After AT&T Jacks Up Prices Post Merger, DOJ Decides To Appeal Court Loss
from the if-at-first-you-don't-succeed... dept
AT&T recently defeated the DOJ's challenge to their $86 billion merger with Time Warner thanks to a comically narrow reading of the markets by U.S. District Court Judge Richard Leon. At no point in his 172-page ruling (which approved the deal without a single condition) did Leon show the faintest understanding that AT&T intends to use vertical integration synergistically with the death of net neutrality to dominate smaller competitors. In fact, net neutrality was never even mentioned at the multi-week trial.
The trial did a wonderful job showing how modern antitrust law does a dismal job policing companies that dominate both the conduit to the home (wireless, wired connection) and the content running over it. And shortly after Leon signed off on the deal, AT&T got right work... being AT&T.
The company had made repeated promises before, during and after the trial that the merger would only result in price reductions and other wonderful things for consumers. But with the ink barely dry on the deal, AT&T quickly began raising rates on its streaming video services, eliminating promo offers providing free HBO to its wireless customers, jacking up the price of the company's unlimited data wireless plans, and imposing bogus new fees on those same subscribers. Most of these moves were expected as AT&T tries to recoup some of the monumental debt incurred by its endless quest to grow ever larger.
Initially, the DOJ stated it wouldn't appeal its court loss, even though Leon's myopic ruling opened the door to the idea. But the DOJ clearly sees something in AT&T's recent moves that gives it additional ammunition for another shot at the merger, so it's appealing the judge's ruling to the United States Court of Appeals for the District of Columbia Circuit according to a DOJ filing (pdf).
AT&T, for its part, doesn't seem particularly worried and believes the merger is a done deal:
"We think the likelihood of this thing being reversed or overturned is really remote,” Mr. Stephenson told CNBC Friday in an interview at Allen & Co.’s annual Sun Valley, Idaho, media conference. “The merger is closed. We own Time Warner."
That may or may not be true. Antitrust law has been so weakened over decades that the DOJ spent most of the first trial narrowly confined to strict corridors of economic theory as it tried to prove the obvious: AT&T's ownership of Time Warner will result in AT&T jacking up licensing costs for must-have content like CNN and HBO for its video (traditional cable and streaming) competitors. Patchy antitrust laws ill-suited for the mega-Comcast era aren't magically being fixed before the next legal battle, meaning it's pretty likely the next round won't go much better for the DOJ than the first.
That said, AT&T's price hikes do provide some additional ammunition. The DOJ might also want to actually mention net neutrality this go round. The agency likely avoided the concept the first time around because it didn't want to emphasize that while it was suing AT&T to "protect consumers" (though Trump's disdain for CNN and Rupert Murdoch's opposition to the deal for competitive reasons are just as likely motivators), another arm of the government (Ajit Pai's FCC) was busy eroding net neutrality rules making it easier than ever for AT&T to behave anti-competitively.
If you've watched AT&T do business for any more than five seconds, it's obvious the death of net neutrality is the lynch pin for AT&T's anti-competitive ambitions moving forward. While certainly a bit off the traditional antitrust track, at least mentioning that fact at some point during the trial might just be a good idea for the DOJ during the next round.
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Filed Under: competition, doj, fcc, merger
Companies: at&t, time warner
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Where's the stay?
I can think of two possibilities. The DOJ is inept. Or they are playing a long game, and expect to lose, which makes the whole appeal merely an affirmation of their 'seriousness' in their attempt at preventing the merger.
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Perjury
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Re: Perjury
They probably couched it in language like "there are no plans at present to raise prices", and made damn sure there was no paper trail that could prove any actual plans to raise prices. So they can say that there weren't any plans to raise prices at the time, and it's just a crazy coincidence that they made such plans immediately after the merger was finalized.
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Re: Perjury
If AT&T was at all worried about how this looks, then they would've waited six or eight months before they raised prices.
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Appeals
Can they do that? "This go round" is an appeal, and courts generally frown on people adding new arguments during an appeal. Appeals normally focus on mistakes made by the court, not stuff the prosecution neglected to mention.
A post-merger change in behavior could certainly result in antitrust charges, but that would be a new trial.
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Re: Appeals
My bet is that the appeals court won't let DoJ point out that AT&T actually raised prices. Instead, the appeals court will insist that the proper time to bring that up was at trial, and since DoJ didn't prove it then and there, everything actually shows the merger will lead to lower prices.
Many, many people will not understand the appeals court's reasoning. Others will become frustrated trying to explain it to them in commentary. But the many, many people still, obstinately, won't understand.
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How did this happen?!!?
We've only watched it happen every single time we allowed this to happen in the past.
It just so happens we are shocked just shocked.
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Re: Where's the stay?
The current administration seems to have one target only: Search and destroy oversight and regulation. DOJ, CFPB, FCC and to a lesser extend FBI, CIA and others are being gutted and if Trump could: Removed.
Many parts of the administration and "the party" is fighting DOJ since they wont swear off evidence-based conduct for alllegience to MAGA. Having DOJ suicide on failing anti-trust is merely causing dry tears and a good punching bag for the religiously awakened.
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As the trial judge noted in his decision, a stay would cause damage even though AT&T won, when appeal courts have no problem unwinding a merger later on if the district court ruling is reversed.
This merger was approved without conditions. Most of the legal analysis I hear think that this appeal can at best produce some modest conditions, and not a reversal of the merger itself.
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