About the author: Thomas W. Hazlett is H.H. Macaulay endowed professor of economics at Clemson University, and previously served as chief economist of the Federal Communications Commission. His latest book isThe Political Spectrum: The Tumultuous Liberation of Wireless Technologies, from Herbert Hoover to the Smartphone.
Big Tech is in the antitrust hot seat. But before the Department of Justice tries to break up companies likeGoogleorApple,it should recall the history, and eventual outcome, of theAT&T-Time Warner merger.
The DOJ expended extensive time and resources to stop AT&T’s acquisition of Time Warner, marking the department’s first challenge to a major vertical merger in over 40 years. The government was unsuccessful despite its best efforts, which included an appeal to the D.C. Circuit, and time reveals that its concerns were evidently misplaced all along. The merger did not result in higher prices, program blackouts, or even any appreciable advantage for the companies.
In October 2016 AT&Tannouncedits plan to buy Time Warner. Donald Trump’s presidential campaign trashed the merger in a statement: “AT&T … is now trying to buy Time Warner and thus the wildly anti-Trump CNN. Donald Trump would never approve such a deal.” With Trump in office, the DOJ moved to block it.
In 2017, the DOJ went to court tocomplainthat the merger would “substantially lessen competition in video” by allowing AT&T to “use Time Warner’s ‘must have’” networks like CNN, TNT, TBS, and HBO to raise fees charged to rival cable TV distributors like Comcast or DISH. AT&T, which had acquired national satellite operator DirecTV, could threaten “blackouts” depriving rival distributors of key programs—their subscribers would then quit and flock to DirecTV (AT&T) so as to keep watching CNN or the NBA Playoffs on TNT. Not only would major TV and cable systems be hurt, but emerging online streaming services would be crushed.
The government’s case focused on “vertical leveraging,” where a company uses two complementary products to make it more difficult for rivals to compete in the individual markets. Here, AT&T was combining video content creation with video program distribution; the allegation was that competitors in either segment might be hurt. Yet there are clear efficiencies to be had, as widely found in studies of vertically integrated firms, with joint operations boosting consumer happiness. Buyers at Costco eagerly snap up Costco-supplied Kirkland products—which the retailer stocks in place of those of some independent producers—if they improve price or quality. So facts, not just a story, are needed. District Court Judge Richard J. Leonfoundthat the DOJ case “falls far short of establishing the validity of its… theory.”
Aside from the political overtones of the case, there was good historical reason to doubt the official complaint. A cable TV programmer combined with (or split from) a video distributor several times in recent years. Vertical integration did not cause higher prices, as shown by econometric analysis. Nor did vertical integration lead to “blackouts,” as the DOJ conceded. A three-judge panel of the D.C. Circuit confirmed Judge Leon’s opinion, finding that “the industry had become dynamic in recent years with the emergence, for example, of Netflix and Hulu.”
Owning DirecTV and Time Warner together turned out to be not much advantage, let alone a monopoly. Despite a huge boost in pandemic demand for video content, rivals soon dined on AT&T-Time Warner’s lunch. When AT&T bought DirecTV in 2015, it paid $67 billion. In February 2021, with DirecTV’s satellite subscriber base collapsing, the spun-off operation wasvaluedat $16.3 billion.
And AT&Tthen unloaded the video assets of Time Warner. A new enterprise—Warner Bros. Discovery—is being spun off and merged with Discovery (Discovery Channel, Animal Planet, TLC, HGTV, the Food Networkand more). The content-only firm voluntarily severs the link the DOJ critiqued as easy monopoly money. With the allegations of anticompetitive bundling, it has been cast off as not worth the trouble.AT&T shareholders receive $43 billion, less than half the $100 billion AT&T expended (in debt and equity) for Time Warner three years ago. The government’s scenario of anti-competitive vertical integration proved a fantasy.
AT&T’s maneuvers deserve whatever scorn billions in shareholder losses can buy. A cynic might offer that antitrust laws be beefed up to protect against such corporate errors, ignoring that economic penalties—more reliable and harsher than whatever antitrust enforcers might deal—are visibly in place. But little note has been made of the ironic political saga. Policymakers are moving full throttle to enact statutes to beef up antitrust prosecution in tech for exactly what AT&T so spectacularly failed to do in video. Rep. Pramila Jayapal (D-Wash.) and Rep. Lance Gooden (R-Texas) introduced the “Ending Monopoly Platforms Act” that would restrict vertical mergers in online services, for example. At least five other bills for new antitrust rules have been introduced.
Not only can such policies be expensive legal diversions, they can block the innovations igniting exciting new choices for customers. Netflix has integrated from streaming into movie production, after launching Roku. Hulu was created by News Corp. (Fox) and NBC-Universal (Comcast). Amazon Prime Video, Sling, YouTube TV, Apple TV, Disney Plus, HBO Max and Paramount Plus—each has extended a large media or e-commerce platform. Each evolved from a quest for better products. Treating entrepreneurship as suspect puts the screws to just the disruptions now roiling online entertainment markets. AT&T learned the hard way that owning complementary products is no guarantee of success.