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U.S. District Court judges sure do love to write. Back in the Microsoft antitrust case, the late Judge Thomas Penfield Jackson issued a 207-page tome with findings of facts and another 46-page decision with his findings of law. On Tuesday, in the same courthouse, Judge Richard Leon rendered his verdict allowing AT&T to acquire Time Warner for $108 billion and remake the entertainment landscape. It only took 172 pages.
Reading through Leon’s unsearchable, uncut-and-pastable PDF file, the same annoying format judges have been using since before the Microsoft case, it’s about halfway through that you find the crux of the entire AT&T case. The Justice Department charged that AT&T was buying Time Warner so the carrier could charge its competitors more to carry CNN, HBO and NBA games on TNT, or maybe even cut them off altogether to make its own distribution services more popular. AT&T said just the opposite–it was buying all that content to lower its costs and to create more futuristic services, like a mobile app that mashes up news clips from CNN into a personalized video news feed for every viewer or a mini-package of cable channels watchable on a mobile phone for $15 a month.
In his notes for explaining the deal rationale to his board, AT&T CEO Randall Stephenson wrote, as Leon quotes on page 89 of his decision: “How can you advantage your own distribution (TV, BB, wireless) without harming TW position as a wide distributor of content to other SVOD, cable networks, and broadcast networks.” (For those unfamiliar with the acronyms, “BB” is broadband, aka home Internet service, and “SVOD” stands for “subscription video on demand,” the Internet-based video services like Google’s (GOOGL) YouTube TV and AT&T’s own DirecTV Now.)
Aside from proving Stephenson is a fan of the Oxford comma, the government argued that this quote showed AT&T did intend to use Time Warner’s content as a weapon. On the stand, Stephenson responded that the point was to shoot down any notion that AT&T could win by limiting the spread of Time Warner’s content, as the government was suggesting. Judge Leon agreed with Stephenson, as should anyone familiar with the basic economics of the content business in 2018.
Although it’s the biggest pay TV provider in the country, AT&T controls only a fraction of that shrinking market (thanks to cord cutting). Time Warner sells its content to the entire pay TV market, however, and makes its money by charging subscription fees and running ads. Messing with other TV distributors in the hopes of gaining more subscribers for AT&T would never make up for the lost subscription and ad dollars. AT&T’s incentive is to use HBO and CNN as carrots, not a stick, to attract more users on every platform. Big media’s reluctance to go along with AT&T’s new ideas to transform TV for the mobile era led the carrier to buy Time Warner (TWX) in the first place.
Now that AT&T (T) has won, expect change to come rapidly. Whether that will be enough to justify the $108 billion price tag is another question. My go-to analyst in this realm, Craig Moffett, just downgraded AT&T’s stock to “sell,” noting that the company’s projected $249 billion debt burden would fall just below Indonesia in the ranking of countries’ borrowings. Stephenson better get to work on that cool CNN mobile app pronto.
