All Things Digital

We just want you to know that as we assess our capital allocation options, we will continue to adhere to the disciplined framework that I just outlined.”

– Time Warner CEO Jeff Bewkes, Aug. 06, 2008

Disciplined capital allocation is a key priority for Time Warner (TWX). That said, the company “may have overpaid” for Bebo, the social-networking site it acquired for $850 million in cash back in March. So said Time Warner CEO Jeff Bewkes in an interview with Portfolio.

Portfolio: And if you had to do it all over again … would you pay $850 million for Bebo?

Jeff Bewkes: Maybe. I’ll tell you why I can’t give you an answer. Because when you’re doing an acquisition in an auction, the core purpose of the auction is to try to get as much buyer and competing interest. When you look back at it, you then have to reveal–which I can’t to you–what I know about the other bidders. And you learn more of it after than before. The reason we said–when we kept being pressed by people, when they said “did you overpay or not?” we said we don’t know–is if our plans work out, we did not overpay. But then somebody says it’s compared to what you could’ve paid. If our plans work out less well than we thought, we would have overpaid by a few hundred million dollars. I’m not sitting here now–I don’t know if that’s the case–under a high case, we’ve actually made a lot of money on it. So it’s really too early to say. It’s kind of like saying, did Google (GOOG) overpay for YouTube? What was that number–$1.6 billion? They haven’t monetized that yet

Can a search-advertising alliance between Yahoo and Google possibly pass regulatory muster? We may soon find out.

Now that investor-tormentor Carl Icahn has filed a proxy slate to unseat Yahoo’s board with the intent, one way or another, to push the company back into merger negotiations with Microsoft (MSFT), an obviously panicked Yahoo (YHOO) is scrambling to pull together a search-ad deal with Google (GOOG).

The possibility of a search-ad outsourcing arrangement between the two companies was, in part, what caused Microsoft to lose its appetite for Yahoo. Could it cause Icahn to lose his as well? Seems doubtful. Even if, as sources close to the situation tell the New York Post, the deal is the sort of open-to-all-comers arrangement Yahoo and Google hope would pass regulatory scrutiny. Under its terms, a real-time auction system would be used to select the most lucrative ads for a given search query from among those sold by Yahoo, Google or anyone else that cares to participate. Structured in this way, the deal might not, as Microsoft has claimed in the past, consolidate over 90% of the search-advertising market in Google’s hands and draw the ire of antitrust regulators.

Instead it might consolidate, oh say … 89.99% in the search sovereign’s hands. Said Kevin Lee, chairman of search engine marketing firm Did-It, “Given the way the ecosystem is put together now, Google would probably be the winner in a vast majority of cases.”

Microsoft (MSFT) may launch a hostile bid for Yahoo as early as today. That’s the big news this morning from those mysterious “people familiar with the situation” who are quick to note, as they always are, that the “situation” is still fluid and Microsoft may also drop the bid entirely or sweeten it a bit.

Meanwhile, “people familiar with the matter” say that Yahoo (YHOO) may launch something in the next few days as well: a deal to carry search advertisements from Google (GOOG) alongside Yahoo search results. Such a deal would likely not be the sort of broad pact over which Microsoft has preemptively cried foul, but a non-exclusive arrangement open to the companies’ competitors as well. Under its terms, a real-time auction system would be used to select the most lucrative ads for a given search query from among those sold by Yahoo and Google. Microsoft too, if it were willing to participate.

So much for eBay’s Feedback Profile. The online auction pioneer has been getting quite a bit of negative feedback for its decision to ban sellers from leaving “negative” or “neutral” comments about buyers.

Announced last week along with some other changes, the move is designed to eliminate retaliatory feedback. Apparently, eBay believes its slowing growth is due at least in part to dissatisfied buyers put off by vindictive sellers. “… [T]he original intent of eBay’s public feedback system was to provide an honest, accurate record of member experiences,” Bill Cobb, president of eBay North America, wrote in a message to the eBay Community Forum. “Over the years, we’ve adjusted the system to add nonpublic means of providing feedback to try to improve its accuracy. … But overall, the current feedback system isn’t where it should be. Today, the biggest issue with the system is that buyers are more afraid than ever to leave honest, accurate feedback because of the threat of retaliation. In fact, when buyers have a bad experience on eBay, the final straw for many of them is getting a negative feedback, especially of a retaliatory nature. Now, we realize that feedback has been a two-way street, but our data shows a disturbing trend, which is that sellers leave retaliatory feedback eight times more frequently than buyers do … So we have to put a stop to this and put trust back into the system.”

