We are living in a golden age of television. One TV writer recently wrote that for “the first time I’ve beg[un] to feel like there may, in fact, be too much good TV.”[1] From Game of Thrones to House of Cards to many other programs across networks and platforms, the quantity and quality of programming content is greater than we have ever known.

The creativity, however, is not limited to content creators.  Networks and distributors are also innovating to allow consumers new and unprecedented access to their content of choice. No longer are consumers limited to whatever bundle their local cable operator has negotiated.  Dish, Sony, and DirecTV all offer cable bundles allowing consumers to stream live television over the Internet. Netflix, Amazon, HBO, and CBS, among others, allow consumers to purchase programming directly. And more innovation is on the horizon, as many industry participants expect 5G wireless technology to provide more competition to broadband and landline cable, opening up even more possibilities to content creators and distributors.

This brings us to the reason we are here today: to discuss the proposed acquisition of Time Warner by AT&T, and ensuring this flourishing marketplace for creative content retains its vibrancy. AT&T is the second-largest wireless carrier in the United States and, through its DirecTV and U-verse subsidiaries, the largest U.S. cable or satellite provider. Time Warner is currently the world’s third-largest television network and filmed TV entertainment company. In late October, AT&T announced that it reached a deal to purchase Time Warner for $85 billion. The proposed transaction would combine AT&T’s millions of wireless and pay-television subscribers with Time Warner’s media lineup, which includes CNN, TNT, HBO, and Warner Brothers’ film and TV studio.

The companies claim that this acquisition will result in significant benefits for consumers. The combined company will provide a “stronger competitive alternative to cable and other video providers” and “better value, more choices, [and an] enhanced customer experience for over-the-top and mobile viewing.”[2] Additionally, by controlling the customer experience from content creation through distribution, the combined company says it will be able to innovate its advertising practices and introduce customized or targeted advertising, providing both an improved customer experience and a significant competitor to digital advertising giants Google and Facebook.

This transaction involves no horizontal overlaps. However, if this fact ended the antitrust analysis, then this would be a very Seinfeldian hearing about nothing. Although vertical deals typically raise fewer concerns than horizontal deals, such deals nevertheless may still tend to substantially lessen competition – the key analysis under the Clayton Act. The principal concern with vertical integration is foreclosure, or denying access of competing firms to suppliers and customers. A key question thus becomes what will the incentives and opportunities be for the combined firm post-transaction?

Many critics of the deal have posited all sorts of potential anticompetitive abuses that the combination of AT&T and Time Warner could create. AT&T could increase the price of or reduce access to Time Warner content to rival television distributors, thereby not only raising its rivals’ costs, but also making its DirecTV products appear more attractive to consumers. This risk is particularly acute in the nascent online video services market. Over the past few years, we’ve seen the development of products like Sling and PlayStation Vue, which allow customers to watch a live stream of cable channels via their Internet connection. And DirecTV has just begun its own similar service, called DirecTV Now. AT&T’s ownership of HBO, CNN, and the other must-have television products of Time Warner could give DirecTV Now a significant competitive advantage over its competitors. AT&T’s ownership of these channels could also potentially force DirecTV’s rivals into a Hobson’s choice of higher prices or limited Time Warner content, knowing that many customers would migrate to DirecTV if its rivals refuse to pay the higher Time Warner prices.

The potential anticompetitive favoritism that the combined firm could bestow on its own products is not limited to price or access, but extends to the quality of the offerings as well. And it is here that we get to the siren song of zero-rating, whereby a wireless or broadband distributor excludes particular data from counting towards its customers’ data caps. On its face, zero-rating appears to be consumer friendly – the content is free for subscribers, and helps them avoid paying overage fees on data caps. However, critics argue that zero-rating transforms Internet service providers or wireless carriers from “relatively neutral conduits into gatekeepers.”[3] The FCC recently expressed concern that AT&T’s zero-rating practices “may obstruct competition and harm consumers by constraining their ability to access existing and future mobile video services not affiliated with AT&T.”[4] Critics say that such concerns would only be exacerbated if AT&T were able to bring Time Warner content under its fold. However, as the FCC letter itself illustrates, in regards to this merger, we also have a regulatory framework that is designed to at least minimize, if not eliminate, many of the posited anticompetitive harms.

The issues raised by this deal are complicated and, like most antitrust analysis, very fact intensive. The focus of the analysis should remain on maximizing consumer welfare, and consumer welfare is maximized by protecting competition, not necessarily by protecting competitors. While the final determination regarding the competitive impact of the deal will be made by the Department of Justice, I believe we can make a valuable contribution to the conversation today by closely examining the questions raised by this unique transaction. I look forward to hearing from and engaging with our witnesses regarding these issues.

[1] Todd Leopold, The New, New TV Golden Age, CNN (May 6, 2013), http://www.cnn.com/2013/05/06/showbiz/golden-age-of-tv/.

[2] “AT&T to Acquire Time Warner,” AT&T Time Warner Analyst Call (Oct. 24, 2016), available at https://www.att.com/Investor/Earnings/3q16/10_24_16_analyst_call.pdf.

[3] Ernesto Falcon & Gennie Gebhart, “AT&T and Time Warner's Merger Raises Zero-Rating Concerns,” Electronic Frontier Foundation (Nov. 2, 2016), available at https://www.eff.org/deeplinks/2016/10/att-and-time-warners-merger-presents-significant-zero-rating-concerns.

[4] Letter from Jon Wilkins, Chief, FCC, to Robert W. Quinn, Jr., Senior Exec. Vice President, AT&T, at 2 (Nov. 9, 2016).