companies for selling Verizon Wireless 

services? Can this amount change during the life of the agreements? 

Response 

The commercial terms are confidential. As I noted during the hearings, when Verizon 

Wireless sells cable services, it receives the payment of a small onc-time commission for 

qualified sales. The compensation amount could vary in future years based on market 

conditions. 

9. At one point during the hearing, you noted that the deals we are examining rue 

with Verizon Wireless, not Verizon, implying that Verizon's incentive to compete will be 

unaffected by these deals. But Verizon owns 55% of V crizon Wireless, Verizon appoints five 

members of Verizon Wireless's nine-member board of directors, including Verizon Wireless's 

Chairman and CEO, and its Exccutive Vice President and Chief Financial Officer, and Executive 

Vice President and Chief Marketing Officer. I also understand that Verizon Wireless links longterm compensation to performance of its parent company, Verizon. It has also been reported that 

Verizon Wireless and Verizon share a single Political Action Committee, the so-called "Verizon 

IVerizon Wireless Good Governmcnt Club." And Verizon Wireless accounted for 63% of 

Vcrizon's aggregate revenues in 2011. Under these eircumstances, you don't contest the fact 

that Verizon and Verizon Wireless are distinct companies whose interest are not, at the very 

least, intertwined and closely aligned with one another, do you? 

Response: 

As I noted in my testimony, Verizon's wireline Telecom unit is not a party to the 

agreements and is not subject to any rcstrietions under the commercial agreements. This 

fact is directly relevant here because Verizon has every incentive to aggressively market 

its FiOS services in competition with the cable companies in order to earn a return on the 

billions of dollars it has invested in FiOS. The potential to earn a few hundred dollars in 

a one-time commission cannot possibly offset the incentive to market FiOS aggressively 

in order to earn potentially thousands of dollars in recurring revenues. [n addition, 

Verizon owns only 55% ofVerizon Wireless, which means that only 55% of any 

commission payments paid to Verizon Wireless via the agency agreements actually 

accruc to the benefit of Verizon Communications, whereas 100% of the benefits from 

FiOS do so. 

10. Under current FCC rules, The SpectrumCo spectrum licenses that Verizon 

Wireless seeks to acquire have a partial build out requirement of 15 years, with a complete build 

out required in 25 years, from date of issuance of the spectrum licenses. Thus a complcte build 

out won't even be required for this spectrum until the latter half of the 2020s. Your competitors 

have accused Verizon Wireless of seeking to "warehouse" this spectrum in order to keep it away 

from Verizon Wireless's competitors. You testified at the hearing that Verizon Wireless needs 

this spectrum today to meet the burgeoning demand for spectrum caused by consumers' use of 
211 

smartphones. In light of this, would you agree to build out this spectrum much sooner, say in 5 

years? If your answer is no, why not'? 

Response: 

We don't believe that additional conditions need to be placed on this spectrum. 

As I said in my testimony, Verizon Wireless is the most efficient user of 

spectrum, and has invested heavily in making efficient use of that spectrum by 

using technologies such as cell splitting. But based on intensive engineering 

analysis, we've determined we'll reach capacity constraints in key major markets 

as early as 2013 and many more by 2015 - even with continued planned intensive 

investment in cell-splitting, small cells, and the like. We have provided extensive 

documentation to the FCC explaining why our existing spectrum assets are 

insufficient to meet the exploding growth for data. We have no choice but to put 

this new spectrum to work quickly. 

II. (a) In response to concerns cxpressed at the hearing about consumers' privacy 

and possible sharing of consumer infonnation between Verizon Wireless and the cable 

companies, you stated that Verizon Wireless would keep consumers' bills separate even if 

Verizon Wireless sold a cable service (and vice versa). But ifthe bills are separate, where is the 

convenience in a "quad play" (i.e., video, intcrnet access, landline phone, and wireless service)? 

Wouldn't consumers paying for all of these services on one bill be a key part of the consumer 

convenience of a quad play? 

Response: 

I believe I said in the hearing that both Verizon Wireless and the cable companies have 

robust privacy policies and significant legal obligations that serve to protect our 

customers' infonnation. The convenience of a single bill is the ability to pay that bill 

once - an arrangement that can be accomplished without inappropriately sharing 

customer infonnation. Providing one bill certainly would be a customer convenience; 

providing customers with the easy ability to buy services with promotions and/or 

discounts also is a convenience. 

(b) In a December 7, 2011 investor call with UBS Securities, Verizon CEO Lowell 

McAdam stated that consumers don't want separate bills for each service because it "drives them 

crazy." He added that "getting to one bill and having account-level pricing is the right way to 

go." So is it possible that the idea that consumers get separate bills from Verizon Wireless and 

the cable companies for services they cross-sell as you stated in your testimony change in the 

future? 

Response: 
212 

Verizon Wireless and the cable companies arc not offering a consolidated billing option 

now, and have yet to decide whether to do so going forward. This may change, but 

whether it does will depend on a variety of factors as the agency relationships develop 

over time. 

12. You testified that consumers prefer a quad play and that consumers like to buy 

wireless together with the other services. Could you provide markcting research or other 

studies that support this? 

Response: 

I actually testified that Verizon Wireless wants to offer convenient bundles of services 

"to those customers across the United States who want them." Some customers prefer to 

buy a bundle, and some don't. There certainly are recent reports by analysts that seem to 

indicate demand for bundled services including wireless is beginning to accelerate. See, 

e.g., MIKE JUDE & GINA VILLANUEVA, FROST & SULLIVAN, CONSUMER COMMUNICATION 

PREFERENCES: 2012 13 (Feb. 2012). But it is also fair to say that, to date, Verizon has not 

seen great demand specifically for bundled wireless and wire line services, although it 

obviously believes, as do many analysts, that demand will accelerate, particularly if the 

innovation joint venture can create a wireline/wireless product that our customers want to 

purchase. 

13. (a) In your March 22, 2012 letter to Senator Lee and me correcting your 

testimony at the hearing that Verizon Wireless does not sell FiOS in its stores today, you stated 

that "in a number ofVerizon Wireless stores, Verizon Telecom has placed FiOS kiosks, which 

are manned by representatives ofVerizon's wireline business." Can you be more specific how 

many Verizon Wireless stores have these FiOS kiosks, and what percentage ofthe FiOS 

footprint do these stores represent? 

Response: 

Verizon Wireless has 1700 store fronts. Verizon Wireless has 306 store fronts in Verizon 

Telecom's FiOS footprint. In 96 of these store fronts Verizon Telecom uses a third-party 

contractor to operate a FiOS fixture, sometimes known as a "kiosk." In four ofthese 

stores Verizon Telecom uses a third party contractor to conduct FiOS business in the 

Verizon Wireless store with a tablet computer through which they can receive customer 

orders. Verizon Telecom thus has kiosks today in roughly 113 of Verizon Wireless stores 

within the FiOS footprint. 

(b) In your letter, you state that "[nlo decision has been made as to maintaining these 

kiosks once the cross-marketing agreements are implemented in the FiOS footprint." If in fact 

these kiosks are withdrawn, won't this represent a real example of a loss of competition between 

Verizon and the cable companies? Why won't you commit to keeping these kiosks in place? 

Response: 
213 

Kiosks in Verizon Wireless stores have not been a substantial source of sales for Verizon 

Telecom, and indeed Verizon Telecom has decreased the number ofFiOS kiosks in 

Verizon Wireless stores by over 40% over the last two years for reasons unrelated to the 

deals with the cable companies. FiOS market share gains have continued unabated even 

as kiosks have been withdrawn. 

Precisely because - independent of these deals and for good business reasons - Verizon 

Telecom has been decreasing its kiosk presence, any commitment to force Verizon 

Telecom to keep particular kiosks open would more likely harm FiOS than help it. 

(c) In defending this deal, you have pointed to the consumer benefit of having 

wireline representatives in your wireless stores. If they provide such a consumer benefit, why 

did you not have any Verizon wireline representatives in your Verizon wireless stores, at the 

very least within your FIOS footprint? 

Response: 

I don't believe we have defended this deal by noting the customer benefit of having 

wire line representatives in VZW stores. 

We have had representatives for FiOS services in some Verizon Wireless stores. As 

noted above, Verizon Telecom has reduced its presence in Verizon Wireless stores 

indcpendently of the deals with these cable companies, so the benefit of having these 

kiosks is not always clear. And some stores simply are not suited for having a staffed 

Verizon Telecom presence: There are logistical considerations such as the minimum 

allowable square footage ofa Verizon Wireless store that must be met before Verizon 

Telecom can have a presence in the store. 