Suffice it to say, eBay’s sellers, who view feedback as one of their few means of protecting themselves against shady buyers, are not at all happy with the change. Some are threatening boycotts. Others are just taking their auctions elsewhere. “The feedback is the only carrot a seller has to make sure a person buying from them is fair,” said one veteran eBay seller who’s closing up shop. “Now I’ve got virtually no way to protect myself against negative feedback. … As for the weight or gravity of this situation, it’s a major life decision–right up there with getting married, picking a school and deciding whether to have children.”

Q: You said in the past that a CEO should probably serve 10 years. You’ve served eight. What are your plans? Will you follow your own advice?

A: The first piece of advice I wish someone had given me as a freshman CEO is to keep your mouth shut. Somehow I didn’t get that advice, which is don’t talk about when you’re coming or when you’re going because it just creates a set of questions that probably aren’t productive.

–eBay CEO Meg Whitman, San Francisco Chronicle, Nov. 19, 2006

Looks like eBay CEO Meg Whitman may make good after all on her pledge that no CEO should stay more than a decade. Whitman, the public face of eBay for the past 10 years, is reportedly preparing to retire. She has been delegating more tasks to deputies over the last few months and is expected to decide on her retirement in the coming weeks, The Wall Street Journal reports, quoting “people familiar with the matter.”

John Donahoe, who joined eBay in 2005 to lead its auction business unit, is the leading candidate to succeed her.

Rumors of Whitman’s imminent departure come at a critical time for eBay. The company is due to report earnings for the fourth quarter tomorrow. And though this quarter includes the traditionally strong year-end holiday period, it will likely be marred by a general slowing in eBay’s core auction business and the company’s continued struggles with Skype, the Internet telephony outfit for which it recently took a $1.4 billion write-down.

So perhaps it’s a perfect time for Whitman to step aside. Certainly she leaves a storied career behind her. She led the company through its 1998 initial public offering, and from there through some 40 quarters of sequential revenue growth. An impressive achievement by any measure–Skype acquisition be damned. Now, maybe it’s time to move on to bigger things.

Much bigger. Like perhaps a position in the cabinet of friend and Republican presidential candidate Mitt Romney (shown below, left, with Whitman and VC Steve Jurvetson)? Whitman can’t be suffering through those Romney fund-raising telethons for nothing, right?

BEA Systems made good on its promise to allow the deadline to lapse on Oracle’s $17-per-share offer to buy the company. And Oracle made good on its threat to drop the bid. Minutes after 5 p.m. PDT yesterday, the deadline set by Oracle for BEA to agree to its offer, the company issued a terse, disdainful statement announcing its expiration.

On Oct. 9, Oracle proposed to acquire BEA for $17 per share. That offer expired today, Oct. 28, at 5 p.m. BEA shareholders should not assume that Oracle will renew its $17-per-share offer in the future.

“Over time many things can change: BEA’s business might materially weaken, the stock market can fall further from its recent record highs, or Oracle may have committed its capital elsewhere. Over the last 20 days, the BEA Board has repeatedly rejected our offer and refused to meet with us, even though we offered to meet without any preconditions. We asked the BEA Board to allow their shareholders to vote on our $17-per-share proposal. They chose not to. If the BEA shareholders are unhappy with the behavior of the BEA Board, it is up to those shareholders, not Oracle, to take the appropriate action.”

And by “BEA shareholders,” Oracle clearly meant one BEA shareholder in particular–Carl Icahn, who owns 13.2% of BEA’s outstanding shares, and has for some time now been pushing the company to put itself up for sale.

