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LAW OFFICES ROBERTR. RODECKER BB&T SQUARE

300 SUMMERS STREET, SUITE 1230

POST OFFICE BOX 3713

ROBERT R. RODECKER CHARLESTON,WEST VIRGINIA25337 AREA CODE 304 [email protected] 343-10U August 14,2013 __ FACSIMILE 343-1057

Ms. Sandra Squire Executive Secretary Public Service Commission 201 Brooks Street Charleston, West Virginia 25301

RE: CASENO.13- 1234 -c-PC AT&T INC. AND LEAP INTERNATIONAL, INC. Joint Petition for a Commission Order exempting AT&T’s acquisition of the stock of from the provisions of West Virginia Code § 24-2-12, or in the alternative, for the consent and approval of proposed transaction in advance

Dear Ms. Squire:

Enclosed herein please find the original and twelve (12) copies of the Joint Petition of AT&T Inc. (“AT&T”) and Leap Wireless International, Inc. (“Leap”), requesting that the Commission enter an order exempting AT&T’s acquisition of the stock of Leap from the provisions of West Virginia Code § 24-2-12 to the extent such a provision is otherwise applicable. In the alternative, AT&T and Leap request that the Commission grant advance approval of AT&T’s acquisition of the stock of Leap, to the extent such approval is required by applicable law.

Should you have any questions regarding this filing, please do not hesitate to contact me.

Sincerely,

Robert R. Rodecker WV State Bar No. 3145 cc: James Kelsh, Esquire Julie Buechler Mark A. Keffer, Esquire PU B L IC SERVICE CO MM I SS ION OF WEST VIRGINIA CHARLESTON

CASE NO. 13- -c-PC

AT&T INC. and LEAP WIRELESS INTERNATIONAL, INC. Joint Petition for a Commission Order exempting AT&T’s acquisition of the stock of Leap Wireless from the provisions of West Virginia Code § 24-2- 12, or in the alternative, for the consent and approval of proposed transaction in advance

JOINT PETITION

Come now the above-named AT&T Inc. (IIAT&TII), and Leap Wireless

International, Inc. (“Leap”) (collectively, “Joint Petitioners”) to respectfully request that

the Commission enter an order exempting AT&T’s acquisition of the stock of Leap from

the provisions of West Virginia Code § 24-2-12 to the extent such a provision is

otherwise applicable.’ In the alternative, Joint Petitioners request that the Commission

grant advance approval of AT&T’s acquisition of the stock of Leap, to the extent such

approval is required by applicable law. In support of their Petition, Joint Petitioners

state:

1. That the name and principal business address of AT&T are:

AT&T Inc. 208 South Akard Street Dallas, 75202

1 The Joint Petitioners expressly reserve all rights to assert that the transaction is not subject to Commission consent or approval under West Virginia Code § 24-2-12. 2. That the name and address of Leap are:

Leap Wireless International, Inc. 5887 Copley Drive , CA 921 11

3. Designated Contacts

AT&T Contacts Leap Contacts

Mark A. Keffer Julie Buechler AT&T Services Inc. Cricket Co mm u n icat ions, Inc. 675 W. Peachtree Street Leap Wireless International, Inc. 43'' Floor 5887 Copley Drive , GA 30309 San Diego, CA 92111 Phone: (404) 927-3890 Phone: (858) 882-9303 E-mail: [email protected] E-mail: [email protected]

Robert R. Rodecker James Kelsh Law Offices of Robert R. Rodecker Bowles Rice LLP P.O. Box 3713 P.O. Box 1386 Charleston, WV 25337 Charleston, WV 25325-1 386 Phone: (304) 343-1654 Phone: (304) 347-1 135 Facsimile: (304) 343-1657 Facsimile: (304) 347-2196 E-mail: [email protected] E-mail: j kelsh @ bowlesrice. co m

SUMMARY DESCRIPTION OF THE TRANSACTION

4. On July 12, 2013, AT&T and Leap entered into a Stock Purchase

Agreement whereby AT&T will acquire all of the issued and outstanding capital stock of

Leap. AT&T will create a subsidiary that will merge with Leap, and as a result, Leap will

become a direct subsidiary of AT&T. This will make Leap's CMRS subsidiary operating

in West Virginia, Cricket Communications, Inc. ("Cricket"), an indirect subsidiary of

AT&T. As a result of the transaction, AT&T will acquire all of Leap's wireless properties,

including licenses, network assets, retail stores, and approximately 5 million subscribers

across the United States.

2 5. AT&T Inc. is a holding company, which, through its operating subsidiaries, provides communications services throughout the United States and around the world.

In West Virginia, AT&T Inc., through various subsidiaries,2 provides local and long distance voice and data networking services and, in addition, provides wireless services

in West Virginia through New Cingular Wireless PCS LLC, formerly doing business as

Cingular Wireless and now doing business as AT&T Mobility (“AT&T Mobility”). AT&T’s

West Virginia wireless subsidiary operates as a seamless part of AT&T’s global wireless

operations.

