Judge In AT&T Merger Ruling Had Zero Understanding Of The Markets AT&T Now Dominates
from the net-neutraliwha? dept
So, we already discussed how the Judge that let the AT&T merger proceed showed a comically narrow reading of the media and telecom markets when he approved AT&T's $86 billion Time Warner merger without a single condition. At no point in his 172-page ruling (pdf) did U.S. District Court Judge Richard Leon even utter the phrase "net neutrality," showing a complete failure to understand how AT&T intends to use regulatory capture, vertical media integration (ownership of must-have content like HBO) and its stranglehold over broadband markets in synergistically anti-competitive ways.
Leon focused almost exclusively on bickering between AT&T and DOJ-hired economists over whether the merger would result in higher rates for consumers (which, if you've watched AT&T do business should be a foregone conclusion). But because U.S. antitrust law is already ill-equipped to help police these kinds of vertical integrations, DOJ economists were locked into very specific confines of economic theory, even if it should be obvious to everybody and their uncle that AT&T will use its ownership of CNN, HBO, and other media properties to jack up licensing costs for streaming competitors.
Of course higher costs for licensing (which in turn means higher costs for consumers) is just one way AT&T intends to leverage its greater scale anti-competitively. It also couldn't be more clear that with net neutrality rules out of the way, AT&T has an absolute arsenal of creatively anti-competitive tools at their disposal, whether that means hijinks at interconnection points (something else Leon likely has never heard of), to the use of usage caps to "zero rate" AT&T's own content, while still penalizing competitors like Netflix.
Amusingly, even many of the Wall Street analysts that have routinely cheered on this kind of behavior were quick to point out how Leon appears entirely oblivious to these additional layers of potential pitfalls. For example Wall Street analyst Craig Moffett, who once heralded broadband usage caps as the pinnacle of modern technological achievement, was quick to point out in a research note to clients that Leon had completely missed the forest for the trees:
"The DOJ focused entirely on the risks that would arise from joint ownership of DirecTV and Turner’s cable networks (recall that they even proposed divestiture of one or the other as a preemptive remedy)," said Moffett. "And, therefore, so did Judge [Richard] Leon. Neither ever even raised the issue of whether there might be a more material competitive harm arising from the combination of Turner programming and an ISP."
"The theoretical harm here is obvious," he says. "A wireless or wired ISP, now unfettered by net neutrality regulations, could, in theory, advantage its own content over the content of others, either by zero rating (that is, not counting owned-and-operated content against monthly data caps), by prioritizing (the old fast lanes/slow lanes chestnut), or even by adopting a regime of content exclusivity."
Many analysts believe Leon's myopic ruling set precedent that will result in the DOJ being less likely to police future, major deals in this space, whether it's T-Mobile's competition and job eroding merger with Sprint, or Comcast's latest $65 billion effort to acquire Fox. This slow but steady consolidation in both the media and telecom space will, slowly but surely, mean less overall competition in broadband, fewer diverse options in terms of local reporting, and higher rates for everybody in the chain.
ISPs (and their ocean of dollar per hollar policy folks) have been immensely successful in claiming that ISP oversight must be stripped away if ISPs are to compete on a "level playing field" with Silicon Valley in the ad and streaming wars to come. But as some were quick to note, this intentionally ignores ISPs hold a natural monopoly over the broadband last mile, making the regulatory approach to dealing with ISPs notably different than companies like Facebook (which you can, with a few minor exceptions, choose not to use):
"But neither Facebook nor Google owns the ultimate distribution layer of the consumer connection to the internet. They aren’t the world’s largest telecom company. Neither is Netflix or Amazon or any of the other companies AT&T and Time Warner are afraid of. (Yes, I know Google owns Google Fiber, but that has been more failure than success.)
Tech companies might have vertically integrated the creation and production of content with consumer-facing apps and services, but they all depend on internet connections to reach their audiences. And those connections are increasingly wireless. AT&T and Time Warner aren’t trying to catch up to Netflix by merging; they’re trying to step ahead of them in line by marrying Time Warner’s content to AT&T’s network."
