Could Antitrust Cops Cuff Media Mergers?
Behind the sudden spate of media mergers that is reverberating from Hollywood to Wall Street looms an enduring question: How much power is too much?
Since the days of the railroad monopolies and robber barons at the turn of the century, the US has had a long tradition of challenging large concentrations of corporate power.
Now, as new mergers promise to reshape the media and entertainment industries of tomorrow, some consumer advocates and media analysts are warning that too much power is again being concentrated in too few hands.
They worry that American audiences could be short-changed by the development of a few large companies controlling both the distribution and development of programming.
While some argue bigger can be better, and believe most of the recent marriages will go through, others oppose the deals.
''One hundred years later, it's the Information Age that's displacing the Industrial Revolution and you have the same thing happening with the airwaves and cyberspace,'' says Larry Grossman, former president of NBC News and author of ''The Electronic Republic.'' ''You have the barons, whether it be Time Warner or Disney; they're moving in to consolidate ownership.''
The latest potential megadeal is Time Warner's announcement that it is courting Turner Broadcasting. If it goes through, it would mark the month's third major media merger, coming on the heels of Disney's stunning bid for ABC and Westinghouse's effort to buy CBS.
Some are now wondering when - or even if- the Federal Trade Commission and the antitrust division of the US Justice Department, the agencies that oversee such deals, are going to step in.
By law, companies that meet a certain financial threshold are required to file with both agencies. If either believes the proposed merger would constitute a violation of antitrust laws, it can file suit to stop it. Both agencies are also forbidden by law from discussing the mergers until the issue has been resolved.
But analysts are confident federal regulators are reviewing the proposed mergers.
''There's no question all three meet the threshold,'' says Arthur Amolsch, editor and publisher of FTC:Watch, a Washington newsletter. Mr. Amolsch and others expect the agencies to vigorously review the mergers, but several antitrust lawyers doubt there are legal grounds to challenge them.
''I'd be shocked if there were any problems with either [the Disney or Westinghouse proposals]'' says Steve Newborn of Roger and Wells, an international law firm with a major antitrust practice in Washington.
Mr. Newborn points out that neither company that is bidding competes directly with the networks it would like to buy. The only instances where that's a possibility would have to be resolved first by the Federal Communications Commission.
But several analysts contend a Time Warner/Turner merger could be more problematic. As the nation's second-largest cable company, Time Warner already controls a sizable distribution system. It also owns companies that produce programming, such as Warner Brothers Studios, and holds large stakes in several cable channels, including Turner Broadcasting.
Consumer advocates oppose the proposed mergers on the grounds that cable companies have virtual monopolies in many communities. They argue that giving them too much control over programming will limit consumers' choice and up their costs.
''Virtually all of those [cable] markets are highly concentrated by antitrust standards,'' says Mark Cooper, research director for the Consumer Federation of America.
MR. Cooper is calling for a vigorous review of the mergers. Several antitrust lawyers also suggest the federal government could find some problems with the deals.
They cite several reasons:
* These companies are big enough that there could be some obscure part of the market where they do compete.
* The Clinton administration has been much more aggressive than the Bush administration in pressing antitrust concerns.
* They involve highly visible industries that affect vast numbers of consumers.
''These are glamorous businesses, very high profile,'' says Charles Rule, the former head of the Justice Department's antitrust division during the Reagan administration. ''There's more of a prurient interest factor than in the normal, run-of-the-mill case.''
But others see a threat in allowing huge media companies to develop, regardless of whether they violate the letter of the current law. ''Eventually, it will backfire because [the media firms] get too big, too cumbersome to be competitive to keep up with the pace of the times,'' says Grossman. ''And just like we brought in the antitrust laws to deal with the mammoth control of the [robber barons], I think the era will return when we deal with these new ones.''