DOJ Approves AT&T, BellSouth Merger
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The Justice Department on Wednesday approved AT&T Inc.’s $67 billion purchase of BellSouth Corp. after determining the merger isn’t likely to impact competition in the telecommunications industry.
“After thoroughly investigating AT&T’s proposed acquisition of BellSouth, the Antitrust Division determined that the proposed transaction is not likely to reduce competition substantially,” Justice antitrust chief Thomas Barnett said. “The division investigated all areas in which the two companies currently compete.”
The DOJ didn’t attach any conditions to the merger approval, an unusual tactic designed to sidestep a courtroom battle that has arisen over two earlier telecommunications mergers.
AT&T said it was elated with the quick DOJ approval of the merger. “This unequivocal and unconditional approval underscores the competitive nature of our industry and the pro-competitive benefits of this merger,” AT&T General Counsel James Ellis said. “We look forward to the Federal Communications Commission’s prompt approval of the merger.”
The deal still faces a decision from the FCC, which is expected to announce its approval Thursday. “The bigger hurdle will be the FCC to the extent that (the DOJ approval) may put more pressure on them to come up with some conditions,” an analyst with Stifel Nicolaus & Co., Christopher King, said.
Analysts, however, believe that if conditions are included, they will be minimal. “At the end of the day, we don’t expect any overly onerous conditions,” Mr. King said.The analyst has no conflicts of interest to report.
Consumer groups have long opposed the AT&T-BellSouth merger, warning that it will give AT &T even more control over the pipeline through which online content is delivered. Small phone companies that compete with the big regional phone companies also have warned that the merger may lead to higher prices in the local private line market — one of the main sources of contention in the Verizon-MCI and AT&T-SBC combinations.
One group, the Competition Coalition, expressed disappointment in the news.”Unfortunately, by endorsing the largest telecommunications merger in history, the DOJ ignored the interests of consumers and the valid concerns raised by many experts and organizations that the reconstitution of Ma Bell will lead to higher prices, job cuts, violations of customer privacy, and a widening of the digital divide,” spokesman Andrew Schwartzman said.
Capitol Hill is also expressing some concern about the impact of the AT&T-BellSouth transaction if it is approved with few conditions. Less than two weeks ago, House Judiciary Committee Chairman James Sensenbrenner, R-Wis., and Rep. John Conyers, D-Mich., asked the Justice Department to delay its own review of the merger until the federal judge could complete his review of the two earlier pacts with antitrust regulators.
Sen. Patrick Leahy, D-Vt., and Herb Kohl, D-Wis., the ranking Democrat on the Judiciary Committee’s antitrust subcommittee, also wrote to the Justice Department asking why it allows mergers to conclude before the courts have completed Tunney Act reviews and before the close of a public comment period. Sens. Mike DeWine, R-Ohio, and Mr. Kohl also asked the Justice Department and the FCC to consider imposing conditions on the AT&T-BellSouth merger to prevent the new company from hoarding the wireless spectrum it controls.
Once approved, AT&T would take another step towards reforming the old Ma Bell, which was broken up into seven regional phone companies. Verizon Communications and Qwest Communications International Inc. are the other remaining Bells. AT&T would also have sole control of Cingular Wireless, the No. 1 wireless provider.
AT&T is benefiting from an unusual Justice Department decision to approve the merger without filing a consent decree in court. By avoiding a consent decree, the Justice Department would shield the merger from the increased powers granted to the courts to review mergers since Congress strengthened the Tunney Act in 2004. Judge Emmet Sullivan’s review of whether Verizon’s merger with MCI and AT&T’s own earlier purchase by SBC Communications Inc. are in the public interest is unlikely to reverse those transactions, but could have set a precedent for the AT&T-Bell-South merger.
It is unusual for the DOJ to refrain from issuing a consent decree, and it is unclear how that will affect the Federal Communications Commission’s plans to vote on the merger Thursday. In its two prior telecommunications services reviews, the FCC relied on analysis performed by the DOJ, and in this case, it won’t be able to factor such work in to its own decision.
Even so, FCC Chairman Kevin Martin has been pushing the commission to approve the AT&T-BellSouth transaction and is on firmer footing now that the Justice Department has acted. The Justice Department typically approves mergers before the FCC does. The biggest wildcard is whether the FCC chief will be able to garner the three votes needed to approve the transaction. Republican Commissioner Robert McDowell may recuse himself from voting, and the two Democratic commissioners on the fiveperson FCC aren’t likely to rubber stamp any regulatory review.
When the FCC approved two other telecommunications mergers last year, it required the merging companies adhere to some basic principles of network neutrality for two years. However, the companies — Verizon and MCI, as well as AT&T Inc. and SBC — weren’t banned from charging fees for speedier, guaranteed delivery of online content, the thorniest issue in the debate over what kind of power Internet service providers should have.
The issue of whether ISPs should be required to treat all Internet traffic equally is still a hot-button issue.