Ted Johnson

A group of Democratic Reps are seeking documents from Attorney General Jeff Sessions relating to the Justice Department’s decision to file a lawsuit to block AT&T’s planned merger with Time Warner. They are interested in whether the decision was in any way impacted by President Donald Trump’s disdain for CNN, a unit of Time Warner. Makan Delrahim, the chief of the Antitrust Division, denies that the lawsuit was influenced by the White House.

The Supreme Court waded into a two-decade long debate over the extent to which the Federal Communications Commission can relax media ownership rules. At stake are recent FCC moves toward deregulation, allowing the common ownership of a newspaper and broadcast stations in the same market, as well as giving more leeway for media companies to own more than one TV and radio outlet in the same city.

President Donald Trump sent out a couple of tweets Oct 29 pushing back on the idea that he’s called the media the “enemy of the people.” It’s the “fake news” media, he specified. “A very big difference.” The first time that President Trump used the phrase, “enemy of the American people,” he identified the New York Times, NBC News, ABC, CBS, and CNN. He’s also called the Washington Post “fake news” several times. In a Sept 16 tweet, he characterized all of mainstream media as “fake news.” 

The Trump era has now seen two major media mergers halted or almost stopped — Sinclair Broadcast Group’s combination with Tribune Media, and AT&T’s acquisition of Time Warner. Both transactions met with turbulence from the feds, but that does not signal that media consolidation will be slowed in the coming years — far from it. In fact, getting far less attention are moves that likely will encourage more media mergers and acquisitions down the road. Here are a few examples: 

The Justice Department is urging a federal judge to block AT&T-Time Warner’s proposed merger or require a significant sale of assets, rather than impose “behavioral” conditions on the deal like an agreement to arbitrate disputes with distribution rivals. In its post-trial brief, the government says that US District Judge Richard Leon could allow the merger on the condition that it not include Time Warner-unit Turner networks, or that AT&T sell off DirecTV.

Most reporters share a sense that covering President Donald Trump is a challenge like no other, at a time when political journalists and the First Amendment are under siege. With the easy accessibility of social media, some political reporters find themselves getting death threats. 

A top executive at Comcast testified at the AT&T-Time Warner antitrust trial that he has “no reason” to believe that the massive merger will have an impact on their company’s negotiations for Turner channels or HBO.  A key argument in the Justice Department’s case is that the merger will give AT&T-Time Warner increased leverage to demand more onerous fees from distribution rivals, ultimately driving up prices for consumers.

House Communications Subcommittee Chairman Marsha Blackburn (R-TN) introduced network neutrality legislation, the Open Internet Preservation Act, that prohibits internet providers from blocking and throttling content, but does not address whether Internet service providers can create so-called “fast lanes” of traffic for sites willing to pay for it. The legislation also would require that ISPs disclose their terms of service, and ensure that federal law preempts any state efforts to establish rules of the road for internet traffic.

Federal Communications Commission Chairman Ajit Pai said that the agency is studying restrictions on media ownership, characterizing a number of the rules as “quite antiquated.” In an interview with Variety, Chairman Pai said that an easing of such restrictions “is one of the issues that is under consideration. We haven’t made any firm determinations there, either.” Many broadcasters have championed the idea of lifting restrictions that limit the number of stations that one entity can own.

Also, in October, President Donald Trump said that he opposed the proposed merger of AT&T with Time Warner, saying that it was too much “power in the hands of too few.” A campaign adviser, Peter Navarro, now director of the National Trade Council, promised that Trump “will break up the new media conglomerate oligopolies that have gained enormous control over our information, intrude into our personal lives.” “We are studying the issue,” Chairman Pai said. “But what I can tell you is that having worked on that question [of media ownership] for a quite a while, I do think that a number of media ownership rules have become quite antiquated.” Asked whether he agreed that there was a problem with media concentration, Pai said that “we obviously have to take a case-by-case look as to the competitive landscape, and so it really depends on the geographic market, the product and service market that we are talking about. If it is a transaction that is involved, what are the competitive implications of the confirmation of that transaction? And so it is hard to opine in the abstract about a situation like that.”

While outgoing Federal Communications Commission chairman Tom Wheeler had presided over an activist commission, ready to act on marketplace trends that would seemingly threaten competition, Chairman Ajit Pai is convinced that the best approach is one that is largely hands-off. He has signaled a willingness to target regulations that he sees as stifling investment. Yet President Donald Trump’s populist campaign rhetoric may conflict with Chairman Pai’s laissez-faire approach, particularly when it comes to big media mergers. Pai already has said that the FCC would not weigh in on the AT&T-Time Warner combination. That would leave the Dept of Justice as the sole agency to assess the deal. But the FCC, which reviews transactions to determine if they are in the public interest, would have an easier path to block the merger than would the DOJ, which, more narrowly, weighs whether a combination conforms to antitrust law.