Again, this idea that natural broadband monopolies require different and tougher rules because they're different is something ISPs like to play dumb about. But again, the idea that the domination of media and broadband in concert could be a real problem (especially for startups and small businesses) isn't something Leon bothers to seriously think about at any point in his 172 page ruling. Despite the fact that the obvious harm caused by letting a handful of companies dominate the pipes to the home and the content running over it is becoming painfully apparent in the Comcast era.
As companies like AT&T, Comcast and Verizon beef up with media acquisitions in the hopes of challenging Google and Facebook in the media space, the rules governing the potential downsides of these deals are being routinely stripped away. Whether that's the death of net neutrality (which also gutted the lion's share of FCC authority over ISPs) or the steady assault on decades-old media consolidation rules, for too many are dumbly looking the other direction as these companies try and build a decidedly dystopian broadband and media future.
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Filed Under: antitrust, competition, consumer welfare, doj, merger, net neutrality, richard leon, zero rating
Companies: at&t
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1982 - Monopolies are bad, let's break this huge monstrosity and improve competition!
2018 - Let's consolidate anything and everything into giant monopolies because this will be awesome for competition.
What could possibly go wrong?
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You don't have any moral grounds for complaints when you get into bed with the devil!
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So I'm curious why it looks like you are asserting that they do support the FCC.
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The FCC is on record as "officially" being pro-monopoly as it is part of their mission statement when they were founded and this is to... "regulate them as natural monopolies".
They really are not natural monopolies, they are only monopolies because government granted them those monopolies and just called them natural to trick people and many folks bought the deception.
Since the FCC is Pro-Monopoly and Ninja wants them to keep their regulatory power, he no longer has the moral standing to complain. If the FCC was being deceptive about their views on monopoly then sure Ninja would have standing but that is not the case here. FCC is only being deceptive about how they are trying to regulation not that they are pro or anti monopoly... that was settled nearly a century ago.
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That's... really not what that means.
"They really are not natural monopolies"
Oh look, another term whose definition you don't understand. Shocking.
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Natural MONOPOLY is the "original" version of MONOPOLY, the one that is not "TSar Wars Monopoly" or "Lord of the Rings Monopoly" or The "Simpsons" Monopoly.
You Syocophantic "idiots" are Wrong "again" about the Things that I KNOW. I know LOTS aof Things, because I am Smart. You can TELL that I am "smart" because I talk "so Much" about how SMART I am. That is Defianlty a THING that smart PEOPLE "do". My Smartness about "natural" MONOPOLIS and REGULATIONS and "apknt" chips CANOT be Denied!
Every Nation eat sthe Paint "chips" it DESERVES!
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I can prove they are not.
There is no limit to how many wires or poles we can put down. The limit on them is arbitrary for the purposes of appearance. Additionally they are not natural because of "high cost" excuses. The cost is also not high enough to call it a natural monopoly either, that is just a farce clowns like you advance because you don't know what you are talking about.
Google Fiber had more than enough money but they still gave up because of those "regulations" the FCC and locals made that helped keep the incumbents entrenched.
PaulT, you and TD are nothing more than mouthpieces in service to the telecom lobby because you are ignorant to such a degree that you actually wind up helping them in your vain attempts to harm them. I do not understand how you can be this stupid.. but I suspect it is due to political tribalism. Your politics demand that your solutions can only go one way, facts or history be damned!
Piss off, you know too little to help and the solutions you have across the pond will not work over here because our government operates differently.
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First: I'm not pro-FCC. I did agree with how the FCC was doing things under Wheeler. I'm pro-consumers. Or rather, pro-people. Monopolies are not good for anybody except a few privileged so it's the govt's duty to regulate monopolies when they can't be avoided (ie: electricity, telecom etc).
"There is no limit to how many wires or poles we can put down."
Yes there is. Having worked with the underground I can assure you that it's an overcrowded mess at some points. Having multiple stances of infrastructure is desired for redundancy but there are limits both physical and financial.
