Legacy Antitrust Models Have Legs in the Internet Ecosystem: AT&T’s Acquisition of Time Warner

            A day after the FCC’s termination of network neutrality rules, District Court Judge Richard J. Leon will announce the verdict in the Justice Department’s suit against AT&T’s acquisition of Time Warner.  See https://www.nytimes.com/2018/06/10/technology/att-time-warner-ruling.html.  I’m betting the Judge will apply “old school” competition policy analysis finding no significant harm in this $85 billion deal that he will frame as vertical integration among non-competitors.  This ruling will lead to even more industry consolidation always framed as necessary to achieve scale, efficient operations and effective competition. We have not heard much about how these acquisitions offer consumer benefits, apparently because advocates do not have to bother telling us.

            Using the perspective of Chicago School economists, vertical mergers and acquisitions trigger limited concern about harm to competition and consumers while horizontal deals eliminate a competitor and further concentrate a market.  The prevailing wisdom assumes vertical integration can achieve benefits for the merging parties without offsetting harms to consumers largely because judges assume the two merger-aspiring ventures do not compete in the same market segments.

            In the Information, Communications and Entertainment (“ICE”) markets, deep-pocketed ventures operate throughout the marketplace with extensive vertical and horizontal integration.  It makes no sense to assume any ICE venture involving major incumbents, such as AT&T and Time Warner, operate in mutually exclusive market segments.  Decision makers do not seem willing, or able to understand that the Internet ecosystem seamlessly combines conduit and content and the ICE marketplace has fully integrated converging markets and technologies.

            Consider the conditionally approved acquisition of NBC-Universal by Comcast in 2011.  Even then, Comcast operated extensively in both content creation and content delivery.  It made no sense to consider the deal as solely occurring in a vertical “food chain” with Comcast a downstream distributor of content created mostly by unaffiliated ventures such as NBC.  In 2011, Comcast had 100% ownership interests in content networks including E!, Golf Channel Versus, G4, and dozens of regional sports networks, with minority interests in dozens of other networks.  See https://apps.fcc.gov/edocs_public/attachmatch/FCC-11-4A1.pdf at p. 177.

            It seems that competition policy models do not easily lose traction after having made the transition from academic theory, to preferred model by stakeholders, to conventional wisdom. For example, the Chicago School and now case precedent hold that no venture would ever deliberately underprice a good or service for any period of time beyond a blockbuster sale, e.g., the day after Thanksgiving (“Black Friday”).  The prevailing wisdom concludes that the underpricing company would have no good likelihood for recouping its losses, particularly in competitive markets that would foreclose gouging.  How then can judges and academics—including Chicago School economists—make sense of the ongoing business plan of Amazon and other Internet “unicorns” to forgo profits for years in the pursuit of market share and expanding “shelf-space” for products and services?

            Day by day consumer safeguards evaporate in the ICE marketplace.  I am not endorsing ex ante remedies that anticipate problems, but may well create their own through inflexibility.  But in this current environment, even ex post responses to legitimate complaints do not appear necessary. Who needs a largely impartial and qualified referee when economic doctrine assumes the market can solve or prevent all ills?