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Odds 'clearly favor' AT&T if merger battle heads to court, says former FCC official

  • Modern antitrust thinking looks with disfavor upon blocking vertical deals, plus AT&T can also argue it is a First Amendment issue, Blair Levin said.
  • CNBC confirmed Wednesday that the Justice Department demanded that CNN parent Turner Broadcasting or Direct TV be sold before approval of the $85 billion merger.
  • Late Wednesday AT&T Chairman and CEO Randall Stephenson said the company has "no intention" of selling CNN.

The odds "clearly favor" AT&T if the wireless giant and the Department of Justice were to head to court over AT&T's merger with Time Warner, former FCC official Blair Levin told CNBC on Wednesday.

CNBC confirmed on Wednesday that the Justice Department demanded that CNN parent Turner Broadcasting or Direct TV be sold before approval of the $85 billion merger.

Late Wednesday AT&T Chairman and CEO Randall Stephenson said the company has "no intention" of selling CNN.

"Modern antitrust thinking very much looks with disfavor upon blocking vertical deals. So I think AT&T has a pretty high level of confidence," Levin said in an interview with "Power Lunch."

Plus, AT&T can argue on the basis of press reports that this is a First Amendment issue, he added.

"They're being punished for the exercise of free speech by CNN. So I would think most courts would look to say the DOJ can't block it on these grounds."

President Donald Trump has repeatedly criticized CNN as fake news over the past year.

Adonis Hoffman, former chief of staff and senior legal advisor to FCC Commissioner Mignon Clyburn, said, if accurate, the developments are "troubling."

Vertical mergers with very little competitive impact would usually get a "green light" from regulators, he told "Closing Bell."

"Let's hope that this one is a unique sort of set of circumstances that revolve around the politics and not some sort of policy departure that is going to be ushered in by the Trump administration," he said.

Antitrust attorney Kevin Arquit agrees that AT&T would have a "strong case" in court.

"Vertical deals are generally seen as pro-competitive and so the government is usually loath to try to stop them," he said in an interview with "Power Lunch."

Levin noted blocking such a vertical deal would take the government back to a period most Republicans wanted to leave — when it says "big is bad."

"This has much broader implications. If the Trump Department of Justice is saying 'we're now going to look at vertical deals as potentially anti-competitive,' you're going to see all kinds of investment bankers and all kinds of others go 'whoa, whoa, whoa, wait a minute.' That has precedential problems for lots of other things we're thinking about," said Levin.

"The Department is committed to carrying out its duties in accordance with the laws and the facts," a DOJ spokesperson said in response to Stephenson's statement. "Beyond that, the Department does not comment on any pending investigation."

The Financial Times first reported the Justice Department told AT&T it must sell CNN and later The New York Times reported either CNN or DirecTV must be sold.

— CNBC's Tae Kim and Andrew Ross Sorkin contributed to this report.