WASHINGTON – Within hours of AT&T’s announcement that it had agreed to buy Time Warner for $85.4 billion, U.S. Sen. Al Franken of Minnesota put out a statement saying he was “skeptical of huge media mergers.”
The day after the merger was reported, Sen. Amy Klobuchar of Minnesota announced a hearing on the deal by the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights.
Minnesota’s two most powerful federal politicians, both Democrats, are among those poised to lead the charge against the deal. Both are pursuing strategies that maximize their leverage. Courts of law are specific about what constitutes an improper marriage of private companies. But as Congress has proved over and over, jurors in the court of public opinion can sometimes derail consolidation as surely as any judge.
The “rule of reason” and “complex economic analysis” are supposed to apply, said Sharon Sandeen, who teaches antitrust law at Mitchell Hamline School of Law in St. Paul. Still, she noted, “statements and hearings by politicians might sway the public view” in ways that “have an effect in the real world.”
At this point, said Chris Scheuer, a senior equity analyst at Minneapolis-based Thrivent Financial, the market is putting about a 50-50 chance of approval on the deal.
In an Oct. 22 news release announcing the Time Warner purchase, AT&T CEO Randall Stephenson called it “a perfect match of two companies with complementary strengths who can bring a fresh approach to how the media and communications industry works for customers, content creators, distributors and advertisers.”
AT&T said customers would benefit from a “stronger competitive alternative to cable and other video providers” and “better value, more choices and enhanced customer experience for over-the-top and mobile viewing.”
Skeptics in Congress will test those contentions.
University of Minnesota law Prof. Richard Painter said the power of Congress to subpoena corporate executives, “haul them in front of a committee and put them under oath” provides plenty of leverage, even though the approval of mergers and acquisitions rests with executive branch agencies like the Justice Department (DOJ) and in cases of media consolidation, with the Federal Communications Commission (FCC).
Klobuchar, ranking member of the antitrust subcommittee, said information garnered from the AT&T-Time Warner hearing that she and subcommittee chairman Mike Lee, R-Utah, are scheduled to hold Dec. 7 will go directly to the antitrust division of the Justice Department, as well as the communications commission. The chief executives from both companies are scheduled to appear. Klobuchar also said she and Lee were careful to put up a united, bipartisan front in calling for the hearing because “that gives us a lot more power.”
Letting people watch executives testify makes a difference, as shown in recent hearings just weeks ahead of the exit under fire of Wells Fargo CEO John Stumpf in a fake account scandal, as well as the $465 million settlement Mylan Pharmaceuticals agreed to shortly after CEO Heather Bresch testified about pricing of the EpiPen epinephrine injector.
In corporate mergers and acquisitions, Klobuchar said, “CEOs don’t usually go on TV and talk. … The media and the public aren’t able to be inside the Justice Department conference room when they’re having meetings. Sometimes [a] hearing is the one and only chance to get to the bottom of the deal and have consumer people testify. So it is a big deal. The public will pick up on things that are said and that adds to the public interest.”
Klobuchar called the timing of the AT&T-Time Warner announcement “unique,” coming as it did in the dying days of a contentious presidential election campaign. Republican candidate Donald Trump has already tweeted his opposition. Democratic nominee Hillary Clinton has said it “raises questions and concerns.”
Franken, who like Klobuchar sits on the Judiciary Committee, prevailed in an extended fight against Comcast’s attempt to buy Time Warner Cable that began in February 2014 and ended in April 2015. He said he did it by “continually raising issues, including writing letters to DOJ and the FCC and making arguments, then working with a whole bunch of other advocates and advocate groups.”
Those efforts yielded a million letters of concern to regulators, offsetting corporate lobbying. The Justice Department eventually said it planned an antitrust lawsuit. At that point, Comcast and Time Warner Cable dropped their consolidation proposal.
The issue that undercut the Comcast-Time Warner Cable deal exists in the AT&T-Time Warner deal, Franken said. “It’s a company that delivers content trying to buy a company that provides content,” he explained.
Time Warner owns the HBO entertainment network and cable news powerhouse CNN. AT&T offers cellphones, internet service and satellite television.
The University of Minnesota’s Painter believes the internet service component of AT&T could offer a potential element in consideration of the consolidation. “Concentration of content on the internet is serious because that’s where the younger generation gets most of its information,” he said.
Some analysts believe that the government’s approval of the 2011 purchase of NBC Universal by Comcast paved the way for approval of the AT&T-Time Warner deal. Comcast’s purchase came with conditions to preserve competition, said Thrivent analyst Scheuer. Comcast had to offer NBC Universal programming to other distributors at terms similar to what it offered its customers.
“It’s safe to assume the AT&T deal would have to have the same restrictions,” Scheuer said.
But Klobuchar and Franken both said Comcast has not met some of the conditions of the NBC Universal purchase. That will weigh heavily as they look at the AT&T-Time Warner consolidation, which could create the nation’s largest entertainment company.
“I think the bigness [of the deal] works against it rather than working for it,” Franken said, “because that’s what the FCC and DOJ are supposed to weigh.”
Benefits to consumers will also play a crucial role. The Comcast-NBC Universal deal has not led to lower prices, according to some analysts.
That could be where Congress and the court of public opinion take a stand in the AT&T-Time Warner case. And it could resonate.
By law, this call may be up to the executive branch, but in 2005, serving in the George W. Bush administration, Painter watched what happened as Cnooc, an energy company partly owned by the Chinese government, tried to buy Unocal, an American company.
The administration was noncommittal on the purchase, Painter said. On Capitol Hill, however, “they went ballistic” and “the deal was derailed in Congress.”