14. How will your commercial agreements with the cable companies affect your 

pricing, marketing or promotion of FiOS in areas where you compete with the cable companies 

that arc parties to these agreements? If your answer is that there will be no such effect, how do 

we know that will be the case? Arc you willing to make a commitment to the DOJ on this point? 

Response: 

As I mentioned in my testimony, Verizon Telecom has every incentive to continue to 

compete vigorously with the cable companies on pricing, marketing and promotion of 

FiOS, and plans to spend hundreds of millions of dollars this year to market FiOS. The 

Department of Justice has inherent authority to investigate if it comes to believe that 

Verizon is acting in a manner that harms competition. 

15. (a) Beyond its FiOS service, Verizon also competes with the cable companies for 

Internet service via DSL using traditional copper landline phone wires. Will the commercial 

agrcements affect in any respect this competition, and the pricing, marketing, or promotion of 

DSL in the areas where you compete with the cable companies that are parties to these 

agreements? 
214 

Response 

The commercial agreements will not affect the pricing, marketing or promotion of DSL, 

which faces a variety of broadband competitors. 

(b) Some analysts and industry observers believe that Verizon will abandon or sell off 

its DSL services in the future. What are you plans for your DSL service in the future? Will 

you continue to offer it to the same extent you do now? 

Response: 

Verizon Telecom intends to otTer DSL services so long as its DSL service remains 

competitive in the marketplace and earns a return for shareholders. In some areas where 

V crizon offers FiOS services, it does plan to sign up new stand-alone Internet customers 

for FiOS only, and hopes to upgrade existing customers to FiOS over time. In addition, 

Verizon may upgrade DSL customers who experience significant customer scrvice issues 

to FiOS. 

16. Our subcommittec has hcard concerns that the commercial agreements between 

Verizon Wireless and the cable companies could contain provisions allowing the parties to 

jointly negotiate for programming content, or might lead to such agreemcnts in the future. The 

concern is that, if so, the parties to these deals could obtain lower rates for content because of 

volume discounts that competitive pay TV services would not be able to obtain. Do the 

commercial agreements contain any provisions allowing Verizon Wireless and the cable 

companies to jointly negotiate for programming? If so, won't this disadvantage competitive pay 

TV providers? If not, does the agreement allow for such joint negotiations, or do you anticipate 

such negotiations to occur in the future? 

Response: 

None of the commcrcial agreements has provisions relating to the joint negotiation of 

programming or the acquisition of content. Thus, while it is true that the programmers 

are the ones who hold all the cards and who have becn increasing content costs every 

year, these agreements do not address creating a counterweight to their powcr. 

17. One of the key ways of increasing capacity on wireless networks is to offload 

demand onto WiFi networks, such as those the cable companies and Verizon have built into 

consumers' homes. Will you eommit to offcr WiFi offload on an open, non-discriminatory 

basis to other carriers not parties to the commercial agreements? If not, why not? 

Response: 

Tens of millions of people have put a WiFi hotspot in their homes. FiOS subscribers, for 

example, have the ability to make their homes a personal WiFi hotspot using their FiOS 

router or use an off-the-shclfbase station produet from companies such as Cisco and 
215 

Apple. Verizon Wireless has not built its own WiFi network, but Verizon Wireless 

smartphones and tablets allow customers to choose whether to use the Verizon Wireless 

network or a WiFi hotspot at any point in time. Whether customers choose to use a 

hotspot to offload traffic from the wireless network is up to them. 

18. Do you have any response to the suggestions of Prof. Wu, and Mr. Kelsey and 

Berry given at the hearing as to possible conditions the Justice Department or FCC ought to 

place on your deals with the cable companies, should the deals be approved? 

Response: 

Verizon does not believe such conditions are justified since the agreements do not lessen 

competition or harm the public interest. And in addition to being substantively flawed, 

the proposed conditions reflect those parties' separate regulatory agenda and the issues 

they raise are the subject of separate industry wide proceedings under consideration at the 

FCC and in the courts. 
216 

Verizon Communications' Response to 

Questions for the Record from Senator Charles E. Schumer 

Hearing of the Senate Judiciary Committee, 

Subcommittee on Antitrust, Competition Policy, and Consumer Rights: 

"The Verizon/Cable Deals: Harmless Collaboration or a Threat to Competition and 

Consumers?" 

April 19, 2012 

Questions for Randal Milch, EVP & General Counsel, Verizon Communications, Inc. 

FiOS is the most advanced broadband delivery platform, making Verizon the only major U.S. 

telecommunications company to draw fiber all the way to homes, and the only one to offer 

broadband speeds approaching those available in Japan and South Korea. Verizon has touted the 

importance of broadband deployment for job creation, economic development, and 

improvements in education, health care, and public safety. 

I have been a strong supporter of FiOS's buildout of its fiber-optic network in Ncw York, and 

believe that Verizon should be applauded for its great work in bringing both jobs to 

communications workers and meaningful competition to cable customers in many of the major 

population centers of the state. However, I am interested in how this deal will affect FiOS in 

New York. Specifically, 

I. I understand that under the terms of the commercial agreements, Verizon Wireless stores 

can sell Comcast or Time Warner cable services including in markets where FiOS is 

offered. 

a. How does this agreement affect Verizon's marketing strategy for FiOS? 

Response: 

The agreements at issue are between Verizon Wireless and the various cable 

companies, and do not bind in anyway Verizon Telecom, which markets FiOS. These 

agreements do not affect our marketing strategy for FiOS. As I said in my testimony, 

Verizon Telecom is spending hundreds of millions of dollars marketing FiOS this 

year, and New York in particular is a critical market for us. 

b. Can FiOS continue to increase its market share ifVerizon Wireless stores are 

marketing services that compete directly against FiOS? 

Response: 

I am confident that in any side-by-side comparison, customers will choose FiOS over 

cable, just as they have to date. Additionally, FiOS has continued to increase market 

share against cable cven though it has decreased by more than 40% the numbcr of 

kiosks in Verizon Wireless stores over the last two years. 
217 

c. How do the Joint Marketing Agreements affect Verizon's incentives to build out its 

fiberoptic pipe to compete? 

Response: 

The agreements with the cable companies do not change Verizon Telecom's 

ineentives to build or not build FiOS. Well before the companies began negotiating 

these arrangements, Verizon decided to continue building out FiOS only where its 

franehise agreements require it to do so, an expansion process that won't be 

completed until 2018 and will require the expenditure of significant additional capital. 

As Verizon has noted publicly, it is focusing its resources on increasing its market 

share against the cable and DBS companies in existing franchise areas. Verizon has 

no plans to expand FiOS into new franchise areas. A future decision to reverse the 

current course and invest substantial new capital in FiOS won't be governed by the 

possibility of gaining a few hundred dollars in commissions from any customers 

VZW can sign up for cable companics. 

2. The 1996 Telecommunications Act reduced regulation based on the assumption that 

cross-platform competition would drive innovation, lower prices, and new services to 

benefit consumers. Just two years ago, Verizon touted the importance of the "competitive 

rivalry betwecn cable companies and tel cos" resulting in benefits to consumers of "better 

broadband services and lower prices." 

a. What is your view of that rivalry now? 

Response: 

The "competitive rivalry between cable companies and telcos" - Verizon Telecom is 

a "tel co" continues vigorously. Both thc cable companies and Verizon have made 

tens of billions of dollars in capital investments to compete with each other, and the 

quantum leap from dial-up Internct services in 1996 to FiOS today is evidence that 

the rivalry has yielded and continues to yield - great consumer benefits. 

b. How do the joint marketing agrecmcnts affect that view? 

Response: 

They do not. The agreements are bctwecn Verizon Wireless and the cable 

companies. Verizon Telecom has every incentive to grow its business. 

3. In recent years Verizon has sold otfmany of its rural lines, first to FairPoint in Maine, 

New Hampshire, and Vermont, and later to Frontier in 14 states. Does this deal affect 

Verizon's plans for its wi reline business in the future? 

Response: 
218 

These deals do not affect Verizon's plans for its wireline business. 

4. After this deal was announced, I understand that Verizon announced the end of its 

relationship with DirecTV. 

a. Was this announcement related to the spectrum deal? 

Response: 

As a clarification, Verizon Telecom continues to sell a bundle of DSL, DirecTV and 

voice services. 

