Future of AT&T-Time Warner Deal Is in Judge’s Hands
The six-week courtroom battle, featuring top executives and glimpses of trade secrets, has been one of the most closely watched antitrust cases in years. It has the potential to reshape the fast-changing telecom and entertainment landscape, which is facing new competition from tech companies.
Credit Christian Hansen for The New York Times
The judge’s opinion could also help set the course for antitrust regulation in the years ahead. A victory for the companies could embolden executives to pursue new deals. A government win could slow future deal-making. On Sunday, T-Mobile and Sprint announced a merger to better compete against AT&T, in a deal that is also expected to face close antitrust scrutiny.
The case has centered on the question of harm to consumers and whether the merger would lead to price increases. The Justice Department presented several theories for why prices could go up hundreds of millions of dollars a year over all for cable subscribers. The core idea is that AT&T could threaten to withhold Time Warner content, like N.B.A. games and CNN, to extract more money from rival cable and satellite operators that wanted to run that “must-have” programming.
The call for selling off business lines showed how little the two sides have changed their strategy throughout the trial. The Justice Department, which had made the same demand before it sued in November, says only the divestitures would solve antitrust concerns because restrictions on business practices are rarely well enforced.
The government called witnesses from Dish’s Sling TV and from Cox, Charter and RCN, which provide cable and broadband service, to discuss their fears that AT&T, one of the nation’s largest satellite television providers, would use Time Warner’s programming as its weapon to hurt them. The Justice Department also relied heavily on an economic analysis by Carl Shapiro, a professor at the University of California, Berkeley, that estimated monthly cable bills could go up at least 27 cents.
“These witnesses came across the country to share their concerns,” said Craig Conrath, the Justice Department’s lead lawyer. He said the potential antitrust violations from the deal were not “theoretical.”
“There are hundreds of millions of dollars in harms to consumers,” Mr. Conrath said.
AT&T and Time Warner fiercely attacked those economic arguments during the trial and in the closing argument on Monday. Rivals are always motivated to argue against the activities of competitors, Mr. Petrocelli said.
The companies assailed the economic analysis of Mr. Shapiro, saying the data sets used were not complete and cherry-picked points.
“It is the centerpiece of this case,” Mr. Petrocelli said. But he said Mr. Shapiro’s arguments were “a complete failure of proof.”
The companies’ ability to raise doubts about the Justice Department’s case put the government in a challenging position, analysts said.
“The burden of proof is on the government, and the consensus view is that it would be an uphill battle for the government,” said Paul Glenchur, a senior telecommunications and cable analyst for Hedgeye Potomac Research.
For a merger focused on the future of technology, the trial felt stuck in time. A clock on the wall was frozen at 5:05. Cellphones and other device were forced off. Lawyers relied on boxes of files and binders wheeled in on library carts. Judge Leon, with bow ties and cuff links, was a stickler for order and schedules. He took careful notes by pencil.
Political questions have hovered over the trial, but have not been allowed in the courtroom. President Trump, a vocal critic of Time Warner’s CNN, said during the election campaign that the merger should be blocked. Makan Delrahim, the Justice Department’s head of antitrust, told the court in filings that the White House had not influenced his decision. Judge Leon, however, said he wanted to keep the trial focused on the merits of the deal.
The outcome of the trial may not be a simple yes or no on the merger. Judge Leon may push the parties to work out a settlement that would let the merger proceed with the promise of assigning a third-party arbitrator to resolve business disputes over Time Warner content. He could also, as the government suggested, demand that some parts of the merged company be sold before the deal is approved.
Whichever side loses is expected to appeal.