For AT&T-Time Warner court case watchers looking to update their calendars, the U.S. Court of Appeals for the D.C. Circuit has set the time and duration of the arguments in the Department of Justice's challenge to the merger.
The arguments will lead off the court's docket at 9:30 a.m. on Dec. 6, with each side getting 20 minutes (and likely a tad extra since the court frequently lets them go over time by a bit, particularly if they have a lot of questions).
A district court judge ruled against Justice and for the merger after DOJ sued to block the meld. DOJ had argued, and still does, that without programming (Turner) or distribution (DirecTV) divestitures the deal violated antitrust by providing the incentive and opportunity for the combined company to withhold must-have programming, including to over-the-top competitors, or deny distribution shelf space.
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, saying the judge had failed to recognize some basic economic facts.
AT&T argued that DOJ 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. It also raised the specter of President Trump's attacks on the deal as a possible motivating factor in Justice's unusual opposition to a vertical merger, though antitrust chief Makan Delrahim has suggested it was a strong preference for spin-offs over behavioral conditions--like access or carriage requirements--that motivated the decision.
AT&T and Time Warner did not want to spin off programming or distribution assets to get the job done.
As previously reported, the three-judge panel hearing the arguments comprises Judges Judith W. Rogers, Robert L. Wilkins and Judge David B. Sentelle.