Uncle Sam Should Put Consumers First in Its AT&T Appeal

(Bloomberg Opinion) -- Antitrust officials from the U.S. Justice Department say the judge that ruled in favor of AT&T Inc.'s takeover of Time Warner ignored economic theory and common sense. But what the judge needed from them was something more concrete.

On Monday, the government's attorneys filed their opening brief to appeal U.S District Judge Richard Leon's June decision, a last-ditch attempt to stop—or, rather, now undo—the $102 billion transaction that has transformed AT&T into a powerful media conglomerate and inspired other corporate giants to test the bounds of antitrust law. While the odds of overturning the ruling are widely considered slim, it's interesting, if not disappointing, to see where Assistant Attorney General Makan Delrahim is taking the case.

Rather than present stronger evidence, his team is arguing that the court erroneously disregarded the economics around bargaining power and failed to fully grasp an expert witness's analytical model that was core to the case, thus arriving at the decision based on “faulty logic.” I'm no lawyer, but I'm not sure this is the most promising tack.

The common thread in the judge's opinion seemed to be that the government wasn't specific enough in tracing the harm the deal would cause consumers and instead relied too much on speculation from AT&T's competitors. Recall the cross-examination of the government's first witness, an executive from Cox Communications (an AT&T rival and Time Warner distributor) who was lambasted by AT&T's lawyer for not doing her “homework” before giving testimony. The judge zeroed in on that back-and-forth in his opinion.

It's a complicated case because it's unprecedented in many ways and does require some educated guessing about the future. At the onset of the trial, Leon said “I guess I have to get a crystal ball,” a comment that in and of itself didn't bode well for the government's attorneys. After all, the media landscape is undergoing rapid change; the pay-TV market went through its round of consolidation, leading the TV-network and film-studio operators to pursue their own megamergers, as they all grapple with cord-cutting and the rising popularity of low-margin streaming services. The truth is, nobody knows what the industry will look like in five or 10 years.

Even so, the power AT&T now wields by owning HBO, the Turner family of TV networks and the Warner Bros. film studio, alongside its own DirecTV satellite business, DirecTV Now streaming app and AT&T wireless service should be questioned. The antitrust officials make this important point in their opening brief that I would have liked to see them drive home better in the course of the trial:

The predictable result of the merger, therefore, is to impede the growth of innovative forms of distribution and slow the subscriber loss being experienced by DirecTV.

Any shareholder of AT&T can tell you that this is what they're counting on—a way to stem the subscriber losses at DirecTV and make DirecTV Now a more must-have and profitable service. It's why AT&T's shares would have sold off to no small degree had the judge ruled against the merger. AT&T can cast the deal as a way to better cater to consumers by bundling various services, but it's also a way to slow the tide of change and protect a dwindling business.

It may take time, but one way or another consumers will feel the ramifications of this megadeal and the others it sets in motion. The government let the consumer down, and its opening brief doesn't instill much faith that it can recover from the June defeat.

To contact the editor responsible for this story: Beth Williams at bewilliams@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Tara Lachapelle is a Bloomberg Opinion columnist covering deals, Berkshire Hathaway Inc., media and telecommunications. She previously wrote an M&A column for Bloomberg News.