"The cost is also not high enough to call it a natural monopoly either"
Yes it is. Go try to start an ISP and come back to tell us about the capital costs. Or point us to the infinity of startups deploying new network, we'll wait.
"Google Fiber had more than enough money but they still gave up because of those "regulations" the FCC and locals made that helped keep the incumbents entrenched."
Regulatory capture all over. Bought by the incumbent players (remember, already powerful because of the natural monopoly thing?). It doesn't mean there's no need for regulation.
"Your politics demand that your solutions can only go one way, facts or history be damned!"
Please, go look in the mirror.
"Piss off, you know too little to help and the solutions you have across the pond will not work over here because our government operates differently."
And yet he has unlimited, quality internet access and the US is struggling. Sounds like one of the governments is doing it somewhat right while the other isn't. And in the UK regulations are much stricter. Go figure.
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He is quite possibly right in that it's something about US politics makes it far too easy for corporate influence to make regulators give them what's best for them rather than what's best for the public. But the answer to that is still not to get rid of the regulation.
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Apart from the problem that people will object to a forest of poles, there are real problems in providing the necessary height clearance when one companies wire have to cross the routes of another companies. It is desirable for poles to be spaced far enough apart that a falling pole will not hit any cables. Two sets of poles down a street, minimum height for crossing the street on one side, and higher on the other side is about the practical limit, and their is a limit to the number of cables a pole can support due to weight and wind loading, and where relevant ice loading.
Ducted underground routes are only slightly better, as depth separation for crossing routes is less that cables in the air, but it rapidly becomes extremely expensive to excavate the trenches for a new route, as it takes a man with a shovel to excavate the trench within three or four feet existing underground infrastructure, and getting a new duct in when it goes under another ones every couple of feet is a tricky operation as it should not be allowed to drag on whatever is already under the ground. it will also take a lot of fussy manual work to back fill the trench, as it is necessary to ensure that the fill is properly packed under every duct.
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Explain to me how AT&T is going to allow Google to use its poles when we get rid of that rule when we already know they abused the letter of the rule to slow down Google fiber deployment? That was the crux of the lawsuit against the updated pole attachment rules (one touch make ready), that it was an onerous burden on their property rights. Without some establishment of rules of conduct, there would not be an ability to share poles at all. As other posters have noted, there are actual practical problems with more poles. And trenching is actually worse in this regard.
And having worked for a plumbing company, there is a serious issue with trenched infrastructure already, and its costs are even higher than pole attachment.
But the big issue isn't purely $$$$. Its time, cost, and the time it takes to recoup investment. See, you need more than just the money to build the network. You need the time to build it, you need the money and time to gather a profitable user base in a market known for several year long contracts that will slow market shifts toward competitors. That could easily take 5 years after the build out is complete. Then they need to wait 10-20 years after that point to recoup that investment. And the investment market which discourages heavy capital investment means few companies are large enough to have the cash and partners to make that build out (Standard build outs are in the billions of dollars), and to maintain until they establish profitability in a more competitive (and therefore smaller in potential) market. If you don't consider Billion dollar build outs a high burden, you maybe aren't in the same income space as the rest of us. Enjoy your gold space station dude.
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Is this what you are really advocating?
Irregardless of how it LOOKS, this is flat out UNSAFE, for the workers, the the cities involved, for EVERYONE. And THIS, is what you are advocating.
Instead of Treating all data as equal, you are advocating EVERYONE put up their own lines.
You, sir, are an idiot.
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The definition of a natural monopoly is as follows:
"A natural monopoly is a monopoly in an industry in which high infrastructural costs and other barriers to entry relative to the size of the market give the largest supplier in an industry, often the first supplier in a market, an overwhelming advantage over potential competitors. "
How does this not apply?
"Additionally they are not natural because of "high cost" excuses."
That's literally the definition!
"Google Fiber had more than enough money but they still gave up because"
...the barrier to profitable entry was too high, even for them. Blame who you want for that situation, but if Google can't do it, who else will?
"PaulT, you and TD are nothing more than mouthpieces in service to the telecom lobby"
Yes, someone sitting thousands of miles away talking about my personal experiences is an industry shill. Whatever it takes to make you think that your support of corporations screwing you is someone else's fault!
