Although the outcome of the court case in question could be appealed by whichever side loses, the process of getting to AT&T-Time Warner merger ruling due on (or around) Tuesday, June 12, has been even more grueling than usual for an antitrust case. Neither party may have much fight left in them.
That fatigue is ultimately a reflection of this case’s nuances. It’s a vertical integration, but with significant horizontal implications; AT&T could make it difficult for other media distributors to purchase Time Warner-made content. These same nuances have also made it a tricky case to handicap, with both parties seemingly poised to prevail at different times during the one-judge, no-jury trial.
With the matter wrapping up, the consensus is that AT&T-Time Warner merger will be allowed to proceed, assuming the Department of Justice (DOJ) doesn’t bother with an appeal.
From Red-Hot to Lukewarm
Almost two years. That’s how long this thing’s been going on. The merger was first announced in October 2016. In that regard, AT&T shareholders may be ready to cheer the fact that it’s over, regardless of the ruling.
It may not just be the agonizing process leading shareholders to just want to put it behind them, though.
While the premise made sense in late 2016, much has changed since then. Netflix, Inc. (NASDAQ:NFLX) has further defined what it is, and what it isn’t. Of those, Netflix has become a studio in its own right. Walt Disney Co (NYSE:DIS) is widening its delivery options for its own content, developing streaming services to compete with other studios and cable companies and streaming venues.
In other words, there’s not necessarily a key strategic advantage in being the messenger and the message-maker.
That’s largely why Jefferies downgraded T stock on Thursday, without even waiting to hear the AT&T-Time Warner merger verdict. The analysts’ note explained “The pay-TV/telecom industries are at a crossroads, with convergence and consumer behaviors further blurring the lines between the incumbents and large tech companies. While we think the incumbents are well positioned, the result will be slower growth and limited margin expansion, making it difficult for the sector to outperform.”
The last bastion of hope for the pairing – the sustained abolition of net neutrality that would let AT&T favor Time-Warner content for its broadband customers — was also dealt a potential blow, with Congress moving to ensure internet service providers treat all digital content equally. That decision, now in the House of Representatives’ hands, could be coming about the same time Judge Richard Leon dishes out his AT&T/Time-Warner.
AT&T Seems to Have a Small Edge
Still, though an AT&T-Time Warner merger may not be the screaming game-changer it was being billed as a year and a half ago, there’s no denying there’s at least some strategic upside to it. That prompts the next obvious question: Who’s going to come out on top?
It’s been a back-and-forth war. The Department of Justice took an early lead when its star witness, economist Carl Shapiro, made a seemingly cogent case that consumers would ultimately pay more, not less, should the deal be allowed to take shape, AT&T’s attorneys picked that thesis apart pretty quickly. Leon’s comment to the plaintiff’s side “I look forward to re-reading your testimony. I’m not sure I got it,” following Shapiro’s part of the testimony may indirectly point to the DOJ’s flawed case.
Experts believe that the trial’s tide has favored AT&T ever since, albeit only slightly. Seattle School of Law antitrust professor John Kirkwood commented “His questioning was much more hostile to the government. That doesn’t prove anything, but it’s often a telling sign. I suppose if you made me predict I’d say the government would probably lose.” MoffettNathanson’s Craig Moffett noted “most observers seem to give AT&T 75%-or-better odds of winning in court,” though Moffett himself says it’s a coin-toss.
At the other end of the spectrum, despite the tone of the case until arguments ended last month, are expert observers like professor Herbert Hovenkamp… the so-called “dean of American antitrust law” at Wharton. He commented after the final arguments were made “To me, it is a close call, but I think the government has met its burden.”
In other words, this could go either way, and nobody really knows how Leon is going to rule. Largely overlooked is the reality that he could blend a loss and a victory together — for both sides — by allowing the merger to happen, but with significant restrictions.
Whatever’s in the cards, AT&T appears to have a slight edge going into the proverbial D-Day.
Last Word on AT&T-Time Warner Merger
And yet, even with a decision expected to be unveiled on Tuesday, the saga might become a sequel via an appeal.
Both parties have the right to do so, but successful antitrust-related appeals are rare … unless you’re the federal government.
In each of the past seven of its appeals to the Supreme Court to prevent or at least postpone a merger, the government found some level of success. Granted, six of those were brought forth by the FTC, which has a lower bar to clear than the DOJ does. All the same, the past rulings may reflect how the SCOTUS tends to think, and act, when the outcome of a proposed merger isn’t entirely clear.
There’s also a working theory that AT&T might not want to sink any more money into the already expensive effort unless it knows it faces good odds with an appeal. That mindset might be switched up this time around though, with AT&T thinking they’ve already spent so much time and money on the matter that spending a little more on an appeal of the AT&T-Time Warner merger effort might be a risk worth taking.
It’s not certain Time Warner is on board with that line of thinking, though. In that the merger’s deadline is June 21 — well before any appeal case could be heard — come June 22, Time Warner could explore other options that reflect how the media industry has dramatically matured since October of 2016.
It’s a story that not even John Grisham could have conjured up. Buckle up for the (maybe) riveting final chapter.
As of this writing, James Brumley did not hold a position in any of the aforementioned securities. You can follow him on Twitter, at @jbrumley.