AT&T, MCI: The Spoils of War
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

On Monday, Verizon announced its acquisition of MCI. Just a few weeks ago, SBC made a similar announcement regarding AT&T.
Nine years ago, either of these acquisitions would have been “unthinkable” combinations of vibrant competitive rivals. Today, each is but the ceremonial swallowing of the vanquished by the victor.
For the worse part of a decade, telephone companies fought a bitter war. On one side were AT&T, MCI, and other “new-entrant” telephone companies. On the other side was an alliance of the “incumbent” telephone companies such as SBC, Verizon, and BellSouth.
The opponents fought on theological terms, labeling friends as “saints” and foes as “demons.” Civility in the public discourse of telecommunications issues was collateral damage in the widespread conflict.
Practically all of American business and government tacitly allied with one side or the other. Neutrality was a rare virtue. The very purposes of the war itself, business investment and competition, languished as the government could not clarify the legal rights and obligations of the conflicting parties.
The war is over; the incumbents won. To the victors go the spoils, the shattered remains of once-proud corporations such as AT&T and MCI. Had AT&T and MCI won, they might have supplanted SBC and Verizon. Of course, scattered remnants of the new-entrant companies survive, their once considerable collective enterprise value now dwarfed by a midsize incumbent carriers.
The telecommunications battles were fought for neither land nor glory, nor even for the heart and loyalty of the American consumer. Instead, they were fought for the interpretation of a few words from the rarely-read and much-maligned Telecommunications Act of 1996. The new-entrant companies pinned their business plans on a mere 28 words of law that govern the wholesale lease arrangements between incumbents and new entrants:
“The failure to provide access to such network elements would impair the ability of the telecommunications carrier seeking access to provide the services that it seeks to offer.” A junior high school student might be able to reasonably read and interpret these words. But they have turned into one of the greatest enigmas of contemporary business law.
For years, the legal interpretation of these words has been in doubt. One court opined the FCC rules were fine; the Supreme Court said the FCC rules need more explanation; the next court said the FCC rules could not be national in scope but must account for local market conditions; the next review said the FCC could not delegate those local determinations to the states, and so on. Investors were dismayed.
The incumbents won not as an inevitable outcome of the underlying statute but apparently as the good fortune of consistently being allied against the FCC.
With each FCC court defeat, the legal foundation for the new-entrant industry eroded away. By 2004, a weary administration declined yet another court appeal of a reversed FCC ruling; the war was effectively over. Capitulation would be in the form of consolidation.
Last week, the FCC revealed its latest effort on wholesale lease arrangements, its first interpretation decidedly sympathetic to the incumbents. But a dispassionate review of the order suggests that while FCC sympathies have changed, its legal acumen has not. The order is filled with numbers that seem to be drawn from thin air.
Petitions were filed Monday with the D.C. Circuit Court of Appeals challenging the new FCC rules. But markets reacted little to the newly released rules, a clear sign that the new rules matter little.
Investment analysts bicker about whether SBC and Verizon paid too much or too little for their new conquests. Never underestimate the intangible and nontransferable value to a victor, after an acrimonious nine-year struggle, of holding aloft the head of the vanquished.
A former FCC commissioner,Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He can be reached at hfr@furchtgott-roth.com.