I'm sorry you're too pig-headed to accept truth, but I'll continue to provide it.
"I do not understand how you can be this stupid.. but I suspect it is due to political tribalism"
Not, it's because I'm literally sitting at a free, regulated connection that's better than yours while you claim that this is impossible.
"the solutions you have across the pond will not work over here because our government operates differently"
Then address the problems you have with your government rather than attacking people for showing you the things you claim are impossible.
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I Know what a Natural "monopoly" means! You can Tell I know what it Means because I "say" it All the Time. What, you THINK I "would" just Use a "word" a Bunch of Times if I didn't "understand" it! You sycophant!
Every Nation eats the Paint chips it "deserves"!
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"There is no limit to how many wires or poles we can put down."
"...you are ignorant to such a degree..."
I bet the irony of these two claims goes right over your head.
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"It is no secret that Ninja and TD in general are Pro FCC."
Ninja and TD in general are pro-consumer. If the FCC's actions benefit consumers they will be and have been praised for it. If the FCC's actions hurt consumers they will be and have been criticized for it. Only the intellectually stunted would think someone has to choose between being rigidly pro-FCC or anti-FCC.
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...because legacy companies like AT&T placed the barrier to entry so high that even a company the size of Google decided it wasn't worth competing on that level.
I believe he missed the most important part there. No small local ISP will be able to compete on a content level, so if the larger companies also can't compete with the last mile infrastructure, there's a major problem. Which, of course, everyone who knows what's going on already knew.
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The FCC and the local governments placed those barriers... NOT ATT. The only thing ATT is guilty of is beating the idiot voters at their own game.
"You want to regulate us? Fine, we will just buy your regulators and buy the regulations we need to entrench ourselves, and just think... you "gave us" the agency to do just that!"
~Every Business with a lobbyist.
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So, they had no hand in it? Weird, don't you just go on to say later that they were being lobbied? Why, it's almost as if you don't know what you're talking about and just throwing out a bunch of anti-regulation nonsense.
Once again, I'm glad I live somewhere that effective regulation enforced local loop unbundling, rather than your preferred situation. The real cure for cancer is not to throw the patient in the morgue.
"Every Business with a lobbyist"
Yes, lobbying is a bad thing that's clearly having negative results on some parts of your infrastructure. The answer to that is not "let's remove all regulation and mock those who support effective regulation". But, that is your preferred stance, as ever.
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And even then you'd both have to fight Ajit Pai for that position.
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I'm not sure how the FCC is involved in pole attachment rules.
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but you are consistent with your lies.
"I don't think verifiable facts will really help."
that would be your problem... nice projecting there.
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Wait, I thought that was you.
GASP! You have facts and PaulT doesn't?! Where? Let me see! Are pigs flying? I don't see any facts you've posted.
Oh, that's right, you don't have any facts and he does. Whew, I was worried the world was coming to an end for a second there.
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Agree and is actually what created the "natural monopoly" and it was the government through regulation that allowed ATT to own them. That ownership needs to be removed and made public just like the public highways.
The monopoly can be destroyed, but we don't do that because idiots like TD and PaulT just do not get it.
Tell me, why should it be okay for ATT to own public property like this? I know why, can you figure it out?
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Now, that said, I do think that local loop unbundling is the way to go and last mile internet access should be regulated as a public utility, minus the price regulations. That would open it up for any internet company to run their own service over infrastructure that's already there. The problem would be figuring out (and enforcing) who pays for maintenance and upgrades.
The rest of your comment is just so much crap, and the idiot in the room is not PaulT.
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I'd say price regulations are still necessary, as the internet is a non-optional service for so many people these companies are known to price gouge where they still have effective monopolies (which are likely to continue for a number of years until competitors have been able to infiltrate their markets). I can understand why someone would be against those, but I think that for vital utility services, the public good overrides the maximisation of corporate profit.
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I'm willing to at least give it a shot, and if it doesn't work, we can slap them with price regs. But, we actually have to get to that point first. In the meantime, yeah, price caps may be necessary.