As we've noted publicly, Verizon Wireless did do trials with DirecTV for a 

technology using LTE. We completed those trials as scheduled and determined after 

careful evaluation not to move forward with DirccTV - all before the deals at issue 

were completed. 

b. Do the Joint Marketing Agreements contain exclusivity provisions that require the 

parties to terminate similar agreements with other companies? 

Response: 

While the terms of the agreements are confidential, Verizon Wireless and Verizon 

Tcleeom have not terminated any commercial relationships pursuant to the 

commercial agreements with the cable companies. 

c. Would exclusivity provisions be consistent with vibrant compctition for 

telecommunications or satellite finns? 

Response: 

Yes. Exclusivity provisions can under the right circumstances permit parties to 

commit greater resources to going to market togethcr with innovative bundled 

products, secure in the knowledge their partners will not be working with other 

parties. 
219 

Verizon Communications' Response to 

Questions for the Record from U.s. Senator AI Franken 

for Randal Milch, Executive Vice President and General Counsel, Verizon 

Communications, Inc. 

April 19,2012 

L Please provide a list oflocations where Verizon has a video franchise; where 

FiOS TV is available; where Verizon is still in the process of deploying FiOS; and locations 

where there is no existing plan to deploy FiOS. 

Response: 

Verizon Telecom has video franchises in 1,357 franchise areas, including franchise areas 

in California, Connecticut, District of Columbia, Delaware, Florida, Massachusetts, 

Maryland, New Jersey, New York, Pennsylvania, Rhode Island, Texas, and Virginia. Of 

these video franchises, Verizon offers FiOS TV in 1,321 franchise areas, and is still in the 

process of deploying the FiOS network in 379 franchise areas. Verizon currently passes 

about 16.5 million premises and plans to pass approximately 18 million premiscs. 

2. Verizon has previously stated that wireless and FiOS represent the two greatest 

engines for growth and increased revenue per customcr. On March 25,2012, Citi Investment 

Research & Analysis wrote: "We believe Verizon's lower wircline margin relative to most of its 

peers represents an opportunity for improvement partly by increasing FiOS scale with time ... " 

Given this positive financial asscssment of FiOS, it seems unusual that Verizon would not 

contemplate continuing to build out FiOS in currently unserved areas, especially ifthere is 

adequate demand. Can you please explain (a) why Verizon has no further plans to build out 

FiOS based on demand; and (b) why Verizon has decided not to build out FiOS to cities such as 

Baltimore, Boston, Buffalo, Albany, Syracuse and other urban, metropolitan areas where there is 

high population density? 

Response: 

Verizon's wireline margins are precisely the issue being addressed by Verizon's current 

FiOS strategy, publicly announced well before this set of deals with this group of cable 

companies. In particular, beginning in mid-2009, Verizon Telecom announced that it had 

no present plans to expand the FiOS footprint. On a July 27, 2009 earnings call, for 

example, Verizon Telecom CFO John Killian stated that Verizon Telecom was "on track 

to be substantially finished with [FiOS] deployment by the end of 20 I 0, which has 

positive implications for both capital spending and free cash flow." And in October 26, 

2009, Mr. Killian again stated that Verizon Telecom would "substantially complete [its] 

FiOS build program by the end of 20 I 0, which alone should result in about $2 billion of 

capital savings each year." As Mr. Killian noted, Verizon needed to generate free cash 

flow, and has done so by continuing its FiOS build only where necessary to meet 
220 

franchise obligations and focusing instead its resources on markct share gains against 

cable and DBS in arcas where capital had been spent. 

Specifically as to your question (b): V crizon began offering FiOS services in 2005 with a 

plan to pass a certain number of premises. To meet this goal, Verizon started negotiating 

with many local franchising authorities in urban, suburban, and rural areas (a timeconsuming and expensive proccss in and of itself). Negotiations with some local 

franchising authorities proved slow to reach fruition. Once franchise agreements had 

been reached covering the number of premises in Verizon's plan, Verizon ceased seeking 

additional franchise agreements where it had yet to build any FiOS network. 

3. During your testimony, you stated that Verizon Wireless stores do not sell FiOS. 

We have received reports to the contrary. Can you please verify that is indeed correct? Do these 

stores market FiOS products or offer other information about FiOS to customers seeking wireless 

services? 

Response: 

The day after the hearing, I sent a letter to the Committee clarifying my remarks. A copy 

of that letter is attached. 

4. Will Verizon Wireless commit to not market or sell the cable company's 

broadband and video products in locations where Verizon FiOS is available to customers? 

Response: 

Verizon Wireless does not believe it is necessary or appropriate to make such a 

commitment. 

5. During an October 21,2011 earnings call, Verizon's Chief Financial Officer 

Francis Sharnmo said: "By further penetrating existing [FiOS] markets, we will enhance our 

capital and operating efficiency and improve overall returns." Plcase explain how the joint 

marketing agreements do not alter or reduce Verizon's incentives to continue to maintain and 

build out FiOS and other wire line services. 

Response: 

Mr. Shammo's remark is consistent with the earlier statements from two years ago by 

former Chief Financial Officer John Killian noted above. Verizon will generate 

improved returns by further market share gains against cable and DBS in areas where 

Verizon already has spent capital. The joint marketing agreements don't alter that 

incentive. 

Verizon's shareholders have invested $23 billion into FiOS, and those shareholders are 

only now beginning to see a return on that massive investment. FiOS now makes up 61 % 
221 

of Verizon landline consumer revenues, and FiOS revenues grew 18.2% year over year. 

In just two years, we've grown video penetration in existing FiOS areas from 25.4% to 

31.5%, and our Internet penetration from 29% to 35.5%. We've no intention of slowing 

down in our competitive efforts - indeed our shareholders have every economic incentive 

for us to push ahead. 

6. Verizon has touted the importance of broadband deployment for job creation, 

economic development, and improvements in education, health care, and public safety. 

a. Doesn't this deal create further incentives for Verizon to sell off more rural lines, 

reducing vital broadband services in underserved areas? 

Response: 

No. I would note, however, that there is no basis for equating the sale oflines 

with a reduction ofbroadband services. Indeed, purchasers with greater focus on 

rural markets may more effectively provide broadband in underserved areas. 

b. By reducing Verizon's incentives to build out its FiOS network to cities with 

significant low-income and minority populations, doesn't this transaction increase 

the digital divide? 

Response: 

No. As I previously stated, Verizon determined to stop expansion of FiOS to 

new, unbuilt areas in 2009, long before these deals were contemplated. 

7. Do the joint marketing agreements contain exclusivity provisions that require the 

parties to terminate similar agreements with other companies? 

Response: 

While the terms of the agreements arc confidential, Verizon Wireless and Vcrizon 

Telecom have not terminated any commercial relationships pursuant to the loint 

Marketing Agreements. 

8. During the hearing, I asked you whether Verizon would commit to opening up 

any of the technology and intellectual property that your companies create as part of your joint 

venture to your competitors at fair, reasonable, and non-discriminatory rates. Can you please 

explain in detail why you do not think this would be an appropriate condition to place on this 

transaction? 

Response: 
222 

As I mentioned at the hearing, all ofthe Joint Innovation Venture ("Venture") members 

get a license to the Venture's products, as does FiOS. Other companies are welcome to 

negotiate licenses with the Venture if they want to use the Venture's innovations. We 

don't know yet the terms on which such licenses will be negotiated. The Venture doesn't 

have a single patent yet, and we don't know if it ever will generate significant intellectual 

property (although we quite obviously hope it does). Many other players Apple, 

Google, patent aggregators, others hold patents that read on wireless/wireline 

integration technology, so we're a new entrant into the patent market. To the extent we 

create something new, we deserve protection for it, and the same freedom enjoyed by 

those other players to figure out the optimal terms of any licenses. 

9. Has Verizon entered into similar commercial marketing agreements with 

Cablevision, Charter, or other major cable operators? 

Response: 

No. 

10. Several Verizon employees have reported that Verizon has ceased hiring 

engineers and technicians to work on its copper lines. They think this means Verizon has 

already abandoned its copper infrastructure-and they are worried that this means their jobs are 

at risk and that Verizon is quickly shifting its resources to wireless and away from wireline. 

Please explain what impact you think this transaction will have on jobs in the next year, two 

years, and five years. Do you anticipate laying off any Verizon employees? 

Response: 

These transactions do not affect Verizon Telecom's business plans with respect to its 

copper infrastructure. 
223 

Verizon Communications' Response to 

Questions for the Record for Verizon-Spectrum Co. Hearing 

From Senator Lee 

April 19, 2012 

Randal S. Milch, Verizon (Executive Vice President & General Counsel) 

1. At the hearing there appeared to remain some degree of confusion about Verizon 

Communication's incentives to continue marketing FiOS in light ofVerizon Wireless's 

agreements with the cable companies. 