6. Leap is a holding company that provides wireless

services throughout many parts of the United States under the “Cricket” brand through

its operating subsidiary, Cricket, which focuses primarily on prepaid customers.

Cricket’s wireless telecommunications services are provided using its own facilities in

certain areas and through resale and relationships with other wireless carriers

outside of its network footprint.

7. Leap, through its subsidiary Cricket, has a limited presence in

West Virginia. It does not have any company-owned retail stores in West Virginia.

Cricket’s wireless network facilities provide coverage limited to the Northern Pan handle

of West Virginia, and it has only four cell sites in this part of the state. There are no

2 AT&T Inc. is the holding company parent of wholly-owned subsidiaries that are certificated to provide competitive telecommunications services in the State of West Virginia, but that are not involved in the proposed merger transaction. AT&T Corp., a direct subsidiary of AT&T Inc., is authorized to provide interexchange services and resold and facilities-based competitive local exchange services. Teleport Communications America, LLC, a wholly-owned subsidiary of Teleport Communications Group, Inc., which is a wholly-owned subsidiary of AT&T Corp., which in turn is a wholly-owned subsidiary of AT&T Inc., is authorized to provide resold and facilities-based local exchange and interexchange services. BellSouth Long Distance, Inc., d/b/a AT&T Long Distance Service, is a wholly-owned subsidiary of BellSouth Mobile Data, Inc., which is a wholly owned subsidiary of AT&T Inc., and is authorized to provide resold interexchange services. Leap or Cricket employees working in West Virginia. Based on Cricket’s records, it only has approximately 700 West Virginia subscribers.

8. There will be no interruption or diminution in the wireless services provided to the handful of West Virginia Cricket customers as a result of the Leap

Acquisition. AT&T will assume full control of Leap and Cricket, its subsidiary serving small segments of West Virginia, and will operate them in accordance with all applicable laws, rules, and regulations. To the limited extent to which Cricket serves customers in

West Virginia, the existing Cricket customers will continue to receive service, and AT&T will honor their rate plans.

proposed transaction serves the public interest, including the interests of West Virginia consumers. Specifically, it will bring significant transaction-specific benefits without competitive harm. Leap has years of experience marketing and selling prepaidho- contract services with an established retail distribution system, and its Cricket brand is well-recognized in all of its service areas, including the small portion of West Virginia that Cricket serves. AT&T has a fast and reliable nationwide 4G LTE/HSPA+ network that provides its customers with a level and variety of services that Leap does not and

cannot offer.4 Combining Leap’s established Cricket brand, spectrum, customer base,

distribution network, and experience selling prepaidho-contract service with AT&T’s

See ULS File No. 0005860676 (lead application) (filed Aug. 1, 2013), available at http://wireless2.fcc.nov/UlsApp/ApplicationSearch/a~plMain.is~?a~~llD=7710783. 4 Leap’s financial resources and limited spectrum depth make it uneconomic for Leap to upgrade its current CDMA platform to LTE throughout its network. Leap has little prospect today of further financing significant necessary upgrades to cover the remainder of its network footprint.

4 nationwide 4G LTE/HSPA+ network, suite of advanced devices and services, and financial resources, will bring consumers a compelling, nationwide, facilities-based alternative for a full range of prepaidho-contract services. This will include low-cost, value-priced products as well as higher-end, data-oriented products.

IO. Existing Leap customers will benefit from access to a more robust national

network and a broader array of services. The combined company will offer Leap customers access to AT&T’s nationwide network footprint, superior choice in handsets,

more robust data services, and Wi-Fi hotspots across the country. At the same time,

AT&T will honor the rate plans of existing Leap customers. For new customers, the

combined company will continue to offer competitive rate plans that appeal to value-

conscious customers, including the option of choosing low-cost devices and low-cost

services.

11. The benefits of the transaction will be achieved without harm to

competition. As discussed above, Cricket only operates in a small portion of

West Virginia, in the Northern Panhandle near Pittsburgh, Pennsylvania, and only has

approximately 700 customers in West Virginia. Moreover, there will be at least seven

wireless providers in West Virginia following this transaction, including national carriers

AT&T, , Sprint and T-Mobile, regional carriers such as US Cellular and nTelos,

and TracFone, a leading provider of prepaid wireless offerings.

COMMISSION JURISDICTION AND REQUEST FOR APPROVAL

12. The law is unsettled on whether transactions involving the transfer of

control or merger of wireless carriers must receive prior Commission approval under

West Virginia Code § 24-2-12. Until 2006, transfers of control of wireless providers

5 were completed upon the filing of a letter with the Commission, for informational purposes, within five (5) days of the effective date of the transaction. This practice had been established in cases where the Commission had determined that mergers and transfers of assets or control by wireless carriers involved market entry which has been preempted by Congress under the Omnibus Budget Reconciliation Act of 1993.5

13. However, in subsequent cases the Commission reversed its prior position and held that transfers of control and merger applications of wireless carriers must be submitted for prior review and approval under West Virginia Code § 24-2-12. In the cases of American Cellular Corporation dba CellularOne and Highland Cellular LLC dba

CellularOne, Case No. 06-1 199-C-PC, (Order entered September 18, 2006), Sprint

Nextel Corporation, Case No. 06-0852-T-PC, (Order entered December 11, 2006),

AT&T Inc. and Dobson Communications Corporation, Case No. 07-1290-C-PC (Order entered September 14, 2007), and AT&T Inc. and Easterbrooke Cellular CorDoration,

Case No. 07-191 7-C-PC (Order entered December 7, 2007), the Commission reviewed transfer of control and merger applications of wireless carriers and granted its prior

consent and approval pursuant to West Virginia Code $24-2-12.

