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AT&T says the FCC doesn’t need to review its Time Warner acquisition


(Andrew Harrer/Bloomberg)

AT&T is trying to ease its way out of scrutiny by the Federal Communications Commission over the wireless and TV giant's $85 billion acquisition of Time Warner.

Telecom regulators shouldn't need to analyze the deal because it will be beyond their jurisdiction, AT&T signaled in a filing Thursday to the Securities and Exchange Commission. By potentially eliminating a layer of oversight, the claim could accelerate the merger's approval in Washington, where federal antitrust officials are also expected to review the proposed purchase.

AT&T, which became the nation's largest pay-TV provider when it acquired DirecTV last year, is gunning for Time Warner's massive library of content and intellectual property, which it hopes to distribute and sell advertising against. Time Warner owns CNN, HBO and Warner Bros., along with rights to lucrative media franchises such as “Harry Potter” and “Batman.”

To aid in getting shows and movies from their origins to TV screens, Time Warner uses satellite transmissions. The FCC typically has a role in overseeing any merger or acquisition that would transfer control of those airwaves from one company to another. For months, AT&T said it had been looking to see which, if any, of Time Warner's satellite licenses it would acquire as part of the deal. In its SEC filing Thursday, AT&T said it has concluded that no licenses will be transferred. (In addition, Time Warner could seek to spin off its FCC licenses so that they are not a part of the deal, analysts have said.)

“While subject to change, it is currently anticipated that Time Warner will not need to transfer any of its FCC licenses to AT&T in order to continue to conduct its business operations after the closing of the transaction,” the filing said.

If no licenses are changing hands, that could make it unnecessary for the FCC to become involved. That could be bad news for opponents of the deal, because the FCC grants its blessing to deals such as AT&T's on the finding that it will benefit the public. That's considered a higher bar to clear compared to what AT&T faces in persuading antitrust regulators, who simply need to be convinced that the acquisition will not harm competition among other businesses.

Analysts say the FCC has more power to shape AT&T's future behavior than does the Justice Department. For example, telecom regulators could block AT&T from exempting Time Warner shows and movies from AT&T data caps, a practice critics say is anticompetitive because it puts other content companies, such as Disney or NBCUniversal, at a disadvantage on those same networks. AT&T has defended the tactic, known as “zero-rating,” saying it offers every business the same terms.

Shielding the AT&T deal from FCC oversight could also help insulate the company from President-elect Donald Trump, who as recently as Thursday reportedly told an associate he is still against the deal. Trump has criticized the acquisition on the grounds that it concentrates too much media power in one company, though some claim his opposition is more narrowly targeted at CNN's sometimes critical coverage.

Trump could still exercise indirect leverage over the deal through his staffing of the Justice Department. But it is unclear how his nominee for attorney general, Sen. Jeff Sessions (R-Ala.), may approach matters of antitrust and acquisitions.

Correction: An earlier version of this post said Time Warner uses satellite transmissions to carry content to cable companies. In fact, Time Warner uses its satellite connections internally.

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