• Could you please explain the incentives Verizon Communications has to market 

FiOS and whether the portion of a commission Verizon Communications would 

receive from the sale of cable contract would affect those incentives? 

Response: 

Basic economics explain why the Commercial Agreements will have no 

discernible impact on Verizon Telecom's incentives to market FiOS. 

First, Verizon has invested over $23 billion in capital into its FiOS buildout, and 

grown the FiOS business from nothing in 2004 to an $8.2 billion annual revenue 

business today. Verizon Telecom currently has approximately 4.2 million FiOS 

TV and 4.8 million FiOS Internet subscribers. FiOS revenues now represent 

sixty-one percent ofVerizon Telecom's wireline consumer revenues, and grew 

18.2% over the last year alone. And FiOS is growing by taking market share 

from its cable competitors - FiOS increased its market penetration in both TV and 

Internet by nearly 4% over the last year alone. 

Furthennore, any commissions received by Verizon Wireless for sales ofMSO 

services represent a fraction of the net present value of a V crizon Telecom FiOS 

subscriber. It is highly unlikely that the gain of these commissions (only 55% of 

which would flow to Verizon Communications) would offset the loss of 

thousands of dollars of recurring revenue that Verizon could earn from a FiOS 

customer. Indeed, there's no guarantee that Verizon Wireless would be the party 

signing up new cable customers to bundles, and it only receives a commission if it 

drives the sale. 

In what ways, if any, will this agreement increase FiOS's ability to compete with 

the cable companies? 

Response: 

FiOS will have access to the Joint Innovation Venture's technology, ifit chooses 

to usc it, and thus can gel access to technologies it might otherwise have a hard 
224 

lime developing on its own. FiOS also is free to use other wirelesslwireline 

technology if it proves superior. 

2. At the hearing, I understand Professor Wu to have suggested that Verizon 

Wireless's agreements with the cable companies might decrease Verizon Wireless's incentives to 

compete with cable for high speed internet offerings. 

• Is Verizon's Wireless's internet offering a viable competitor to wire line internet? 

Response: 

Customers will continue to determine for themselves the communications services 

that they want. There is no "one size fits all" model. For some consumers, a 

wireless device is all they want and need, and the speeds delivered by wireless 

broadband services are adequate for their needs. Other customers may want or 

need to have even higher speeds obtainable over certain wireline broadband 

products and may use these products as their primary means of voice and data 

communications, with wireless as a supplement. Every company in the 

communications space needs to be nimble and responsive to customers or risk 

losing these customers to competitors. It will be consumers, not companies, who 

will decide the way products are used. 

How will your agreements with Comcas! impact your incentives with respect to 

your internet service offerings? 

Response: 

They will have no impact. Verizon has increased its FiOS Internet penetration to 

35.5% at the end oflast year, up from 29% two years earlier. Verizon anticipates 

continuing to win customers with its superior fiber-based offering, and will reap 

financial benefits by doing so. 

3. Some have expressed concerns that Verizon Wireless does not need additional 

spectrum. These argumcnts include assertions that because Verizon Wireless is efficient with its 

spectrum, currently has spectrum it is not using, and can make its current spectrum even more 

efficient by means of technologies such as cell-splitting, the company is in fact wcll positioned 

on spectrum for the foreseeable future. Mr. Derry, who was at the hearing, has stated that 

Verizon holds as much as 44 MHz of unused spectrum in many markets and would hold up to 72 

MHz of unused spectrum in those markets after this transaction. 

• What is your response to these claims, and what is Verizon Wireless doing to 

ensure that excess spectrum is put to good use in areas where it has a surplus? 

Response: 
225 

It is true Verizon Wireless is the most efficient user of spectrum, and has invested 

heavily in making efficient use of that spectrum by using technologies such as cell 

splitting. But based on intensive engineering analysis, we've determined we'll 

reach capacity constraints in key major markets as early as 2013 and many more 

by 2015 - even with continued planned intensive investment in cell-splitting, 

small cells, and the like. We havc provided extensive documentation to the FCC 

cxplaining why our existing spectrum assets are insufficient to meet the exploding 

growth for data. We have no choice but to put this new spectrum to work quickly. 

Finally, Verizon Wireless has been an active seller on the secondary spectrum 

market where we thought we could cfficiently rationalize our spectrum holdings. 

Verizon Wireless announced on Wednesday, April IS, 2012 that it will conduct 

an open sale process of its 700 MHz A and B spectrum licenses in ordcr to 

rationalize its spectrum holdings. The licenses cover dozens of major cities 

across the country, as well as a number of smaller and rural markcts. Molly 

Feldman, Verizon Wireless vice president of Business Development, said that 

"lp Jrovided our acquisition of A WS spectrum is approved, our open sale process 

will ensure these A and B spectrum licenses are quickly and fairly made available 

for the benefit of other carriers and their customers." 

4. At the hearing, in regards to the research and development joint operating entity, 

Senator Franken asked, "Will you commit to opening up the technology and intellectual property 

that your companies create to your competitors so that they can obtain the technology at fair 

reasonable and non-discriminatory rates?" 

• If the members of the joint operating entity were forced to license and sell any 

newly dcveloped products or technologies, how would this change your decision 

to invest capital in the research and development joint operating entity? 

Response: 

Any government-imposed sharing mandate would make it less attractive to invest capital 

in the Joint Innovation Venture, since it would reduce the flexibility of the Venture to 

most efficicntly detemline how to license any innovations. The Venture doesn't have a 

single patent yet, and we don't know if it ever will generate significant intellectual 

property (although we quite obviously hope it does). Many other players Apple, 

Google, patent aggregators, others hold patents that read on wireless/wireline 

integration technology, so we're a ncw entrant into the patent market. To the extent we 

create something new, we deserve protection for it, and the same frecdom enjoyed by 

those other players to figure out the optimal terms of any licenses. 
226 

5. At the hearing, there was some discussion about the Federal Communications 

Commission's ("FCC") spectrum screen and whether such a screen could or should be changed 

while reviewing a specific transaction and whether there is any precedent for such a change. 

• What is your view of FCC precedent for changing spectrum scrcens during a 

transaction and the propriety of such a change? 

Response: 

Since 2004, the Commission consistently has used one-third ofthc total spectrum 

the Commission has concluded is available for mobile use as the threshold for its 

spectrum screen, providing all concerned with some measure of certainty as they 

consider transactions and formulate business plans. Use of a consistent one-third 

threshold has meant that the amount of spectrum included in the screen in past 

transactions has increased over time as the Commission has made available more 

spectrum for mobile services, thus allowing the screen to essentially self-correct 

for the availability of additional spectrum. 

But some parties have asked the Commission to radically revise this longestablished view of the screen in this transaction by valuing different bands 

differently or by imposing an actual cap on spectrum holding. Such extensive 

proposed changes should not be taken up in the context of an individual 

transaction, particularly where, as here, only a very limited number of posttransaction holdings would exceed the current screen. Not only do these radical 

and sweeping changes to the Commission's long-established policy lack merit, 

but they would have broad ramifications for the industry as a whole. For 

example, proposals to weight certain spectrum holdings in the screen (by 

spectrum characteristics, auction prices, book value, or other metries) seek to 

achieve a pre-desired outcome, but would be fundamentally unworkable and 

would invite gamesmanship by parties trying to manipulate the Commission's 

review of a transaction. 

6. At the hearing, you explained that if the spectrum screens were recalculated, it 

would decrease Verizon's share of spectrum holdings because the size of the denominator would 

increase as new spectrum is included in the screens. 

• Can you please elaborate on this answer? 

Response: 

There is spectrum that is suitable even for broadband use that is not included in 

the spectrum screen. In our filings at the FCC, we noted several bands of 

spectrum that are suitable for wireless services that are not included in the current 

spectrum screen. In our filings at the FCC, we noted several bands that are 

suitable for broadband use and thus could be added. For exan1ple, there is the 10 

MHz PCS G Block, which Sprint has announced it will use for L TE. Similarly, 
227 

there is at least 104.5 MHz of BRS/EBS spectrum (in addition to the 55.5 MHz of 

BRS currently included in the screen) which Clcarwire uses. There also is 50 

MHz of MSS ATC spectrum which is not included in the screen which the FCC 

has said "could potentially enhance competition in the provision of mobile 

terrestrial wireless services." And, there is 25 MHz ofWCS spectrum, which is 

not currently included in the screen even though the FCC changed its technical 

rules to "immediately" make this spectrum available for mobile broadband 

services. Adding any or all of these bands to the spectrum screen would increase 

the "denominator" ofthc screen. But because Verizon Wireless holds none of 

these bands, the amount of spectrum it holds compared to the total amount of 

suitable spectrum would decrease. 

