In the end, AT&T and Time Warner were able to win the case on antitrust grounds, successfully arguing that their so-called vertical merger – combining businesses that are not direct rivals – would not pose a significant harm to customers by raising prices or limiting options. Cox Communications and Dish-owned SlingTV told the judge that the merger would leave them unfairly hindered in negotiations for Time Warner programs.
A federal judge approved the $85 billion merger between AT&T and Time Warner on Tuesday, delivering a major blow to the Justice Department’s effort to block the mega-deal opposed by President Donald Trump.
U.S. District Judge Richard Leon, in a 172-page decision, rejected the government’s position that allowing the two companies to combine could lead to higher television bills for consumers and stifle media competitors.
Leon further admonished the government for failing to prove any of its arguments. And he strongly encouraged the DOJ not to try to hold up the deal pending further litigation. The companies are seeking to close on the deal by June 21.
“The parties waged an epic battle,” the judge said from the bench. “The court has now spoken. … The defendants have won.”
The decision is a significant legal victory for AT&T and Time Warner, which argued that combining forces will allow them to offer more innovative products and better compete with tech giants like Google and Facebook for advertisers and customers.
"We look forward to closing the merger on or before June 20 so we can begin to give consumers video entertainment that is more affordable, mobile, and innovative," AT&T’s general counsel, David McAtee, said in a statement.
The Justice Department’s antitrust chief, Makan Delrahim, said he was "disappointed" in the decision and still believes it will result in a less competitive and innovative pay-TV market. Speaking to reporters outside the courthouse, he said, "We’re going to have to review the opinion to see what impact it will have on other mergers."
The merger, which would combine one of the nation’s leading telecom companies with a media and entertainment behemoth that includes HBO, Warner Bros. and CNN, has faced political turbulence since the companies announced it weeks before the 2016 election.
At the time, then-candidate Trump called the merger “too much concentration of power in the hands of too few” and vowed that his administration would block it. Trump’s frequent bashing of Time Warner-owned CNN raised fears among the companies and some Democrats that his populist approach to the deal is fueled by animus toward the news network.
The companies sought to make an issue out of possible White House interference in the DOJ’s antitrust review, but Leon shut that down early in the trial, rejecting an effort to explore whether the White House had communicated with the DOJ about the deal. Rudy Giuliani, now part of Trump’s legal team, re-stoked that controversy last month by declaring that Trump "denied" the merger – a comment he later walked back.
In the end, AT&T and Time Warner were able to win the case on antitrust grounds, successfully arguing that their so-called vertical merger – combining businesses that are not direct rivals – would not pose a significant harm to customers by raising prices or limiting options.
Their legal victory could give comfort to other companies eyeing merger deals. Already, T-Mobile and Sprint are seeking permission to merge. Disney and Comcast are each vying for chunks of 21st Century Fox, a bidding war that reports indicate could kick off as soon as this week now that the merger has gotten the green light.
The AT&T-Time Warner deal has become something of a test case for corporate consolidation under Trump.
The companies moved quickly to readjust their lobbying strategy after Trump’s surprise victory in November 2016. AT&T CEO Randall Stephenson made the trek to Trump Tower the following month – and, it later emerged, the company hired Trump’s personal attorney Michael Cohen as a political consultant, paying him $600,000 for advice on the incoming administration.
AT&T and Time Warner made the calculation that Trump regulators, despite the president’s campaign rhetoric, would ultimately look favorably upon big corporate mergers like theirs, in line with mainstream Republican views. On top of that, the companies noted that their vertical merger was the kind of transaction that had passed muster with administrations of both parties.
But Trump’s Justice Department, under the president’s hand-picked antitrust chief Delrahim, has been articulating a different philosophy. Despite giving a pre-election TV interview in which he said the merger did not appear to pose an antitrust concern, Delrahim has since spoken about the need for corporate breakups or other "structural remedies" to address problematic deals.
Before filing the lawsuit, Justice Department attorneys floated scenarios in which the deal could be approved if the combined company agreed to sell off either DirecTV or Turner Broadcasting, which houses CNN. The marriage of those two units, however, is the whole point of the deal, the companies argued.
The six-week trial in Washington saw attorneys for the government and the companies lock horns over whether the merger would help or harm consumers, specifically the millions of households that pay for television from cable and satellite providers.
The companies contend AT&T can offer more innovative digital products if it owns Time Warner’s vast trove of content, allowing its DirecTV unit to compete more aggressively with the likes of Netflix, Amazon and Google for customers and advertisers at time when viewers are cutting the cord in favor of online options.
The DOJ, instead, described a legacy player trying to hobble new challengers. The government warned that by threatening to charge more for or withhold "must-have” programs from competitors, AT&T could raise prices for consumers and limit their viewing options.
Each side trotted out industry leaders and economists to build their case. Cox Communications and Dish-owned SlingTV told the judge that the merger would leave them unfairly hindered in negotiations for Time Warner programs.
Stephenson and Time Warner CEO Jeff Bewkes also took the stand, rejecting the DOJ’s argument that raising prices or withholding shows from competitors is in their business interest.
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