Federal appeals court judges grilled the Department of Justice (DOJ) on Thursday over its challenge to a lower court’s decision to bless the AT&T-Time Warner merger.
It’s unclear even from the tough questioning where the judges will land in their consideration of the appeal, but the government, which challenged the $85 billion merger last year and faces a high burden in the appeals process, faced an intense interrogation from the panel.
“This is a merger that will shape the industry for decades to come,” Michael Murray, the DOJ’s lawyer, said during his oral argument before the D.C. Circuit Court of Appeals.
The questioning centered on the economic model that the government relied on in court earlier this year and the trial judge’s interpretation of it in his decision to approve the merger unconditionally.
In a brief filed to the appeals court in August, the DOJ argued that D.C. District Court Judge Richard Leon ignored “fundamental principles of economics and common sense” in blessing the deal.
The landmark case marks the first time that an administration has gone to court to block a vertical merger since the Nixon era. The DOJ and other critics say that the deal would give AT&T and its television-provider subsidiaries unfair leverage over competitors negotiating to distribute Time Warner content.
Murray argued that the mere threat that Time Warner could black out its programming for a provider will allow it to charge more for its content, even if the likelihood of such a blackout is slim, adding that Leon was wrong to focus on the odds of that occurring.
AT&T lawyer Peter Keisler countered that the government has failed to meet its burden to prove that the merger poses harm to competition. Keisler argued that AT&T’s promise of an arbitration process in negotiations with other providers erases the threat of a blackout.
AT&T completed its acquisition of Time Warner in July, just days after Leon ruled in their favor.
The hearing comes as one of Time Warner’s most valuable properties, HBO, is locked in a contract battle with Dish Network, which resulted in HBO’s first-ever blackout. The battle was not mentioned during Thursday’s oral arguments.
The three-judge panel is expected to rule on the appeal early next year.