• Do you believe the spectrum screens are fair and proper as presently calculated? 

Response: 

The spectrum screen does what it's supposed to do, which is to provide a clear 

threshold under which aggregations of spectrum will not be considered to cause 

competitive harm. This allows businesses to plan in light of a consistent 

regulatory structure, and it makes the regulatory review process shorter, because 

of the pre-determination by the regulator of where further inquiry is necessary, 

and where it is not. In a future proceeding, if the Commission relooks at the 

spectrum available for mobile use, we'll advocate for including new spectrum in 

the screen. 
228 

RESPONSES BY TIMOTHY WU TO QUESTIONS FOR THE RECORD

Sen. Kohl's Follow-Up Questions for the Record for Hearing on 

"The Verizon/Cable Deals: Harmless Collaboration or A Threat to Competition and 

Consumers?" 

For Tim Wu 

1. At the hearing, Randy Milch of Verizon argued that the commercial 

agreements would not mean that Verizon would lessen its competition with the cable 

companies with respect to FiQS, because all Verizon would realize if the cable companies 

sold their services was a portion of a one-time commission in the hundreds of dollars. Mr. 

Milch argued that he would not sacrifice a potential revenue stream in the thousands of 

dollars per customer for such a relatively small one-time payment. What is your response 

to this argument? 

In most competitive markets, companies realize zero revenue when a competitor makes a 

sale. The more competitors share revenue, the more their incentives align and the less they 

compete. By offsetting the lost revenue from each customer that chooses cable over FiOS, the 

agreements will dampen Verizon's incentive to compete aggressively with the cable companies. 

However, the real issue is not relative revenue but relative profit. The revenues realized 

from a commission versus a FiQS sale do not necessarily determine Verizon's incentives. 

Because Verizon incurs none of the cable companies' costs, the return on investment from these 

commissions could potentially exceed the return on investment from FiOS subscriptions. 

Finally, reduced FiOS competition with cable will not be the only harm to consumers. 

As I stressed in my testimony, by giving Verizon a financial interest in the future of cable sales, 

the agreemcnts disincentive Verizon from developing or promoting any products that compete 

with cable. For example, Verizon will have less incentive to promote its 4G LTE nctwork as a 

"cord cutting" alternative. The greatest threat from an alliance between Verizon and the cable 

companies is the loss of such disruptive innovation. 

2. It has been widely reported in the press that the commercial agreements have 

no fixed term. The joint FTC/Justice Department Competitor Collaboration Guidelines 

state that "the Agencies use ten years as a term indicating sufficient permanence to justify 

treatment of a competitor collaboration as analogous to a merger." If these agreements 

indeed have no fixed term, what are the implications for the antitrust analysis of these 

agreements? 

Under the Competitor Collaboration Guidelines, one of four factors in determining whether to 

evaluate competitor collaboration under the Horizontal Merger Guidelines is whether "the 

collaboration docs not terminate within a sufficiently limited period 10 by its own specific and 

express tenus." Footnote 10 provides: "In general, the Agencies use ten years as a term 

indicating sufficient permanence to justifY treatment of a competitor collaboration as analogous 

to a merger. The length ofthis term may vary, however, depending on industry-specific 

circumstances, such as technology life cyeles." 
229 

Under this factor, to escape mcrger scrutiny, a collaboration agreement must both contain a 

"speeific and express" term limit and that term must be a "sufficiently limited period." Ten years 

is simply a rule ofthumb for the latter. A collaboration agreement with no fixed term, by 

definition, does not "terminate within a sufficiently limited period by its own specific and 

express terms." Therefore, this factor would be satisfied. 
230 

Questions for the Record for Verizon-Spectrum Co. Hearing 

Wednesday, March 21, 2012 (2 p.m.) 

Timothy Wu-Professor of Law (Columbia University) 

I. In your testimony, you have stated that this transaction "forces us to confront 

exactly the same problem" that was faced in the AT&Trr-Mobile transaction. 

However, the spectrum transaction at issue here seems fundamentally different to 

me as no customers, facilities, or other assets beyond spectrum are being 

transferred, and the spectrum being transferred was not previously in use. These 

differences seem significant because the transaction does not eliminate a viable 

competitor and also entails efficiencies such as putting to use spectrum that was not 

previously being put to any use. 

• How do you account for these differences and do you dispute that this 

transaction entails what antitrust law generally views as an important 

efficiency-that is, moving assets from a low value use to a high value use? 

The problem to which I referred was the problem of creeping duopoly in the wireless 

industry-in other words, a return to the market conditions that predated the 

Telecommunications Act of 1996, only without the consumer-protective regulations from 

that period. Measured by book value, Verizon already controls more spectrum than the 

proposed AT&T-T-Mobile combination would have. If the proposed transaction were 

approved, Verizon would control more spectrum than its three closest competitors-AT&T, 

Sprint, and T-Mobile-eombined. 

The fact that the cable companies, with their enormous revenue streams, and ability to 

leverage their current product lines to offer a "quadruple play," did not view themselves as a 

"viable competitor" further underscores the currcnt levels of market power and barriers to 

entry in this industry. 

The proposed efficiencies of the transaction are minimal and outweighed by the harms to 

competition and innovation. There is no indication that Verizon will utilize this spectrum 

faster or more efficiently than any of its smaller competitors-such as Sprint or T-Mobilc. In 

fact, by denying its competitors scale in the 4G LTE market, Verizon will substantially lessen 

the competitive pressures that it faces to improve thc quality and efficiency of its network. 

Further, the harms to competition and innovation will fall not just in the wireless market. By 

securing detente between Verizon and the cable companies, the transaction will substantially 

reduce the possibility that wireless broadband will become a replacement for cablc and a 

source of disruptive innovation. 

1 
231 

2. The primary consideration of our antitrust laws is consumer welfare, and several 

factors in the wireless market indicate that consumers are benefitting from robust 

competition. Wireless prices are falling, consumers have competitive choices with 

about a third of all U.S. consumers having switched wireless carriers at some point, 

vibrant innovation is occurring with new devices and services being announced on a 

regular basis, and companies are investing heavily in 4G and 4G L TE deployment. 

• Much of your testimony depends on the premise that the wireless industry is 

not in fact competitive. How do you reconcile this view with the benefits to 

consumers we are seeing in this industry? 

Current levels of competition in the wireless industry are far from robust. The FCC's most 

recent Mobile Wireless Competition Report placed the national weighted average 

Herfindahl-Hirschman Index (HIlI) for the industry at 2848, as of mid-20 I O--far exceeding 

the threshold of2500 that the DO] and FTC regard as "Highly Concentrated.,,1 While mobile 

wireless prices have "declined dramatieaHy over the past 17 years," they have remained 

virtually unchanged in recent years. 2 According to the Report, the "most significant 

development" in pricing was the elimination of unlimited data plans, and "another significant 

development" was higher early termination fees. 3 And, the percentage of customers that 

switch carriers over a given time period-known as "chum"-has been decreasing for 

years.4 

But, even modest levels of competition can yield some benefits to consumers. The danger of 

the proposed Verizon spectrum acquisition is that it will reduce wireless competition even 

further. As the prospect of a de facto duopoly in wireless becomes ever more real, we face a 

policy choice between further concentration and continued competition. 

3. At the hearing, I understand you to have suggested that that the agreements might 

diminish competition between Verizon Wireless's 4G internet service and the cable 

companies. 

• Can you elaborate on how this deal affects competition hetween the wireless 

and wire-line internet products? 

I FCC, Annual Report and Analysis of Competitive Market Conditions with Respect to Mobile 

Wireless, Including Commercial Mobile Services, 26 F.C.C.R. 9664, 9679 (2011). 

2 Id. at 9675, 9781. 

3 ld. at 9725. 

4 1d. at 9817. 

