AT&T-DirecTV Merger Faces Real Scrutiny After Failed Comcast-TWC Deal

A massive corporate merger proposal is working its way through the regulatory review process. If approved, it could have profound implications for the future of television.

No, we’re not talking about Comcast’s proposed $45 billion takeover of Time Warner Cable. That proposal was aborted Friday when resistance from antitrust regulators prompted the Philadelphia cable giant to walk away from the deal.

We’re talking instead about AT&T’s proposed $48.5 billion acquisition of DirecTV, a mega merger that has gained far less attention, criticism and media scrutiny.

Until now.

As the Comcast-TWC deal lay in ruins, new questions arise as to whether the AT&T and DirecTV deal, announced in May 2014, will face the same regulatory headwinds. The AT&T-DirecTV deal was proposed in part as a strategic response to the Comcast-TWC plan, which would have created an unmatched cable-and-broadband behemoth.

But while the two mergers initially seemed set on parallel courses, analysts say they differ in some very key ways -- most notably in their potential effect on the high-speed Internet market.

“These very different deals,” said Tuna Amobi, an equity analyst at S&P Capital IQ. “On the broadband side, AT&T and DirecTV don’t face the same concerns, obviously with DirecTV not having a broadband play.”

As a combined entity, Comcast and TWC would have controlled a staggering 57 percent of U.S. broadband market, and that fact alone is likely a big part of why regulators were leaning against the deal. But satellite-TV provider DirecTV does not offer broadband, which means AT&T’s estimated 17 percent of the national broadband market would not change if it acquired DirecTV.

The Future Is Broadband

The glut of online TV services that has launched in the last few months has made it obvious that broadband is the future of television, so any deal that is ostensibly about television is about broadband. And the failed Comcast-TWC merger has sent a message that regulators are not ready to give a single company too much of a gatekeeper role. “I don’t think AT&T-DirecTV will face the same challenges there,” Amobi added.

Where the two deals are similar is in pay television. A combined Comcast-TWC would have controlled almost one-third of the pay-TV market. AT&T, which controls only about 5 percent of the pay-TV market now, would gain control of 25 percent of the market after the merger. But Amobi said that could actually play in its favor, in part because the two companies combined will have a better chance at competing with Comcast.

“Even without Time Warner, Comcast is formidable,” Amobi said. “One could make the argument that AT&T-DirecTV could actually enhance competition -- that having a much more significant competitor to Comcast is something that would be beneficial.”

Mergers Are 'Fact-Specific'

Even within the telecom industry, each merger is different, and each comes with its potential regulatory hurdles. The U.S. Department of Justice looks at how a proposed merger might affect competition, while the Federal Communications Commission aims to determine if a proposed merger is in the public interest. Staffers at both agencies were said to have been concerned with Comcast-TWC’s potential control over the broadband Internet market. They were also not particularly keen on AT&T’s 2011 takeover bid for T-Mobile, another proposed merger that failed.

But neither one of those failures means history will repeat itself. “Mergers come in and they’re fact-specific, and they get evaluated as they come,” said Allen Grunes, an antitrust lawyer who represented parties opposed to the Comcast-TWC merger plan and who previously worked at the Justice Department.

This is not to say that the AT&T-DirecTV merger will not gain increased attention now that the Comcast-TWC deal is dead. As Reuters reported last month, intense media focus on Comcast-TWC had allowed AT&T-DirecTV to fly largely under the radar. The latter inspired just 14,000 public comments to the FCC, compared to 88,000 for the Comcast deal. But many of the same consumer groups and labor unions that had focused their ire on stopping the Comcast deal are opposed to consolidation in general.

“We do indeed oppose the AT&T-DirecTV merger as well,” said John Bergmayer, a senior staff attorney for Public Knowledge in Washington, one of the most vocal groups opposed to the Comcast deal.

On Friday, Public Knowledge filed an ex parte [one party] motion asserting that the AT&T-DirecTV merger could cause public-interest harm and result in a loss of pay-TV competition in some markets. Bergmayer added in an email: “We’ve said we could be open to conditions on that deal, but we haven’t seen specific conditions yet that would remedy the harms in that deal we’d identify.”

Let the scrutiny begin.