It seems that the pending AT&T–Time Warner merger continues to be a political hot potato, with different factions of government and industry continuing to argue over who’ll review it. Whether the merger ends up at the Department of Justice alone or at the DOJ and the FCC will make all the difference: DOJ policies make it likely to approve the merger, whereas the FCC, even with its corporation-friendly chairman, will have to give it a more rigorous review that could kill the deal or at least place some restrictions on it.
As you may remember, back in the strange world of 2016, then-candidate Donald Trump expressed very clear opposition to the proposed merger, saying it was “a deal we will not approve.” That seems clear cut, except it’s Trump, so... maybe not. And while he can pressure the FCC to act one way or another, the commission is technically independent and out of his complete control.
That apparently hasn’t stopped News Corporation / 21st Century Fox overlord Rupert Murdoch from getting Trump to try. The Hollywood Reporter said this week that Murdoch “now regularly lobbies Trump against AT&T and Time Warner's tie-up,” trying to have him get it under the FCC’s review so that the commission can block it.
The FCC’s lone Democratic commissioner, Mignon Clyburn, is also trying to get some say over the merger. In an interview with Communications Daily on Wednesday, Clyburn said the merger “is ripe for review just by its scope and significance.” She also prodded the two companies a bit, saying that if they were “confident consumers benefit” from the merger, “they should welcome FCC review.”
(Ars Technica recently noted that AT&T’s argument for why consumers will love the merger includes... improved targeted advertising. Exciting stuff.)
Of course, AT&T is doing everything it can to avoid coming under FCC scrutiny, since it knows that can only get it into trouble. AT&T keeps claiming there’s nothing in the merger that would trigger oversight from the commission, and there’s speculation that it would just get rid of any elements of Time Warner that would trigger a review should the commission take interest.
It’s in good shape so far. FCC chairman Ajit Pai hasn’t directly commented on the merger, but the comments he’s made seem to indicate a lack of interest. Speaking to Fox Business about his approach to mergers last week, Pai said, “Generally speaking, we want to make sure that there's a competitive marketplace, and any transaction that is presented to me, I will apply the test that the FCC has long applied: is the consummation of this deal in the public interest?”
That’s great — and legally required, of course — but his response also rests on a few key words: “presented to me.” Pai doesn’t sound like he’s about to go looking for a way to stop AT&T. Unless the FCC is explicitly made to oversee the merger, he’s not interested.