2 
232 

Wireless broadband has the potential to the "third pipe" that disrupts the broadband duopoly 

between local-monopoly cable and telephone providers (which itself is already showing signs of 

shifting towards a cable monopoly). The joint marketing and R&D agreements between Verizon 

and the cable companies dramatically reduce Verizon's incentive to aggressively promote its 4G 

LTE network at a substitute for wire-line broadband. Combined with the substantial increase in 

Verizon's market powcr-and the attendant creep towards an AT&TNerizon duopoly-in the 

mobile wireless market, the deal makes it less likely that any wireless provider will mount a 

substantial challenge to wire-line broadband. In contrast, the acquisition of the spectrum by 

another provider, especially one that is not a substantial provider of wire-line services, would 

increase the likelihood of such a challenge. 

• Do you believe that wireless and wire-line internet services are substitutes? 

Yes. Most obviously, wireless broadband is a direct substitute [or wire-line broadband. 

According to PC Magazine, "[t]he mobile broadband service that has the best chance of being a 

true cable replacement is Verizon's new 4G LTE service." Further, wire-line internet, combined 

with WiFi, is a potential substitute for wireless internet service (as well as a potential 

compliment, as we have seen with WiFi offloading). 

4. During the hearing, you said that "the consumer is served by destructive innovation, 

not by bundling." 

• Can you please elaborate on tbis point? 

With "bundling," a single wire delivers telephone, television, and internet services into the home, 

but the owner of the wire controls all three services. 

With disruptive innovation, each transportation infrastructure-whether wire-line or wirelesswould compete head-to-head, and each service-whether telephone, television, internet, or any 

other-could be offered in individually competitive, "over-the-top" markets. 

• In your view, under what circumstances is bundling a good thing for 

consumers? 

"Pure bundling" of distinct products-where the consumer may purchase either the entire bundle 

or nothing-may offer some conveniences, but is rarely good for consumers. If the seller exploits 

its power in one market to force consumers to buy a second product that they either do not desire 

or would prefer to purchase on different terms, such bundling is per se illegal under the Sherman 

Act. Jefferson Parish Hospital Dist. No.2 v. fI.vde, 466 U.S. 2, 9-29 (1984). 

3 
233 

"Mixed bundling"--wherc the consumer may choose either to bundle or not bundle-is 

sometimes good for consumers. For example, some consumers may value the convenience of a 

single purchase. But even mixed bundling may harm consumers by harming competition. See, 

e.g., LePage's Inc. v. 3M, 324 F.3d 141, 154-57 (3d Cir. 2003). 

• Why is the bundling in this circumstance not welfare enhancing since 

consumers still have the choice not to bundle their purchase? 

The marginal benefits to consumers of being offered a "quadruple play" in Verizon Wireless 

stores are miniscule in comparison to the harms to competition and innovation posed by the 

proposed transaction. Even my co-witness, Charles Rule, who testified in favor of this 

transaction, admitted that the efficiencies of the cross-marking deals did not "knock [his 1 socks 

off." 

4 
234 

RESPONSES BY CHARLES RULE TO QUESTIONS FOR THE RECORD

NOTE: At the time of printing, after several attempts to obtain 

responses to the written questions, the Committee had not received 

any communication from Charles Rule. 
235 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD

POLICY & ACTION FROM CONSUMER REPORTS 

March 20, 2012 

The Honorable Patrick Leahy 

Chairman 

Committee on the Judiciary 

United States Senate 

Washington, DC 20515 

The Honorable Herb Kohl 

Chairman 

Subcommittee on Antitrust, Competition 

Policy, and Consumer Rights 

United States Senate 

Washington, DC 20515 

The Honorable Chuck Grassley 

Ranking Member 

Committee on the Judiciary 

United States Senate 

Washington, DC 20515 

The Honorable Mike Lee 

Ranking Member 

Subcommittee on Antitrust, Competition 

Policy, and Consumer Rights 

United States Senate 

Washington, DC 20515 

Dear Chairman Leahy, Ranking Member Grassley, Chairman Kohl, and Ranking Member Lee: 

Consumers Union, the public policy division of Consumer Reports®, writes to express its 

concern over the proposed transaction between Verizon Wireless, SpectrumCo, and Cox 

(collectively "Cable Companies"). Congress enacted the Telecommunications Act of 1996 to 

help facilitate competition between the traditional telephone companies and the eable industry. 

The Act was intended to spur competition, which in turn would benefit consumers. While 

competition has been far less than what Congress envisioned, the cable industry has invested in 

spectrum needed to offer wireless services while telephone companies have rolled out video 

services in some parts of their service area. 

However, this deal could jeopardize the goals of competition and consumer benefits that 

Congress intended. The deal would add to Verizon Wireless' domination in the wireless market 

and represents the loss of the Cable Companies as facilities-based or wholesale wireless 

competitors. As a result, this transaction will eliminate the chance of more choices in the 

wireless broadband market, while at the same time provide Verizon a disincentive from 

competing in the landline high-speed broadband and video market. 

In this transaction, Verizon Wireless seeks to purchase spectrum licenses from SpectrumCo, a 

joint venture among Comcast Corporation, Time Warner Cable Inc., and Bright House. Also, 

cable provider Cox has agreed to sell off its spectrum to Verizon Wireless. Additionally, 

Verizon Wireless and the Cable Companies have entered into joint marketing agreements. Both 

Comcast and Verizon Wireless have indicated these joint marketing agreements are an integral 

part to the spectrum sale. These joint marketing agreements allow each individual cable 

company and Verizon Wireless to sell one another's products. 

The proposed transaction is not in consumers' best interest since it will diminish competition in 

the video, broadband, and wireless markets. Consequently, consumers could suffer an increase 

in prices and face diminished competitive alternatives in the video, broadband, and wireless 

markets. Thus, we ask that you carefully scrutinize this proposed transaction. 
236 

Spectrum Concentration 

Verizon Wireless already holds the greatest amount of spectrum compared to its competitors. 

Importantly, the Federal Communications Commission (FCC) has determined Verizon Wireless 

holds thc most low-band spectrum, which is the prime band for providing mobile broadband 

deployment. This transaction would generally provide Verizon Wireless in most markets an 

additional 20 MHz of A WS spectrum, which is well suited also for mobile broadband 

deployment. 

Also troublesome is the fact that Verizon Wireless and AT&T together hold more spectrum 

nationally than the other carriers combined. These two carrics also hold the vast majority of 

spectrum best suited also for mobile broadband deployment. This transaction would increasc the 

dominant position that Verizon Wireless holds in the spectrum market and exaccrbate the trend 

of consolidation the FCC has documented in the wireless market. 

Collusion Instead oj Competition 

Under the joint-marketing agreements, Verizon Wireless and the Cable Companies "will sell 

each other's services on a market-standard commission basis, with the new subscribers becoming 

customers of the other service provider. ... " Essentially, under these joint-marketing plans, 

Verizon Wireless stores will market and offer promotions for the Cable Companies' services, 

with the Cable Companies doing the same for Verizon Wireless. 

These joint-markcting arrangcments arc effectively agreements to not compete and would 

essentially divide up the current broadband, video, and wireless markets. As a consequence of 

these agreements, Verizon will have no further incentives to build out its FiOS network, which is 

a direct competitor to the Cable Companies, since hcad-to-head competition would jeopardize 

this deal and threaten Verizon's core revenue stream of mobile servicc subscriptions. On the 

other hand, the Cable Companies have decided they are unable to compete with AT&T and 

Verizon Wireless and instead will be able to now dominate the landline video and broadband 

markets. 

E.ffect on Wireless Competition 

The wireless industry is already concentrated, with Verizon Wireless having the largest share and 

two companies, Verizon Wireless and AT&T controlling over 60% of the wireless market. This 

transaction would further add to Verizon Wireless' dominance in the wireless market, continue 

to solidifY a wireless duopoly, controlled by Verizon Wireless and AT&T, and further reduce 

competition. 

For instance, there would be less spcctrum available for competitors like T-Mobile, Sprint, and 

MetroPCS, who already are at a disadvantage when it comes to premium spectrum assets for 

wireless broadband deployment. Moreover, a stronger Verizon Wireless can more easily 

squeeze out its current competitors. For cxample, competitive carriers will become even more 

dependent on Vcrizon Wireless for roaming agreements. This dependency would give Verizon 

Wireless the incentive to raise the costs of roaming agreements. In addition, due to the lack of 

2 
237 

interoperability, it will bc cvcn more difficult for competitors have access to popular handhcld 

devices that consumers want. Further, the joint-marketing agreements between Verizon Wireless 

and the Cable Companies could give the Cable Companies little incentive to cut reasonable deals 

with Verizon Wireless' competitors on access points such as spceial acccss and Wi-fi off-loading 

capabilities, making it more difficult and expensive for the competitors to compete. 