14. As recently as 2011, the Commission entered an Order in Case No. 10-

1428-C-PC involving Cellco Partnership, dba Verizon Wireless, rejecting a challenge to

the legitimacy of Cellco’s post-closing filing of an informational letter following Cellco’s

5 By Order entered February 1, 1995, in Case No. 94-1143-C-PC, Vanguard Acauisition CorD., the Commission held that Vanguard and its affiliates should be granted an exemption from West Virrrinia Code § 24-2-12 concerning any merger, transfer, sale or acquisition relating to its cellular operations, Consistent with the February 1, 1995, Order, on May 5, 1999, counsel filed a letter with the Commission following the merger of Vanguard’s parent into Winston, Inc., a wholly owned subsidiary of AT&T Corporation. AT&T has continued to operate the Vanguard properties through various transfers of control subsequent to the 1999 merger.

6 2008 acquisition of Communications, Inc. Thus, it appears that the Commission continues to recognize the post-closing notification process in acquisitions similar to this one, where one of the parties has previously received an exemption from the

Commission similar to that received in the Vanguard case. Accordingly, AT&T and

Leap respectfully request that, in lieu of requiring approval of the transaction under

West Virginia Code § 24-2-12, the Commission enter an Order authorizing AT&T to file an informational filing with the Commission informing the Commission of the acquisition within five (5) days of the effective date of the transaction.

15. In the alternative, AT&T and Leap, without agreeing that the Commission has jurisdiction or authority to require or grant approval, and only to the extent such approval is deemed necessary, respectfully request that the Commission grant its consent in advance, or, in the alternative, and consistent with the Commission’s recent decision in the Cellco case, enter an Order exempting the proposed transaction from the provisions of West Virginia Code § 24-2-12 and, therefore, from the Commission’s review.

16. In the event the Commission decides it should review and approve the proposed transaction (which AT&T and Leap do not believe is necessary or required) the Joint Petitioners respectfully request that the Commission retain this case and waive public notice and hearing on this Petition as it did in the cases of AT&T Inc. and T-

Mobile USA, Inc., Case No. 11-0563-C-PC (Order entered July 29, 2011),6 and

6 Although this Commission approved the proposed merger of AT&T Inc. and T-Mobile USA Inc., the transaction was abandoned by the parties.

7 Voicestream Pittsburgh L.P., T-Mobile Central LLC, and T-Mobile Northeast LLC, Case

No. 12-1585-C-PC (Order entered January 11, 2013).

17. The terms and conditions of the transfer of control are reasonable, neither

party to the transaction is given an undue advantage over the other, and the transaction will not adversely affect the public in this State.

WHEREFORE, the Joint Petitioners respectfully pray:

(1) That the Commission enter an Order exempting the proposed transaction

from the provisions of West Virginia Code § 24-2-12 and, therefore, from the

Commission’s review, consistent with the Commission’s Order of February 1, 1995, in

Case No. 94-1143-C-PC, Vanguard Acquisition Corp., and, most recently, its Order of

February 25, 2011 in Case No. 10-1428-C-PC, Cellco Partnership, dba Verizon

Wireless; or

(2) In the alternative, and only to the extent required by law, that the

Commission enter an Order granting its consent in advance to AT&T, pursuant to West

Virginia Code § 24-2-1 2, to acquire ownership and control of Leap Wireless

International, Inc. as described herein; and

(3) That the Commission, consistent with the January 11, 2013, Order in

Voicestream Pittsburgh L.P., T-Mobile Central LLC, and T-Mobile Northeast LLC, Case

No. 12-1585-C-PC, and the July 29, 201 1, Order in AT&T Inc., and T-Mobile USA, Inc.,

Case No. 11-0563-C-PC, retain this case, and waive public notice and hearing on this

Petition and any other formal filing requirements.

8 Respectfully submitted,

AT&T INC.

By counsel

Robert R. Rodecker [State Bar ID # 31451 Law Offices of Robert R. Rodecker Post Office Box 3713 Charleston, West Virginia 25337 Phone: (304) 343-1654 Facsimile: (304) 343-1657 [email protected]

Mark A. Keffer [State Bar ID # 19881 AT&T Services Inc. 675 W. Peachtree Street 43rd Floor Atlanta, GA 30309 Phone: (404) 927-3890 E-mail: [email protected]

LEAP WIRELESS INTERNATIONAL, INC.

A

Charleston, WV 25325-1386 Phone: (304) 347-1135 Facsimile: (304) 347-2196 E-mail: [email protected]

August 14,2013