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Now, if you can't deploy redundant infrastructure regardless of the motive then you have a natural monopoly. If you have a monopoly created via regulations it's regulatory capture. It CAN be both regulatory capture and a natural monopoly which is what's happening with the broadband sector in the US. Go read about MaBell and the process that split it up, go read about other models. Inform yourself so you won't look like a fool every time you open your mouth.
"That ownership needs to be removed and made public just like the public highways."
Oh, go the "communist" way then (please read with sarcasm). Seriously, you are funny.
"Tell me, why should it be okay for ATT to own public property like this?"
Because they built the infrastructure, not the govt?
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No conditions
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Re: No conditions
"Meh, these guys will probably break the law no matter what bail conditions I set, so I just won't bother".
"This guy's going to drive whether or not I get his licence revoked, may as well let him keep it"
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Re: Re: No conditions
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I'd say it's the lobbying rather than the judge's ability with technical subjects that's the issue there, but having no underlying knowledge of the industry probably doesn't help.
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Sounds right? I don't think so. While you can't possibly expect a judge to be an expert on every single subject at the very least he/she should research about it or at the very least call their own independent experts on the issue. The court itself should employ a varied range of people from the main areas (say, health, biology, engineering etc) to check the works of external professionals.
We should expect judges to be smart enough to get information and deliver reasonable rulings. They don't need to be experts at everything, they just don't need to be dumbasses.
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Perhaps we need to demand they understand the things they are ruling on.
Hell that alone would put a majority of Congress out of a job as they often ignore reality because the lobbyist promised them something.
Sort of like that office Congress refuses to fund to explain tech to them in a nonpartisan way, that would screw up their ability to play ignorant. If the Judge can remember getting ice delivered for the ice box, I am doubtful of his ability to understand streaming technologies.
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You know?
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And yet still came to right decision! -- In current milieu.
However, **there's no point worrying about THIS mega-merger while leave Google and Facebook to grow.**
And by the way, for any new readers: this minion re-writer ALWAYS attacks ATT and at best omits all mention of Techdirt's favored corporations, let alone criticize. -- WHY does Techdirt never attack Google? Just take the Copia link to see the site's "sponsor".
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Re: And yet still came to right decision! -- In current milieu.
ATT, like Google and Facebook, and all other corporations which get TOO BIG to manage, should be broken up into tiny pieces
And yet still came to right decision
...Well, if you're not going to stay consistent at all, why bother doing so in the same comment?
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Re: Re: And yet still came to right decision! -- In current milieu.
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Re: Re: Re: And yet still came to right decision! -- In current milieu.
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Though I do suppose most of what you write is an insult to logical argumentation in paticular, and the English language in general.
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Re: And yet still came to right decision! -- In current milieu.
What does this even mean? I'm sorry but just because a company is extremely large, doesn't mean it's automatically bad. And yes, if ATT had multiple competitors in every area, it's size would be just fine. It's the lack of competition that is the problem. Google and Facebook have no lack of competition, unlike the mobile and broadband industries.
See above comment.
Never? Bold move, let's see how that works out for you.
https://www.techdirt.com/articles/20180621/17585940086/wikipedia-makes-case-google-facebook-to- give-back-to-commons-rather-than-just-take.shtml
https://www.techdirt.com/articles/20180419/16184539 674/bad-decisions-google-screws-over-tools-evading-internet-censorship-regimes.shtml
https://www.tec hdirt.com/articles/20180502/00222239754/amazon-joins-google-making-censorship-easy-threatens-signal- circumventing-censorship-regimes.shtml
https://www.techdirt.com/articles/20170316/18100036936/this-w ont-be-abused-all-google-offers-tool-to-flag-downrank-offensive-search-results.shtml
https://www.tec hdirt.com/articles/20180604/13223539964/google-fiber-broadband-hype-replaced-delays-frustration.shtm l
https://www.techdirt.com/articles/20180611/23125540015/hey-google-stop-trying-to-patent-compressio n-technique-inventor-released-to-public-domain.shtml
Wow! Look at all those times TD NEVER criticized Google. Would you like some ice with that burn? How about some cheese with that whine? Woops, my bad, you've already got swiss cheese because your lies are so full of holes.