Effect on Landline Competition 

The cable markct is essentially a regional monopoly since the major cable providcrs do not 

compete with each other. Moreover, the FCC's National Broadband Plan concluded that for 

thosc consumers who wanl very high broadband speeds, nearly 75% of the population willlikcly 

only have one landline broadband provider - the cable company. This is because the speeds 

offered by DSL will not reach the higher speeds offered by the cable industry or fiber-to-thepremises (FTTP) services, like FiOS, which only reach about 15% of the popUlation. 

Consumers are demanding higher speeds for a variety of purposes such as tele-health or 

streaming television shows and movies over the Internet. As DSL may become less attractive for 

consumers because of the slowcr speeds, the only option consumers will have for high-speed 

broadband will be the local cable provider. Additionally, consumers looking for bundling 

options (for high speed broadband, voice, and video) will also face a lack of choiccs if 

competitors, like satellite providers, are unable to provide a viable high speed broadband scrvice. 

Conclusion 

Consumers Union strongly believes that this transaction does not serve the public interest. If 

approved, it will lead to the loss of competition and choice for consumers in the video, 

broadband, and wireless markets. With fewer choices for consumers to choose in a duopoly or 

monopoly market, Verizon Wireless and the Cable Companies will no longer have incentives to 

price thcir products competitively, leading to higher prices for consumers. In tough economic 

times like these, it is in the public's interest to keep prices low and keep as many options for 

consumers as possible. For these reasons, we ask that you carefully scrutinize this proposed 

transaction and the effect it will ultimately have on consumers' pocketbooks. 

Sincerely, 

Parul Desai 

Policy Counsel 

Consumers Union 

1101 17th Strect NW 

Suite 500 

Washington, DC 20036 

202.462.6262 

3 
238 

IBEW Local 827 New Jersey 

IBEW System Council T6 

Massachusetts & Rhode Island 

IBEW locals 2222,2321,2322.2324.2325,2323,2313 

IBEW Local 824 West Central Florida 

The Verizon Spectrum Purchase 

v"'Not in the Public Interest 

v"'Stifles competition and economic opportunities 

v"'Disincentive to Upgrade Copper Facilities or Expand FiOS 

v'" Creates Higher Prices for Consumers 

v"'Wili Eliminate Jobs 

3122/2012 !FlEW tOCJ18Fl New Jersey 18EW Systf::'111 Council T6 New Engbnd 

mEW local 824 West f=1onda 
239 

Spectrum Deal is not in the 

Public's Interest 

Public Interest 

Standard 0/ review - Must show that the transaction would serve the public interest, 

convenience and necessity, and identify the Public interest benefits versus the public 

interest harms; the burden on Verizon is to identify the benefits, the potential harms 

and detail how the acquisition serves the public interests. 

Public Interest Analysis - part of this analysis includes a "deeply rooted preference for 

preserving and enhancing competition in relevant markets, accelerating private sector 

deployment of advanced services, promoting a diversity of license holdings, and 

generally managing the spectrum in the public interest." 

~ This acquisition will NOT preserve or enhance competition or promote diversity of 

license holdings, but will instead increase Verizon's dominance in the mobile 

telephony/broadband market on both national and local levels. 

~ Stifles economic opportunity and competition 

~ Likely to eliminate jobs; the potential negative consequences of this transaction on 

Verizon Communications employees; bargained-for, non-bargained-for and 

management. 

lB[W LoeD) 827 f'-.J£'w Je(${~y & 1St 1/'1 Systern Council T6 New Enf;)3nd 

mrw lO'::,118J4 \lI}pst Florida 
240 

Spectrum Deal Is Not 

in the Publics Interest 

~ Joint Marketing agreement with Cable 

Companies creates a Duopoly 

~ Diminution of Services 

~ Higher Prices for Consumers 

Verizon is phasing-out lower cost options like High Speed Internet and driving 

consumers to higher priced data plans and forcing people off of the copper network 

with limited opportunities for basic landline services of dial-tone or internet options. 

Ion] 
241 

lfnitcd Shdes nl~partrn:et1t uf 

.JuI»tke 

Antitrust Hivision 

Robert F. Kennedy Department 

of Justice Building 

9S0 Pennsylvania Avenue, NW 

Washington, DC 20530 

DOJ Anti-Trust 

Review 

'r The Joint-Marketing agreement with the cable 

companies is inherently anti-competitive. 

"'The proposed agreement between Verlzon Wireless and the 

, consortium of cable companies, which includes Comeast, Time 

" Warner, and Bright House Networks - will see cable companies 

paying Verizon hundreds of dollars for each cable contract 

It obtained through Verizon marketing, and vice versa. 

"'this arrangement essentially a "non-compete" agreement, 

guaranteeing cable won't contend with Veri,on on the wireless 

side, and Verizon won't compete with cable in cable services. 

"'this deal is basically a capitulation: Verilon has decided to give 

up on its own cable aspirations and instead collude with the 

companies that have already established themselves 
242 

Diminution of Jobs & Disincentive to upgrade 

copper facilities and/or continue FiOS build 

.. Verizon has failed to address or consider the negative effect of the transaction on current 

Verizon employees, both represented and non-represented. 

.. Verizon CEO, Lowell McAdam announced that Verizon would no longer continue to build-out 

their state-of-the-art FiOS network beyond the 18 Million homes that Verizon committed to. 

.. Today, throughout Verizon's footprint, they currently serve or could potentially serve 30 

Million landline Customers (Hoovers) only 18 Million, will have the ability to be served by 

FiOS. 

.. Instead, Verizon now plans to bundle their wireless services with their new cable 

partners and as a result, Verizon wifl basically force current and future customers in nonFiOS areas onto their competitor's networks. 

» Verizon is beginning to deny their broadband High Speed Internet (HSI) services in areas 

where this broadband technology is their only option. Verizon is running a business and 

if it is not profitable to install HS! broadband, consumers will be left without a low-cost 

broadband internet option and as a result, be forced to switch their Verizon landline 

telephone service over to the bundled services of the cable companies. Verizon, 

through their cable partners will bundle their wireless cell phone services to this 

consumer. 
243 

HomeFusion Makes Verizon Wireless 

'Cantenna' a Reality 

~ HomeFusion Broadband is a new service that will bring wireless LTE service 

into the home as a primary broadband connection for those in areas with 

limited options. 

~ Customers can choose several usage-based plans, beginning at $59.99 per month for 10 GB 

of data, or $120 per month for 30 GB of data. A one-time equipment fee of $199.99 applies, 

and installation of the antenna is free. 

~ With the Home Fusion service, Verizon's LTE network is delivered to an antenna that 

transmits the signal to a broadband router inside the home. The cylinder-shaped antenna is 

installed at the customer's home, and the product's design includes multiple internal antennae allowing the device to pick up Verizon's 4G LTE signal. 

~ The broadband router can connect up to four wired and at least 20 wireless devices inside 

the home using Wi-Fi. 

" Verizon Wire!ess is working with Asurion for installation of the service. 

,.. Verizon chose NOT to let unionized workers already serving these customers in the 

community install these services or sell these services in the unionized sales centers across the United States. 

SEE: http://www.wirelessweek.com/News/2012/03/Home·fuslon~Mak:es-VZW~Cantenna-R€allty~Technologvl 
244 

~~ss Verizon Wireless Products 

Verizon Home Monitoring and Control 

• The smart home of the future is yours today with Verizon Home 

Monitoring and Control. Choose from a variety of easy-to-install 

home automation and energy management features that can be 

controlled remotely from your computer, Smartphone, or FiOS TV. 

• Verizon announced that InstallerNet will be the professional 

installer of choice. 

• Verizon chose NOT to let unionized workers already serving these 

customers in the community install these services. 

Verizon Wireless Home Phone Connect 

• Port your home number to Verizon Wireless or establish a new line 

of service. 

• Activate service, and begin making and receiving calls 
245 

~""""'Verizon/s End Around 

of Oversight? 

);> Verizon in many areas is lobbying at the State level for deregulation 

of telecommunication services. 

);> Verizon is actively analyzing divesting their interests in Pole 

ownership, locally and/or nationally, thereby avoiding oversight and 

their responsibilities (double poles, storm response, etc. lin the 

communities. 

