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The new AT&T could control the path from the cable box to your phone

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Who writes the rules of the mobile video business?

AT&T stock

This weekend saw one of the biggest corporate acquisitions in years as AT&T reached a deal to purchase Time Warner for more than $80 billion. If approved, the deal would create a massive new joining of the telecom and media business, along the lines of AOL-Verizon (combined in May of last year ) and Comcast-NBCUniversal (combined in 2011, and also an investor in The Verge’s parent company).

But AT&T's new conglomerate has a unique combination. Comcast has a bundle of cable channels and a fiber network — a scary combination for many — but it doesn't have a wireless business (at least not yet). Verizon has a wireless business and a web empire, but it doesn't have any TV channels. The newly formed AT&T conglomerate would be the only company with the means to build a direct pipeline from Game of Thrones to your smartphone — which could be a powerful and frightening force in the years to come.

A direct pipeline from Game of Thrones to your smartphone

The deal comes as mobile carriers are exercising a lot more control over how that video gets to your phone. Both AT&T and Verizon run zero-rated sponsored data programs that let companies pay to exclude their services from your data cap. T-Mobile has a slightly altered version of the system, allowing free data for video services that agree to provide low-quality, throttled streams as well as other apps popular enough to serve as good marketing. So far, most of the services have maintained a nominal neutrality: anyone can buy sponsored data, so long as they can pay for it. But the system could still gives carriers the power to decide which video services cost money to use and lets them nudge users toward conventional video over other kinds of data.

If the future of the media business is mobile video, zero-rating could give carriers frightening new powers — and no one would benefit more than the newly joined AT&T-Time Warner conglomerate. It’s easy to imagine a future in which a phone on AT&T’s network will get free streaming video through CNN app, while a phone on Comcast’s nascent wireless service gets free streaming video through an MSNBC app. (Fox News, owned by NewsCorp, would be left to make the best deals it can.) We’re already seeing versions of this future through streaming sports deals. If you want to stream an NFL game on your phone or iPad, you’d better be on Verizon.

That system could have a profound effect on the traditional cable bundle, the current home of Time Warner holdings like HBO, CNN, and TBS. Net neutrality advocates usually hate the cable bundle because of its high barrier to entry and the resulting consolidation: popular channels like ESPN and MTV tend to be launched and operated by massive corporations, and don’t have to worry about competition from scrappy upstarts without corporate backing. But even as those channels get bundled and re-bundled according to the cable company’s whims, each tier of service represents a fairly level playing field for the channels that make it through. If you’ve got CNN, you’ve probably got Fox and MSNBC, too, and each one gets the same amount of space on the dial.

Carriers will have lots of ways to tip the scales

But fewer people are buying cable, and the shift to mobile seems inevitable. US cable subscriptions are down 15 percent over the last five years, and most of those viewers are leaving in favor of online video, particularly mobile video. Channels see mobile-friendly services like HBO Now as the best way to stop the bleeding. It’s still unclear whether that will happen through standalone apps or skinny-bundle services like the one YouTube is reportedly cooking up, but that’s where we’re headed.

Even without resorting to blackouts and sponsored data, carriers will have lots of ways to tip the scales as cable companies move to mobile. Because carriers also control most of the phones sold in the US, they can load in preinstalled program to push users toward particular channels and content. Verizon has already experimented with this model through its Go90 system, which serves video from a variety of AOL properties.

For now, content companies are holding most of the cards — but that only means AT&T’s new powers are more likely to appear as a bonus rather than a restriction. If the carrier suddenly offered free streaming for the HBO app to anyone on their network, most of us would be more inclined to celebrate than complain. But the result is still a troubling entanglement between the companies that make content and the networks that deliver it.

The result is a retread of many of the same arguments made over the course of the net neutrality fight — but unlike that fight, there’s no clear regulatory mandate to clear up this particular mess. The FCC’s Open Internet Order doesn’t address zero-rating, and so far the commission has taken a wait-and-see approach to sponsored data arrangements. That’s in part because, despite the best efforts of grumbling bloggers like me, the services are still relatively popular, and the prospect of free HBO isn’t likely to change that.

None of this is inevitable. The future is unwritten, and it’s entirely possible that the FCC will mandate strict separations between the businesses or begin to crack down on zero-rating in the next administration. It’s also possible the deal will fall apart under pressure from the Justice Department, as happened when AT&T tried to buy T-Mobile in 2011 and when Comcast tried to buy Time Warner last year. But if that doesn’t happen, there will be a lot of uncertainty about the rules of the game for cable channels moving onto mobile video. With a direct alignment between cable channels and mobile data, a Time-Warner-AT&T conglomerate would be perfectly positioned to take advantage of that uncertainty — and it’s unclear if anyone would stand in their way.

Disclosure: Comcast’s NBC Universal division is a minority investor in The Verge’s parent company, Vox Media.