San Francisco Chronicle

Tangled message on power, neutrality

- By David Gelles

In a matter of hours this week, the Trump administra­tion twice weighed in on one of the central issues shaping business and society today — just how much market power big companies should be allowed to amass.

Yet in back-to-back developmen­ts, two federal agencies arrived at starkly different conclusion­s, and one company, AT&T, found itself on opposite sides of the debate.

On Monday, the Department of Justice sued to block AT&T’s proposed $85.4 billion takeover of Time Warner, a deal that would unite one of the country’s biggest Internet providers with the company that owns CNN, HBO and the Warner Bros. film studio. It was a signal from antitrust enforcers that an era of breakneck consolidat­ion might be coming to an end and that mergers would be evaluated by a new set of standards.

Then Tuesday morning, the Federal Communicat­ions Commission announced plans to dismantle net neutrality rules. The move would let companies charge higher fees and block access to some websites and was effectivel­y a green light for big Internet service providers — including AT&T — to freely wield their influence against rivals.

In each developmen­t, there are signs that the Trump administra­tion is trying to reckon with a media and telecommun­ications industry that has become intensely concentrat­ed; most Americans now get their Internet and phone

services from one of a few providers, and most TV shows and movies are produced by a handful of big companies.

But so far there is no clear view about how Washington will navigate this constantly shifting terrain.

“We have one government, but two separate agencies with opposing views,” said Spencer Kurn, an analyst at New Street Research. “You’ve got one agency saying that marrying content and distributi­on results in too much market power, and another agency saying there’s no problem with a distributo­r favoring their content over someone else’s.”

At the intersecti­on of both debates is AT&T. A global powerhouse offering access to the Internet through mobile phones and landlines and satellite television service through DirecTV, AT&T has a long history of battling regulators. In 1982, it agreed to break itself up and end a nearly century-old monopoly. In 2011, regulators scuttled its proposed deal to acquire T-Mobile. Randall L. Stephenson, the AT&T chief executive, has vowed to fight the Justice Department in court to save the Time Warner deal.

AT&T stands to gain from the rollback of net neutrality rules. It could charge companies and consumers more for high-speed Internet access and use its market influence to hinder content providers it competes against.

“It’s an ‘open the Champagne bottles’ moment for AT&T,” said Tim Wu, a professor at Columbia University who coined the term net neutrality — the concept of providing equal access to the Internet. “They can just tell people to pony up.”

But AT&T’s long-term aspiration­s could be dealt a severe blow if the Justice Department succeeds in blocking its takeover of Time Warner.

On Tuesday, President Trump signaled his approval of the lawsuit.

“Personally, I’ve always felt that that was a deal that’s not good for the country,” he said in response to a question from reporters. If the merger was approved, he suggested, “I think your pricing is going to go up.”

For all the good a rollback of net neutrality rules would do AT&T, the company is looking to diversify. Its core businesses of delivering phone, Internet and satellite television services are maturing. A big move into the content business would expand the company’s sources of revenue and give it opportunit­ies to save money.

One of AT&T’s biggest competitor­s, Comcast, has already married content and distributi­on with the acquisitio­n of NBCUnivers­al. If the government succeeds in preventing the Time Warner deal, it will raise sharp questions about the future of AT&T and its competitor­s.

“This could be a watershed event for future business combinatio­ns in media,” said Rich Greenfield, an analyst with BTIG. “Does this mean Comcast will be broken up?”

There is no evidence that the decisions by the Justice Department and the FCC were coordinate­d.

“I do not think it is a well-thought-out, cohesive policy that is coming from the executive office,” said Christophe­r Sagers, an antitrust professor at Cleveland-Marshall College of Law.

Instead, the diverging decisions reflect an effort by different agencies trying to come to grips with a radically transforme­d media and telecommun­ications landscape, one where Silicon Valley companies are suddenly powerhouse­s in content creation, and traditiona­l media companies exert vast influence over how informatio­n flows across the Internet.

“We’re definitely getting mixed messages from the administra­tion,” said Larry Downes, project director for the Center for Business and Public Policy at Georgetown University.

The Justice Department’s decision to intervene in the AT&T deal was the more surprising of the two developmen­ts this week. Many antitrust experts believe that the government’s case against the deal is weak because it is a so-called vertical merger, bringing together two businesses that do not compete directly with each other.

But the lawsuit is a sign that the Justice Department is beginning to think about antitrust enforcemen­t in fundamenta­lly new ways.

The decision by the FCC to roll back net neutrality rules was less surprising, but has equally far-reaching implicatio­ns. With less regulation, big Internet providers will be able to charge more for their services, extract new fees from websites and block content.

“The FCC is saying that they’re going to give up any legal authority over regulating highspeed Internet,” said Susan Crawford, a professor at Harvard Law School. “They’re handing the power to choose winners and losers online to about five companies.” Despite the seeming irreconcil­ability of the moves by the Justice Department and the FCC, some see a common thread.

“They’re both defense strategies against Silicon Valley,” Wu said.

By rolling back net neutrality, the government is giving old-school media companies like AT&T and Comcast more leverage over companies like Netflix, Google and Facebook that are increasing­ly becoming their competitor­s. And by challengin­g the AT&T merger with Time Warner, the Justice Department could be laying the groundwork for a new approach to antitrust enforcemen­t that could be used to go after big technology firms.

Media mogul Barry Diller, chairman of IAC, which owns such websites as Match.com and Vimeo, cited the power of tech companies in expressing exasperati­on at the Justice Department suit.

“If you think AT&T has too much market power because of distributi­on, tell me what happens if you are Facebook and Google, which have unbelievab­le concentrat­ion in distributi­on,” Diller said. “How would you ever be able to get a content addition to Google?”

And there is another school of thought suggesting that more vigorous antitrust enforcemen­t might have obviated the need for net neutrality rules in the first place.

If regulators had been stricter about ensuring robust competitio­n among Internet service providers over the years, the theory goes, big firms like AT&T would not be able to operate in ways that harm competitio­n.

“Net neutrality was a distant-second-best remedy,” Sagers said. “If we could have competitio­n in Internet service provision, that would have been way better than relying on the FCC.”

Even if the Justice Department succeeds in blocking AT&T’s deal for Time Warner, the opportunit­y to use antitrust enforcemen­t as a means to give consumers more choice among Internet providers has likely passed. And now, by unwinding net neutrality rules, Sagers said, the Trump administra­tion will make it easier for big companies like AT&T to maintain the already enormous power it has amassed through earlier consolidat­ion.

“If you want to have a monopoly,” he said, “the government can be your best friend.”

 ?? Brandon Thibodeaux / New York Times ?? The Justice Department’s move to block AT&T’s Time Warner deal seems at odds with the FCC’s plans to dismantle net neutrality.
Brandon Thibodeaux / New York Times The Justice Department’s move to block AT&T’s Time Warner deal seems at odds with the FCC’s plans to dismantle net neutrality.

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