7 Reasons Why The AT&T/TW Trial Matters So Much The Future of Antitrust

[Commentary] Whether the AT&T-Time Warner deal goes through or not is super important for all the usual reasons relating to media concentration, competition in telecommunications, and all that other stuff I usually care about. But the AT&T/TW trial raises a lot of super important questions for the future of antitrust enforcement. Specifically, does antitrust law care about vertical integration or not? If antitrust law no longer cares about vertical integration, or adopts a presumption that makes it harder (than it already is) to prove a case challenging a vertical merger, that will have huge impact on what kind of deals we see move forward — not just in the entertainment industry or telecommunications industry but pretty much in all industries. By contrast, if the DoJ wins — especially on the coordinated effects argument (I’ll get to that later) — it may put the breaks on major merger activity (at least while Delrahim is at DoJ). It will have ripple effects beyond whether Comcast tries to buy News Corp assets. It would potentially have substantial impact on future acquisitions by platforms such as Amazon, Facebook and Google as these platforms seek to expand from their existing markets into new markets. Also at stake is the question of whether or not the government needs to consider a proposed behavioral remedy when contemplating a merger, or whether the DoJ can simply decide “nope, its divestiture or nothing.” Likewise, since everyone keeps pointing back to Comcast/NBCU, it raises the question of whether a settlement creates some sort of legal precedent (either with regard the nature of the market or the nature of any proposed remedy). Finally, the rather important question of what you need to prove (and how you have to prove it) is subject to a lot of argument in the pre-trial briefs.

1. Does Antitrust Law Care About Vertical Integration? And Does It Have a Different Standard Than Horizontal Integration?
2. Statements By The Parties v. Expert Testimony, or Fact v. Theory. 
3. Do We Still Believe The Basic Cable Market Power Story? What Is The Relevant Market These Days?
4. Is There A Threshold Amount On Monopolization/Price Increase? Do Efficiencies Counter Small but Significant Non-Transient Increase in Price?
5. Comcast/NBCU: Is It Relevant? Precedent?
6. AT&T’s Proposed Remedy: Do You Get To Chose Your Own Remedy? Does The Government Have To Consider It?
7. The Return of the Coordinated Effects Doctrine?

[Harold Feld is Public Knowledge's Senior Vice President]