Is a Satellite Merger In the Stars?

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For several months, the video industry has speculated on whether News Corp., owner of DirecTV and much more, will acquire EchoStar, thus combining the two satellite television platforms.

An earlier attempt at a similar merger did not succeed, but, as the old saying goes: try, try again. Nearly five years ago, the CEO of EchoStar, Charlie Ergen, tried to purchase DirecTV from then-owner General Motors. A full year later, the Federal Communications Commission announced that it would not approve the merger; the Department of Justice soon followed suit. The EchoStar-DirecTV acquisition is probably the most visible deal blocked by the Bush administration.

It was a profound embarrassment to GM’s board. Before the 2001 failed merger, GM had wanted to sell DirecTV to Rupert Murdoch’s News Corp. GM’s loss was ultimately the mutual gain of Messrs. Ergen and Murdoch. While DirecTV was effectively locked up for a year, EchoStar gained on its then much larger rival and almost surpassed it. The substantial breakup fee paid by EchoStar to GM for the failed merger was likely worth every penny to EchoStar.

No doubt, GM was especially chagrined because the only remaining suitor for DirecTV was the same entity that voiced the most strenuous opposition to the EchoStar deal: none other than News Corp. With EchoStar out of the way, News Corp. acquired DirecTV on what were likely better terms than it would have gotten in earlier negotiations.

The 2001 deal was a horizontal merger for satellite distribution of video services. For GM, video distribution was an afterthought, not a core business. EchoStar was a smaller rival engaged only in the distribution of packages of programming.

EchoStar argued that a combined company would realize much lower costs and greater efficiencies merely by using satellite spectrum to transmit common video programming once rather than twice. Of course, even without a merger, the companies could obtain such efficiencies merely by having one lease carriage of common programming to the other.

EchoStar also claimed that the relevant market was all of multichannel video distribution, encompassing both cable and the long-promised video competition from telephone companies and the Internet. On all of these antitrust arguments, Washington was not convinced.

Now News Corp. and EchoStar muse publicly about a different merger. The seller probably would be EchoStar, larger both in absolute and relative size than before. The buyer likely would be News Corp., a nimble company that specializes in the production and distribution of information and video programming, the antithesis of GM.

Mr. Murdoch has stated that he believes market conditions have changed and that regulators would be hardpressed to turn down a DirecTVEchoStar deal a second time. Perhaps, but many of the antitrust arguments made this time would be the same ones rejected four years ago.

More important, this would be no ordinary merger, and antitrust doctrine would not dominate a regulatory decision. Substantial political forces, both favoring and opposing the merger, would have major influence.

Several political reasons may favor regulatory approval this time. News Corp., which effectively helped marshal opposition to the earlier proposed merger, would now try to organize support for the reincarnated merger. Mr. Murdoch, internationally known for picking political winners from Tony Blair to George Bush, now holds fund-raisers for Senator Clinton. If political acumen and flexibility are the keys to getting the merger approved, it is difficult to bet against Mr. Murdoch.

Opposition will be formidable. Creators of programming content, from small independent operators to large Hollywood studies to networks owned by large broadcast and cable companies, undoubtedly will line up against the merger. So, too, may an unusual alliance of broadcasters, cable companies, and even telephone companies.

Since the rejection of the first EchoStar-DirecTV deal, the greatest relevant change has been the emergence of a powerful political movement opposed to “media consolidation.” The movement bullied Congress into keeping constitutionally dubious broadcast ownership rules. The 3rd Circuit Court even agreed to have the FCC rewrite its ownership rules. The principal target for the anti-consolidation movement, with support in both political parties, is none other than Mr. Murdoch.

For a deal, Messrs. Murdoch and Ergen still have many details to arrange. The deal will be difficult to get through Washington, and the parties should carefully negotiate the breakup fee.

A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He can be reached at hfr@furchtgott-roth.com.


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