And Icahn did not disappoint. The billionaire investor filed suit against BEA, demanding it hold a shareholder meeting to consider the auction of the company. “BEA should allow its shareholders to decide the fate of BEA by conducting an auction sale process and allowing the shareholders to accept or reject the proposal made by the highest bidder,” Icahn wrote in a letter to BEA’s board. “BEA should not allow the stalking-horse bid from Oracle to disappear (failure to take the Oracle bid as a stalking horse would be a grave dereliction of your fiduciary duty in my view). If a topping bid arises, then all the better. But if no topping bid arises, it should be up to the BEA shareholders to decide whether to take the Oracle bid or remain as an independent company.”

BEA’s board, for its part, insists that it’s not opposed to selling the company, it’s just opposed to selling it to Oracle for $17 per share. But it may end up doing just that, given the company’s current financial situation and shareholder pressure that’s only just beginning to build. “BEA is in a tailspin,” Cowen & Co. analyst Peter Goldmacher told Bloomberg. “At $17, it would be a graceful exit for BEA, which has been in rough shape for a while. … BEA is badly miscalculating Oracle’s desire. Oracle doesn’t need BEA. At some point, Oracle will buy these guys, but it’s completely at Oracle’s discretion.”

Now that the Federal Communications Commission has voted to adopt only two of the ” ‘Four Opens’ of Successful Open Access,” the question on many minds is “Will Google bid in the upcoming 700MHz spectrum auction?”

In his July 20 letter to FCC Chairman Kevin Martin, Google CEO Eric Schmidt wrote, “should the Commission expressly adopt the four license conditions requested in our July 9 letter–with specific, enforceable and enduring rules–Google intends to commit a minimum of $4.6 billion to bidding in the upcoming auction.”

Are two out of four openness conditions enough for Google to make good on its pledge anyway? Because they’re good conditions: 1. Open applications, the right of consumers to download and utilize any software applications or content they desire; and 2. Open devices, the right of consumers to utilize their handheld communications device with whatever wireless network they prefer.

Certainly, it would have been nice to see the FCC adopt open services and open networks as well, but with incumbent telcos like Verizon and AT&T so vehemently opposed, it was probably never going to happen.

And Google likely knew this all along. So we return to the original question: Will Google bid in the spectrum auction? It just might, at least according to Chris Sacca, head of special initiatives at Google. Consider his comments during a recent interview with News.com:

Q: Google has recently said it would bid on the 700MHz spectrum only if the FCC guarantees certain open-access principles, including open access for companies wanting to buy wireless capacity wholesale. Does this mean that Google won’t bid on spectrum if the rules aren’t adopted?
Sacca: To be clear, what we said was not exactly that. What we said was that there had been some concerns that somehow imposing these openness principles on the spectrum might diminish its value at auction. And we wanted to reassure the FCC that embracing a path of full openness in the interest of users and the interest of consumers would not reduce the total revenue of the auction. And we wanted to put our money where our mouth is, and we are putting our money where our principles are. So we committed to spending a minimum of $4.6 billion in the auction, if they adopted all four principles.
Q: So it’s not out of the question that Google would participate in the auction, even if the FCC doesn’t adopt all four principles?
Sacca: We are deeply committed to changing this industry for the benefit of end users.”

There’s a little bit of the ol’ Google two-step there at the end, but Sacca does seem to suggest that it’s still possible that the company might bid in the auction.

The Federal Communications Commission will lay down the ground rules for the auction of the 700 megahertz wireless spectrum tomorrow, determine whether next generation wireless services will be controlled by an existing telco monopoly, an existing cable monopoly or a diversity of new network operators.

Should the FCC agree to the open-access requirements proposed by Google and others, we may see all manner of innovations in technology, pricing and quality come 2009. We’ll also undoubtedly see Google become even more ubiquitous as it leverages open access to extend its presence to handheld devices, etc. Should it toss them, we’ll still see innovations, but they’ll more than likely be ones that strengthen the existing business models of the incumbent telecom carriers. Carriers like Verizon, which have been mobilizing their artillery, rhetorical and otherwise, to destroy what Mary Brown, Cisco’s director of technology and spectrum policy, has helpfully ID’d as a misguided attempt to base regulation on the “worries of a $158 billion behemoth.”