);> Verizon sold off their landline services to Frontier & Fairpoint, using 

the Reverse Morris Trust, unloading debt onto these companies and 

avoiding taxes. Verizon Wireless is actively pursuing newer 

technologies in these 17 states to compete against Frontier & 

Fairpoint in the states that they abandoned. 
246 

Layoffs & Plant 

Closings 

Verizon lays off 336 N.J. workers 

because of in copper line customers 

Verizon call center closures to affect more than 3,000 jobs Marth:),2012 

See: 

Verizon Continues layoffs, Over 16,000 employees 

1'1"""!!!!''!'"''',.,..."...--__ ''''' to be cut in two years ... 
247 

Timeline of events related to 

Verizon's Spectrum Purchase 

October 24,2011 Report- Verizon confirms new LTE service; FiQS build essentially over. Verizon (FO Fran Shammo confirms trial 

of the "Cantenna" for fixed residential DSL alternative; Limited FiQS build remaining, 

December 2.2011- Verizon Wireless announces that it wlll be purchase Wireless Spectrum from Comeast Corporation, Time 

Warner Cable, and Bright House Networks for $3.6 Billion. 

This transaction will result in 122 Advanced Wireless Spectrum Licenses transferring to Verizon Wireless. 

A "cross marketing" agreement allowing the parties to sen each other's seP/ices was announced as well. 

December 16, 2011- Verizon agrees to purchase spectrum held by Cox Communications for $315 Million. 

December 21. 2011- Verizon Executives meets with IBEW and CWA Representatives in Rye Brook, NY. Robert Mudge, Verizon 

President of Consumer and Mass Business Markets, informs Unions that "the Spectrum purchase will have absolutely no 

effect of the wire line industry". 

February 2012 - Vedzon HSI denial directive in Northeast. In New England and New York Verizon no longer wH! offer HSi services if 

suitable facilities are not available or if more than minimal work is required. The Company stated that if an engineering 

work order had to be written, the customer would be informed that they are not eligible. This means a Verizon wire line 

customer that would have been eligible inJanuary2012 and prioris denied. This drives consumers to the higher prked 

products Verizon wants to offer or forces consumers to Cable companies as the only option. 

March 2 2012 - Vedzon announces "HomeFusion". The aforementioned "Cantenna" is officially put into play. This proposed 

replacement for DSl will result in a cost increase for consumers as this wireless technology will have "caps" for usage. DSl 

and FiOS have unllmited usage. In this instance, customers wi!! have to pay for usage beyond designated limit. 

lBf:.W CounCl! rG New Engh:H1d & lREW 

lGrw lOCt41 Floricia 10 
248 

Thank You 

• This overview was brought to you by the ISEW 

Telephone Locals in New Jersey, Massachusetts, 

Rhode Island & Florida 

• For Copies of this guide or the supporting 

documentation and reference please e-mail: 

Ed Starr Bill Huber John Rowley, Sr. 

Business Manager Business Manager Business Manager 

IBEW Local 2321 IBEW Local 827 IBEW Local 2324 

EdStarrESQ@MSN.Com whuber@ibew827.com jrowleyibew2324@verizon.net 

IBfW 1.0,:;118/7 :REW System Council TS 

18!:W LOCdlS24 West Ccntrai 11 
249 

~ - -Mobile--

601 Pennsylvania Ave., NW 

North Building - Suite 800 

Washington, DC 20004 

(202) 654-5900 

March 20,2012 

The Honorable Herbert H. Kohl, Chairman 

The Honorable Mike Lee, Ranking Member 

U.S. Senate Judiciary Subcommittee on 

Antitrust, Competition Policy and Consumer Rights 

308 Dirksen Senate Office Building 

Washington, DC 20510 

Re: T-Mobile, USA Comments for the Hearing - "The Verizon/Cable Deals: Harmless 

Collaboration or a Threat to Competition and Consumers?" 

Dear Chairman Kohl and Ranking Member Lee: 

Thank you for this opportunity to submit T-Mobile USA's ("T-Mobi1c") views for the record as 

you conduct the hearing directed to answering the question: "The Verizon/Cable Deals: 

Harmless Collaboration or a Threat to Competition and Consumers?" Put simply, Verizon 

Wireless' proposal to purchase the Advanced Wireless Services ("A WS") spectrum assets of 

SpectrumCo, LLC (a joint venture among subsidiaries of Comcast Corp., Time Warner Cable 

Inc., and Bright House Networks, LLC) and Cox TMI Wireless, LLC are not in the public 

interest and should not simply be rushed through the regulatory process as Verizon Wireless and 

the other applicants urge. 

Verizon Wireless has far less incentive than smaller carriers like T-Mobile to rapidly deploy the 

cable company spectrum efficiently to provide broadband service to consumers in the United 

States. Verizon Wireless already holds a strong portfolio of unused "greenfield" spectrum 

licenses in the A WS band, and is also dominant in the most desirable low-band spectrum below 

10Hz. Indeed, much of the already significant holdings of A WS spectrum that Verizon 

Wireless acquired in 2006 still lie fallow today. This is despite the almost complete clearance of 

legacy government and commercial users from the A WS band and the ready availability of 

A WS-capable devices in the marketplace. Instead, Verizon Wireless chose to hold this critically 

scarce spectrum in reserve, warehousing it for some future use. By contrast, T-Mobile and other 

smaller carriers worked to aggressively clear the A WS spectrum of incumbent users and have 

been using that spectrum to deploy 30 and 40 services since 2008. 

Ifwe lived in a world of plentiful spectrum resources, Verizon Wireless' behavior and the 

proposed transactions would be much less problematic. But that is not the world we inhabit 

today. Even with the recent legislation authorizing the FCC to hold incentive auctions for bands 

currently held by broadcasters, wireless providers cannot expect to see consequential blocks of 
250 

March 20, 2012 

Page 2 

spectrum available in the marketplace for many years. So, by effectively cornering the 

remaining readily available AWS spectrum, Verizon Wireless is foreclosing T-Mobile and othcr 

smaller competitors from the potential to acquire an important resource - thc spectrum they 

need to meet consumer demand for LTE (the next generation of mobile services) to directly 

compete against Verizon Wireless. 

Verizon Wireless contends that thc "screens" customarily applied by the FCC to review mobile 

services transactions are either not applicable here (the HHI-based screens) or not triggered 

except in a few markets (the spectrum screen). It therefore argues that under FCC precedent 

there is no competitive harm and no further review is appropriate. But this ignores the fact that 

the government has an obligation to conduct a thorough analysis to determine whether these 

transactions serve the public interest. That analysis will clearly show significant harms to 

wireless competition and consumers if these transactions are approved. 

The limitation on spectrum capacity is one of the greatest impediments to robust competition 

among wireless providers in the United States. Indeed, Congress, the FCC, and the 

Administration have all recognized the imperative need to free up additional spectrum for mobile 

broadband. Approving the Verizon Wireless acquisition of the cable companies' spectrum is 

problematic not only because of the increase in Verizon Wireless' own holdings (whcn only a 

month before the announced transactions Verizon Wireless was tclling the public that it had no 

near term need for additional spectrum), but because it would simultaneously deprive more 

efficient competitors of the spectrum. These acquisitions therefore potentially foreclose access 

to a necessary input for competitors who could make immediate use of the bandwith to directly 

compete against Verizon Wireless. 

There is strong precedent supporting a conclusion that an acquisition of an input, such as 

spectrum, can cause competitive harm in violation of the Clayton Act. In 1998, for example, the 

Department of Justice challenged an acquisition of unused satellite television spectrum by a 

consortium of cable companies on the basis that the cable companies would use the spectrum in a 

less competitivc manner than would other purchasers. And, the DOJ recently supported an FAAordered divestiture in airport takeoff and landing slots in a transaction between Delta and US 

Airways, expressing concern that the parties were engaged in "slot hoarding" with an intent to 

keep new entrants, who would use the scarce slots more efficiently, from the market. 

T -Mobile also does not believe the FCC should rely solely on an arbitrary spectrum screen to 

determinc which markets require review for potential anticompetitive effects. However, if it 

does use a screen, it should update its methodology to be more in line with the current 

technological and competitive marketplace to more effectively identify the markets in which no 

potential for such eHeets exists. Most importantly, the FCC should acknowledge that treating all 

spectrum frequencies the same for purposes of the screen does not reflect technical and market 

realities. In other contexts, both the FCC and DOJ havc con eluded that lower frequency bands -

such as the 700 MHz and cellular bands below I GHz - possess more favorable intrinsic 

spectrum propagation characteristics than spectrum in higher bands. As a result, such 'Iowband' spectrum can provide superior coverage over larger geographic areas, through adverse 

climates and terrain, and inside buildings and vehicles. This also means that networks using 
251 

Æ