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Is an AT&T-Time Warner merger less likely under a Clinton presidency?

The traditional policy positions touted by Republicans and Democrats have been muddied during the current election. Does it matter?

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    The signage for an AT&T store as pictured in New York City in 2014. The company announced Saturday its plans to acquire Time Warner.
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It would be reasonable to expect American voters who worry about the impact big business mergers could have on the economy to gravitate toward the Democratic presidential nominee. Liberals have, after all, traditionally been seen as more aggressive than their conservative counterparts about enforcing antitrust law.

But the current race for the White House has not been one to follow tradition – a point that was reiterated once again late Saturday, when AT&T announced plans to buy Time Warner for $85.4 billion in cash and stock, the biggest deal of 2016 worldwide.

It was Republican nominee Donald Trump who came out strong against the merger, vowing Saturday to block it if elected, because "it's too much concentration of power in the hands of too few." His rival, Democratic nominee Hillary Clinton, has not commented specifically on the deal, though she has previously called for scrutiny of such large-scale mergers.

"For the most part, Republicans have been much more relaxed about mergers, and it’s typical for someone in the Democratic party to jump up very early and say, 'I’m opposed to this deal,'" Keith Hylton, a law professor at Boston University, tells The Christian Science Monitor. "So I would put this in the basket of yet another example of Trump breaking away from traditional Republican policies."

Christopher Yoo, a law professor at the University of Pennsylvania, says Mr. Trump's policy difference from his party can be attributed to his campaign being far less conservative than it is populist. Trump has built an enterprise around distrust of large institutions.

Even if elected, though, Trump might have a hard time making good on his promise, since presidents cannot prevent mergers unilaterally, says Dr. Yoo, who has an expertise in antitrust law. The administration would have to persuade a judge to halt the deal on legal grounds, not merely because a particular proposal is unpopular.

"Political rhetoric can cause a faint-hearted merger partner to get cold feet and to back out perhaps too easily, even though they might have ultimately prevailed," Yoo tells the Monitor.

But it would be unlikely for AT&T and Time Warner to be deterred from their plan by mere talk, Yoo adds: "These parties are sophisticated enough that I don't expect that to happen."

Without denouncing the deal outright, Democratic vice presidential candidate Tim Kaine said Sunday that there are concerns that should be thoroughly investigated. "Less concentration, I think, is generally helpful, especially in the media," he told NBC's Chuck Todd on "Meet the Press."

Regardless of who wins the election, the AT&T acquisition of Time Warner will easily rank among the most significant regulatory cases for the coming administration.

"By standard antitrust metrics, this deal should be OK in Washington," Paul Gallant, a policy analyst with Cowen & Company, told The New York Times. "But the Democratic Party is moving left, and if Clinton wins, this could become an early test for her 'tougher on business' rhetoric."

Julius Genachowski, a former Federal Communications Commission (FCC) chairman and partner at Carlyle Group, said the deal and others like it reflect a shifting media landscape, with consumers migrating away from wired in favor of wireless, taking video consumption trends with them. Although the deal is considered a form of "vertical" integration, since a content distributor is seeking to buy a content producer, there are some lingering concerns over horizontal competition.

John Bergmayer, senior counsel at the advocacy group Public Knowledge, said DirecTV, which will be owned by the newly merged company, could favor Time Warner content, while "crowding out or refusing to carry alternative and independent programming that viewers might prefer."

The case closely resembles a major, albeit smaller, merger in 2011, when Comcast was forced to give up day-to-day operations of video-streaming website Hulu in order to purchase NBC Universal. The company also had to make NBC programs available to other streaming services.

If voters elect Mrs. Clinton as the next US president, she will likely maintain the status quo with regard to the US Department of Justice (DOJ) approach to scrutinizing big business, Dr. Hylton tells the Monitor. And that should work just fine, he adds.

"I tend to think that markets are generally well-functioning in the US, and I do think that it would be very risky for a company like AT&T to show extreme favoritism toward its own content and discriminate against the content of other providers," Hylton says. "There would definitely be some market pushback against that kind of conduct."

If anything, the constraints imposed by the DOJ under a Clinton presidency would likely go beyond what's necessary, Hylton adds. Even so, the outcome of the election is unlikely to have much of an impact on this transaction.

"Whatever happens, this is not just going to be waived through with no scrutiny by the DOJ. Maybe the difference is just a matter of how intense the pressure would be," he says. "That would just be a matter of degree."

Material from Reuters was included in this report.

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