AT&T Deal Puts Trump’s Antitrust Cop at Center of a Political Storm

AT&T Deal Puts Trump’s Antitrust Cop at Center of a Political Storm

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Randall L. Stephenson, AT&T’s chief executive, said on Wednesday that he had never offered to sell CNN. On Thursday, appearing at The New York Times’s DealBook conference, he said the company was ready to go to court against the Justice Department.

“To suggest that selling some of the key franchises of the business that are the most desired for your business plan makes no business sense,” Mr. Stephenson said.

The public spat has put a political cloud over the deal. President Trump has been critical of CNN and the deal. Several Democratic lawmakers have called for hearings to determine whether politics played a role in what is supposed to be an independent process.

Senator Charles E. Grassley of Iowa embracing Mr. Delrahim before his confirmation hearing in May.

Credit
Rex Features, via Associated Press Images

The Justice Department declined to comment on Thursday.

Pushing AT&T to unload a big part of its business to get the deal approved goes against Mr. Delrahim’s history, antitrust experts say. His past comments have largely been in line with more free-market-oriented Republican views, and he was widely expected to be more lenient on mergers than predecessors in the Obama administration.

“This is bold,” said Diana Moss, president of the American Antitrust Institute, a nonprofit that generally favors stronger antitrust enforcement. “It signals they are willing to consider the anticompetitive effects of big deals, and on the remedy side they would use structural remedies, which would signal a potential change in policy.”

In an interview late last month, Mr. Delrahim strongly rejected the idea that the White House had tried to or could influence his thinking. At the time, he would not discuss AT&T’s bid for Time Warner or any other pending mergers.

“All enforcement decisions will be based on the facts and the law. Not on politics,” Mr. Delrahim said. “That would be antithetical to everything I’ve stood for.”

Mr. Delrahim, 48, was born in Tehran, but his family moved to Los Angeles when he was almost 10, around the time of the Islamic Revolution. He attended the University of California, Los Angeles, as an undergraduate and then went to law school at George Washington University.

After a few years in corporate law, he spent time as an aide on Capitol Hill, working on some technology and antitrust issues. President George W. Bush later nominated him to be a top official at the Justice Department, where he focused on international antitrust enforcement. After his time there, he returned to corporate law in Los Angeles, representing numerous large technology, health and telecommunications companies.

In his recent interview, he said that the Justice Department did not need to intervene just because a company was big, even a monopoly. He also said the government should not startle business markets with an abrupt change in its approach to antitrust legal theory.

“There are people who think big is just bad,” he said. “They don’t understand why, but there is an instinctive reaction to big business these days.” He added that it was dangerous to go after companies without clear evidence that they were harming competitors.

Mr. Delrahim has said his comments last year about AT&T and Time Warner were taken out of context. He has told lawmakers that the deal deserved a thorough review. He said there could be antitrust concerns when a company like AT&T, which controls distribution of television content through DirecTV and internet content through its mobile and home broadband service, bought a big media company.

That view is more aligned with left-leaning consumer groups that have pushed for greater antitrust enforcement. After the news this week that the Justice Department was taking a deeper look at the deal, some Democrats, including Senator Richard Blumenthal of Connecticut, praised the tough stance.

“AT&T and Time Warner is an enormous test because we are just seeing online video disrupting the dominant cable broadband providers,” said Gene Kimmelman, president of the nonprofit organization Public Knowledge and an antitrust official during the Obama administration. “And it would be a disaster for consumers and the competitive landscape if those developments are wiped out or diminished by the approval of this deal.”

For years, though, antitrust officials have generally approved mergers of companies that do not have competing businesses. These are known as vertical mergers, and because AT&T is a telecommunications company, while Time Warner creates media content like movies, their deal would fit that category.

Problems with those mergers have generally been resolved with settlements known as consent decrees, which restrict the new company’s behavior or operations.

Mr. Delrahim is skeptical of such consent decrees, especially demands for “behavioral remedies.” The Obama administration approved Comcast’s purchase of NBC Universal in 2011 with a stack of behavioral requirements, including a requirement that Comcast make NBC content available to competing cable and streaming services.

During his interview last month, Mr. Delrahim said industries moved too fast for those remedies to be effective.

“We have major parts of our industry that are regulated by consent decrees with the Justice Department,” he said, referring to settlements with behavioral remedies.

“I don’t think I’m smart enough to figure out where the market and consumer behavior will be 10 years from now, 20 years from now, 40 years from now, 100 years from now,” he continued. The agency, he added, is still overseeing consent decrees that are a century old.

Instead, Mr. Delrahim said, he prefers so-called structural remedies, like forcing a company to sell assets before approving a merger. He said the ultimate test for healthy competition was the consumer welfare test, which looks at whether consumers are benefiting from lower prices and options.

Mr. Kimmelman said the Justice Department could be concerned about how the combined broadband, satellite and media company could hurt competitors.

The satellite service DirecTV, for example, can reach all American homes. The potential concern, Mr. Kimmelman said, is that the company may have an incentive to withhold valuable Time Warner content like HBO, TNT or CNN from rival cable and satellite providers or streaming services. The company could also make it harder for rival media companies like Starz to reach AT&T customers.

The Justice Department has proposed various options to meet Mr. Delrahim’s demands, according to multiple people close to the discussions.

In the interview last month, Mr. Delrahim defended the president’s criticism of AT&T’s bid. He said Mr. Trump was unfairly targeted for remarks about deals when other government officials were allowed to air their opinions.

“What’s interesting is that you see the president getting criticized for commenting on certain mergers and you have senators who will write with comments on the same exact merger,” Mr. Delrahim said. “I find that fascinating but maybe not new in Washington.”

And while he insisted that his decisions would be made independently, it was clear that Mr. Trump was not totally out of mind.

When he arrived at the Justice Department in late September, Mr. Delrahim received a hat as a welcome gift. It reads: “Makan Antitrust Great Again.”

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