The head of the Justice Department's antitrust division made comments Thursday that could bode poorly for AT&T’s bid to merge with Time Warner.
Addressing the American Bar Association at the National Press Club, Makan Delrahim spoke critically of previous attempts to impose “behavioral remedies” on companies in the wake of massive mergers.
Behavioral remedies are conditions that are designed by regulators to create fairness and protect consumers after mergers, but critics say they’re often ineffective and difficult to enforce. Instead of relying on behavioral remedies, he said, antitrust law should be used to prevent the deals from happening in the first place.
“Behavioral remedies often require companies to make daily decisions contrary to their profit maximizing incentives and they demand ongoing monitoring and enforcement to do that effectively,” Delrahim said. “It is the wolf of regulation dressed in the sheep’s clothing of a behavioral decree.”
While Delrahim did not mention the AT&T/Time Warner deal specifically, his speech comes at a time when he has to decide whether to green light a major merger that could change the way some people get their content. Observers have attempted to discern Delrahim’s antitrust leanings as he oversees the proposed merger. Unless it divests some of its assets — whether its own or those from Time Warner — the Justice Department has signaled to AT&T that the agency could sue to block the conglomerate’s $85 billion acquisition.
Time Warner owns TNT, HBO, Warner Bros., TBS and CNN.
Neither AT&T nor the Justice Department immediately responded to requests for comments about Delrahim’s comments.
During previous mergers, such as Comcast’s 2011 purchase of NBC Universal, the Justice Department has allowed deals to proceed as long as each party agreed to abide by behavioral remedies. Analysts assumed similar conditions might be applied to the AT&T-Time Warner deal if it were approved. But Delrahim suggested Thursday he is skeptical of such measures, arguing that compared with divestitures, behavioral remedies represent a more intrusive form of government regulation.
“It is difficult to monitor and enforce granular commitments like nondiscrimination and information firewalls,” Delrahim said. “Behavioral remedies presume that the Justice Department should serve as the roving ombudsman above the affairs of business.”
While running for office last year, Donald Trump threatened to block the deal if elected, according to Reuters. Because of Trump’s frequent attacks on CNN, some fear that the Justice Department decision will be influenced by the president’s disdain for the news network. Last week, Sen. Amy Klobuchar (D-Minn.) called on the White House to reveal any communications between Trump, his aides and the Justice Department on the deal. On Saturday, Trump said he was not responsible for making the Justice Department decision.
Without addressing the controversy directly, Delrahim emphasized Thursday that his agency’s decisions should be principally guided by law.
“If a merger is illegal, we should only accept a clean and complete solution,” he said. “But if a merger is legal, we should not impose behavioral conditions just because we can do so, to expand our power and because the merging parties are willing to do so to close their transaction.”