Fair Play: AT&T’s Remaining Argument for the Time Warner Deal


Antitrust deciphered.

ATT Blog 2

The narrative that President Donald Trump’s dislike of CNN caused the Justice Department to unfairly block AT&T Inc. from buying Time Warner Inc. just won’t die. But after last week, it could be on life support in the courtroom.

AT&T will need to focus on its other argument about why the merger should clear. It says the merged company will be better situated to compete in a rapidly-evolving video industry that includes giants like Google Inc., Apple Inc., and Amazon.com. The outcome of the trial will likely turn on that assertion, which has garnered less attention in the press. The trial begins on March 19.

The “Trump was involved” angle is being treated as a sideshow in court. U.S. District Court for the District of Columbia Judge Richard Leon Feb. 21 put the brakes on AT&T’s request for DOJ documents that AT&T said might lead to evidence that the White House meddled in the merger review. AT&T made a big ask – for all the exchanges between the DOJ and the White House about the merger and all the email correspondence between the antitrust division and the White House about it. But Leon said the log of written exchanges that the DOJ has already surrendered “indicates that there were ‘no untoward’ communications between the White House and the antitrust division.”

Judge Leon’s ruling that AT&T can’t access those documents effectively closes the door on AT&T’s argument that the DOJ is singling out its Time Warner merger for a punishment that it didn’t bestow on other deals, namely Comcast Corp.’s 2011 merger with NBCUniversal. AT&T can still raise the “You said they could, so why can’t we?” argument at the trial, but since it can’t look for any evidence that the DOJ was demonstrating favoritism, it’ll make for a short presentation.

That leaves the core legal argument that AT&T and Time Warner must merge so they can compete with the likes of Big Tech. It should ring familiar to anyone following the recent spate of merger announcements. CVS Health Corp. and Aetna Inc. are trying to team up to compete with Amazon when it comes to prescription delivery. Albertsons Cos. Inc. and Rite Aid Corp. want to merge for the same reason. 

If that argument carries the day, AT&T will have made the first successful entrée into an unbreached antitrust sphere – how to take on companies like Amazon and Google. That’s tricky in traditional competition analysis because it’s hard to pin down exactly which markets Amazon, Google, or Apple compete in, especially in a field as amorphous as video. Those tech companies don’t fit neatly into any one industry categorization. AT&T, by contrast, is clearly a telecommunications and internet provider.

AT&T has the ability to mount a Big Tech defense. It devoted more than half of its response to the DOJ’s complaint to the evolving video industry and the challenges facing a conventional pay-TV company. How does DirecTV, which AT&T owns, compete with YouTube TV, Snapchat Olympics coverage, or Twitter-streamed NFL games? Google is one of the most powerful companies in the world, AT&T says, and its presence means an AT&T/Time Warner tie-up is necessary to improve competition. 

The government claims the merged company would have too much power over rival distributors who need “must-have” content like HBO’s Game of Thrones or, even if Trump doesn’t think much of it, CNN. AT&T will all but own that market and dictate its terms if the merger proceeds, the DOJ says.

Judge Leon has made it clear that he doesn’t want to waste precious trial time on debate about the rightness or wrongness of DOJ’s past decisions or about any antipathy some members of the administration might have for Time Warner’s CNN. That means the discussion, and his decision, will shed much-needed light on how to look at the fast-evolving video market and how to peg dynamic tech companies like Snapchat.

No matter what happens, it will put some meat on the bones of the burgeoning question of how competition and technological development mesh.

What’s Happening

On Monday, the U.S. Supreme Court will hear oral argument in Ohio v. American Express Co. about how to analyze markets that serve two distinct sets of customers.

Also on Monday, Stanford University economics professor Alvin Roth will give the inaugural Jackson-Nash address at Justice Department headquarters. The speech series honors former Supreme Court Justice Robert Jackson and Nobel Laureate economist John Nash. Roth’s speech is titled “Who Gets What and Why.” Makan Delrahim will also make an introductory presentation.

On Tuesday, the House Judiciary Committee will hold a hearing about antitrust issues in the pending CVS-Aetna deal.

On Wednesday, the Senate Commerce Committee will vote on four nominees to sit on the Federal Trade Commission.

Quote of the Week

“We have not yet closed the gap in the area of unilateral conduct. European competition law still imposes a ‘special duty’ on dominant market players, while we in the U.S. do not believe any such duty exists.”

--Makan Delrahim, speaking in Brussels about the differences between U.S. and EU competition philosophy, particularly in digital technology.

Want to be alerted to the next post? Contact Fawn Johnson at fjohnson@bloomberglaw and you’ll be added to the list.