Google is far from the Copia Institute's only sponsor and it appears it's not even their biggest one. Your argument is invalid.
Any new readers are likely smart enough to see your comments for what they are: a pack of disingenuous lies pushing an irrational agenda of hate against companies who actually dared to innovate, upset the status quo, provided services people actually like and want to use, and in the process got insanely rich doing it.
Jealous much?
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Re: Re: And yet still came to right decision! -- In current milieu.
That's what gets me. He's been on here for years - years! - harping on about that page as if it proves something. Yet, even by the standards of his own "evidence", it proves nothing about coercion unless he can show the other companies on the list also have editorial control. The fact that this was not a link discovered by him, but publicly and openly announced on the Copia page since day one, is just the icing on the cake.
Well, that and the companies he has such an obsession with attacking are the same places people can go to disprove most of his claims rather easily.
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Re: Re: Re: And yet still came to right decision! -- In current milieu.
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Re: Re: Re: Re: And yet still came to right decision! -- In current milieu.
This illogical tactic started with Copia, but it sure as hell didn't start the whole obsession.
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...this is our local hobo who screams endlessly about how he hates this site for reasons that have nothing to do with reality, but still comes here daily. Best to avoid eye contact.
"Just take the Copia link to see the site's "sponsor"."
Automattic? Namecheap? Yelp?
You still haven't explained why the publicly displayed full disclose about that site's sponsors is both a "gotcha" and why Google are the only sponsor that matters out of the list.
I doubt you never will, but your mental illness doesn't seem to be improving.
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...this is our local hobo who screams endlessly about how he hates this site for reasons that have nothing to do with reality, but still comes here daily. Best to avoid eye contact.
And whose own statistics state that this site never gets new readers save for 27 lonely Bangladeshis. You'd think by his own damn stats he wouldn't be worried about an "insignificant" "pirate" site. But RIAA cocksuckers were always terrible when it comes to math.
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Maybe he is a failed artist, and finds the RIAA line about Google destroying the music industry more palatable than his lack of any real ability.
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Re: And yet still came to right decision! -- In current milieu.
This merger required court approval. The court hasn't yet had reason to look at Google and Facebook. If Google wanted to merge with Facebook or Apple we'd see some worrying.
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Courts say ignorance is no excuse.
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The judge never mentioned "Net Neutrality"
As the cited expert, Craig Moffett, stated "The DOJ focused entirely on the risks that would arise from joint ownership of ... cable networks". Judges are supposed to rule on the evidence and arguments brought be before them (this is idiot, IMHO, but that is the rule at the moment).
A previous poster mentioned the venerable Judge Alsup, who taught himself to code in order to make an informed ruling. While an excellent example that I think all judges should follow (i.e. knowing some stuff about what they are ruling on), Alsup did so because both sides where making arguments that hinged on the nature of programing and coding. If neither side brought up Net Neutrality, then under the current rules, its not up to the judge to bring it up (it should be, but it is not).
In my opinion, the fault for this resides on the shoulders of the DOJ, rather than the judge.
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Re: The judge never mentioned "Net Neutrality"
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Imagine if the companies which light bulbs were the only power utility available to you.
Imagine an entity that sold bottled water and owned the rights to your town's reservoir.
When a single company can own the destination good and most/all the means to access that good it can do many bad things. Will an enormous content creator with a stranglehold on how you access content use this influence to empty your wallet? I don't know, I'm not a fortune teller. History and cautious skepticism both say "yes" though.
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Was it the judge...
"The DOJ focused entirely on the risks that would arise from joint ownership of DirecTV and Turner’s cable networks (recall that they even proposed divestiture of one or the other as a preemptive remedy)," said Moffett. "And, therefore, so did Judge [Richard] Leon..."
If the evidence and theory aren't presented to the court, how much outside/common knowledge is a judge allowed to apply to a case?
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Re:
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