“Google is attempting to ensure the FCC that the federal government can get a minimum price without a competitive bidding process,” Tom Tauke, Verizon’s executive vice president of public affairs, policy and communications, said earlier this month. “Google, of course, would get the spectrum at a bargain-basement price. The bottom line is this: Without Google’s rules, the government will get literally billions more for this valuable spectrum, and the taxpayers will be the winners. The integrity of the auction is critical to ensuring that the taxpayers and consumers receive the maximum benefit from this important public asset. And the best way to foster integrity is to encourage a diverse and competitive universe of bidders–a goal undermined by the Google plan.”

Exactly–if, by “a diverse and competitive universe of bidders,” you mean a coterie of major incumbents. Because according to the New America Foundation’s examination of the FCC’s 2006 Advanced Wireless Services auction, the incumbents have a real penchant for messing up the bidding efforts of upstart network operators. “The auction rules in the FCC’s 2006 Advanced Wireless Services Auction were manipulated to exclude new entrants to the marketplace from obtaining spectrum in favor of incumbent cable companies, wireless operators and telephone companies, which feared the competition those new entrants represented,” the study concludes. “… The targeted new entrants were met with a tacitly collusive strategy of blocking bidding, with coalitions of multiple major incumbents making bids for the apparent purpose of denying licenses to the new entrant rather than acquiring the licenses for themselves.”

Not satisfied with a compromise proposal from Chairman Martin that meets most of its conditions, Google has now delivered an all-or-nothing ultimatum to the U.S. government, insisting that every single one of their conditions ‘must’ be met or they will not participate in the spectrum auction. Google is demanding the government stack the deck in its favor, limit competing bids and effectively force wireless carriers to alter their business models to Google’s liking. We would repeat that Google should put up or shut up–they can bid and enter the wireless market with any business model they prefer, then let consumers decide which model they like best.”

–Jim Cicconi, AT&T’s senior executive vice president for external and legislative affairs

Oh, it’s on now. Google yesterday dismissed AT&T’s criticism of its conditional pledge to drop at least $4.6 billion on the Federal Communications Commission’s upcoming 700-megahertz spectrum auction, characterizing it as the rhetoric of an oligopolist more interested in monopoly profits than openness and innovation.

In a post to the Google Policy Blog, Richard Whitt–Google’s Washington telecom and media counsel–gutted AT&T’s argument that the search sovereign’s spectrum bid “is an attempt to pressure the U.S. government to turn the auction process on its head by ensuring only a few, if any, bidders will compete with Google.” Google isn’t out to skew the spectrum auction in its favor, said Whitt, it’s out to un-skew it, rejiggering it so it no longer favors incumbent carriers like AT&T who would like nothing more than to continue to operate in a “less than fully competitive” environment.

“Our position is simple enough,” Whitt explained. “FCC Chairman Kevin Martin and the other commissioners have argued persuasively that we need a real third-pipe broadband competitor in this country. They also believe that the upcoming 700 MHz auction is the best way to get there. All we are saying is that, based on what we know, new broadband competition will emerge from the upcoming auction only if the FCC’s rules allow it to happen. For Google, and other potential new entrants, the prevailing imbalance can be corrected most effectively by introducing license conditions based on open platforms. … While Google embraces the kinds of openness and innovation that are the hallmark of the Internet, the incumbents apparently prefer their existing business models. That of course is their prerogative. However, open platforms–specifically, open applications, open devices, open wholesale services and open network access–together make the spectrum more valuable to Google, or any other potential bidder seeking to create innovative, higher-speed, lower-priced offerings.”

Clearly, Google does not intend to “shut up,” as Cicconi suggested it should. But it will “put up” a wireless business given the chance. Perhaps even one created with the help of the smaller carriers being squeezed out of the market by the AT&Ts and Verizons of the world. “We see a lot of companies in this space who we would love to collaborate with,” Google’s Chris Sacca told Bloomberg. “There are a lot of folks who would love to compete.”