AT&T/TW Continues to Try to Tear Holes in DOJ Model

The government's chief economic expert's predictive model actually shows AT&T's buy of Time Warner as a net plus to consumers if that model takes into account Turner's arbitration offer to MVPDs and the FCC's program access rules, testified University of California, Berkeley economics professor Michael Katz Monday in U.S. v. AT&T and TW. That DOJ expert Carl Shapiro didn't account for those is "a fatal error," Katz said.

Though DOJ hadn't rested, Katz and UCLA's Collins Professor of Marketing, Economics and Statistics Peter Rossi both testified as AT&T/TW economics experts were called out of order to the stand to try to rebut Shapiro (see 1804120023). Monday was the 14th day of testimony.

Katz said traditional arbitration carries the risk of the sides making unrealistic offers with the expectation the arbitrator will split the difference, but baseball-style arbitration as offered by Turner creates an incentive for both sides to come close to the middle to avoid the risk of being seen as the outlier with an unrealistic ask. Katz said that in turn makes it more likely the sides will settle before getting to arbitration. Katz said arbitration is hugely relevant to the government's theory of harm in AT&T/TW because it undercuts any increased leverage New AT&T would have.

Some DOJ witnesses said they don't trust the Turner arbitration offer because of haziness about what constitutes the fair market value the arbitrator would be seeking, but Katz said the "natural interpretation" would be terms that would have happened if there hadn't been a merger. He said the FCC has included arbitration requirements with that undefined fair market value the goal in a number of vertical transaction orders, the most notable being Comcast's NBCUniversal buy.

Katz said both sides -- Turner and MVPDs -- bear some risk in arbitration, but the most-favored-nation clauses Turner has with other MVPDs skew the risk more heavily toward the programmer. That's because, he said, if Turner loses in arbitration, the terms the arbitrator goes with could ripple through other affiliation agreements Turner has with other MVPDs. Katz discounted concerns a foreclosure of HBO could be used as leverage to keep MVPDs from opting for arbitration, saying that foreclosure threat is already at play in HBO affiliation talks with MVPDs and TW can't keep going back to that same without it losing its effectiveness.

DOJ under cross-examination challenged quotes Katz attributed to the FCC, Dish Network and others praising arbitration, arguing they were taken out of context or were about arbitration in other settings, such as retransmission consent talks. The agency also challenged his credentials and particular expertise on arbitration.

Asked about Cable One testimony that it never seriously considered engaging in arbitration with Comcast/NBCU (see 1804100022), Katz said he gave less weight to that testimony since the company had been losing money on video. Katz also acknowledged under DOJ questioning that the Turner-proposed arbitration terms are different from the terms in the Comcast/NBCU order since in the former there's no route to appealing to the FCC and then the U.S. Court of Appeals. And he acknowledged an arbitrator could go with a fair market value definition or benchmarks different from those that he would advocate.

Rossi -- an expert in surveying -- heavily criticized analyses by Massachusetts Institute of Technology professor John Hauser (see 1803290022) and consulting firm Altman Vilandrie (see 1804030022) that had tried to measure through online surveys and other methods the subscription losses MVPDs would suffer in a permanent Turner blackout. He said the Hauser results were unreliable due to a biased survey, and the Altman survey similarly was based on "pure conjecture [and] unverified assumptions" that would lead to survey takers overstating the importance of Turner content.

Despite Shapiro's testimony, DOJ hasn't proven any alleged harms, BTIG analyst Rich Greenfield wrote investors Monday. He said Shapiro had no economic studies or data to back up the assertions that New AT&T is likely to coordinate with vertically integrated Comcast/NBCU or would limit HBO availability as a promotional tool to rival MVPDs.