The U.S. Court of Appeals for the D.C. Circuit has apparently picked the three judges that will hear the Department of Justice appeal of the AT&T-Time Warner merger.
According to PACER, the online court info service, which listed only initials, the panel will be "JWR (Judges Judith W. Rogers), RLW (Robert L. Wilkins) and DBS, which rather than a reference to AT&T's DirecTV, which is involved in the suit, but to Judge David B. Sentelle (a check of the court Web site confirmed that panel).
A district court judge ruled against Justice and for the merger after DOJ sued to block the meld, saying without programming (Turner) or distribution (DirecTV) divestitures the deal violated antitrust. The judge said the government had failed to make its case, but DOJ appealed the decision to the D.C. circuit, which has principal jurisdiction over communications-related merger issues.
Oral argument in the case is scheduled for Dec. 6.
Whichever side loses can appeal that panel decision to the full court, though those en banc reviews are more the exception than the rule.
Justice initially filed suit against the deal, arguing that the combination of Turner’s competitively significant programming with the vast distribution footprint of AT&T's DirecTV made it an "exceptional vertical merger" whose effect would be to raise prices and lessen competition, particularly from over-the-top competitors. It said the judge failed to recognize that basic economic fact.
AT&T has argued that the Department of Justice used bad numbers to come to the wrong conclusion about AT&T-Time Warner merger--that it would substantially lessen competition--and a lower court was right to reject that conclusion and allow the deal.