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Posted at 11:01 AM ET, 09/21/2011

AT&T, T-Mobile vs. DOJ: Top 5 things to watch

T-Mobile USA Inc. and AT&T Inc. signage is displayed on stores in New York, on Aug. 31, 2011. (Stephen Yang - Bloomberg)
AT&T, T-Mobile and the Department of Justice will appear for the first time in front of a federal judge Wednesday afternoon, and although the hearing is only meant to set the schedule for trial, observers will be watching for signs for what may lie ahead for the companies’ attempt to merge.

U.S. District court judge Ellen Huvelle has asked the main parties — as well as competitor Sprint Nextel — to appear at the 2 p.m. hearing at the D.C. court. Huvelle is known for her efficiency in handling cases and impatience for drawn-out discoveries and trials.

Here are the top five things to watch:

1) Timeline: The Justice Department wants the trial to take place in March, saying it needs time for discovery. AT&T and T-Mobile want a faster process and have asked for a Jan. 16, 2012 trial date. Keep in mind that AT&T will have to pay T-Mobile an estimated $6 billion penalty if it can’t close the deal. There’s a chance of course that on Wednesday afternoon, Huvelle may not set a trial date.

2) Leaning: All in the courtroom will be watching Huvelle like they do Fed chief Ben Bernanke, reading every word for nuances in her opinions of the proposed $39 billion merger. They will watch closely to see if she makes any remarks on market definition — if the merger would affect the national market or local wireless markets. The Justice Department argues that both would be considerably less competitive with the merger. AT&T and T-Mobile want for regulators to judge them on local markets, in which case they point to competition from regional carriers such as Metro PCS and Cellular South.

3) Plaintiffs: What will the additions of seven state attorney generals, Sprint Nextel and Cellular South in opposition to the merger mean? Will Huvelle allow more of those parties to participate and join the Justice Department’s lawsuit? In that case, experts say, it will be harder to reach a settlement and will give the Justice Department greater resources. There is also a chance she could dismiss Sprint’s suit.

4) Party watching: Will the Justice Department or AT&T/T-Mobile say anything that grabs Huvelle’s attention — in a good or bad way? All sides will put their best foot forward and early impressions mean a lot, experts say. For inside Beltway intrigue, observers will watch closely for who attends. Will Washington head of lobbying and government affairs, AT&T’s Jim Cicconi appear to back up general counsel Wayne Watts?

5) Settlement: Huvelle has asked the parties to update her on the status of a settlement. So far the companies and the Justice Department have been silent about any potential talks. Here we will see how far they’ve come — or if talks have started at all — on reaching a compromise. The parties may ask for that discussion to be private and in her chambers.


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By  |  11:01 AM ET, 09/21/2011

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