Antitrust Lawyer Blog Commentary on Current Developments

Articles Tagged with netflix

Andre P. Barlow
Few missions are as important to the U.S. Department of Justice’s Antitrust Division as preventing anti-competitive mergers or permitting them with adequate conditions to prevent competitive harm. After all, a merger is forever — fixing it after the fact is too messy.

The DOJ is currently investigating Anheuser-Busch InBev SA/NV’s (“ABI”) acquisition of SABMiller PLC, the largest beer merger in history, as well as its proposed divestiture of SABMiller’s interest in the MillerCoors LLC Joint Venture to Molson Coors Brewing Company. These proposed transactions lock in place the two largest beer competitors in the United States while fundamentally changing the dynamics in the beer industry for smaller brewers, distributors, wholesalers and retailers. While ABI maintains that the proposed transactions do not change the competitive landscape, the DOJ knows better.

Indeed, the DOJ’s recent approach in approving Charter Communications Inc.’s acquisition of Time Warner Cable Inc. (“TWC”) and its related acquisition of Bright House Networks LLC to create New Charter, the merged firm, is instructive. Despite no geographic overlap in any local market, the DOJ required comprehensive behavioral conditions to prevent New Charter from engaging in future anti-competitive conduct against its smaller rivals. The DOJ should take the same tough and sophisticated approach to protecting consumers from the much larger ABI/SABMiller merger and the new ownership by Molson Coors, which will create two beer giants that will dwarf its rivals.

On November 10, 2014, President Obama forcefully stated his position on net neutrality.  While acknowledging that the FCC is the agency that has the authority to create new rules protecting net neutrality, President Obama stated that the FCC should create “the strongest possible rules” to stop “paid prioritization” and other actions that favor the transmission of certain content.  President Obama believes all content providers should be treated equally.  Therefore, he is not in favor of the deals that Netflix cut with Comcast, Verizon, AT&T and Time Warner Cable earlier this year.  Indeed, President Obama does not believe that the cable company or phone company should act as a gatekeeper.

President Obama lists four bright-line rules:

  • No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player — not just those commercially affiliated with an ISP — gets a fair shot at your business.