Net Neutrality Could Become a Merger Antitrust Issue. Someday.

Watch for network neutrality arguments in future antitrust analysis of mergers, competition lawyers said. The Justice Department’s high-profile attempt to block AT&T from buying Time Warner didn’t address the possibility that the AT&T customers could see slowed internet traffic for some content. But that kind of argument could come up one day. The DOJ has looked at past merger cases on the grounds of its impact on open internet access said Ketan Jhaveri, a former trial lawyer at the DOJ’s Antitrust Division. “If net neutrality were to come up, it would come up in a merger of [internet service] providers,” he said, adding that those legal arguments are likely a long way off. Allegations that a merged AT&T-Time Warner could throttle streaming content from rival ISPs would have improved the government’s case that the merger would cause harm. “But they couldn’t do that,” said Blair Levin, a former chief of staff at the Federal Communications Commission in both the Obama and Clinton administrations. If the DOJ told a court that the combined AT&T-Time Warner would slow internet speeds for rival content services, it would have undermined the FCC’s successful push to undo net neutrality rules, Levin said.