How Should "Market" be Defined, as Mega-Mergers are Proposed?

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How to define a market, for purposes of considering market structure, always is a fundamental and difficult decision for any communications regulator or antitrust authority. So the looming issue is how the FCC and Department of Justice will define the relevant “market” if multiple deals have to be considered, all at once.

In principle, the Comcast offer to buy Time Warner Cable; AT&T offer to buy DirecTV; Sprint deal to acquire T-Mobile US; and at least one other deal involving Dish Network, could be in play, all at once.

Comcast-Time Warner Cable might be considered as a cable TV industry issue, a “video services market” issue, or a high speed access market issue.

AT&T’s possible bid to buy DirecTV likely could be viewed as a video services market issue only, with the important caveat that the key markets these days involve multiple-service, triple-play markets.

And one might argue that high speed access is the key service, with video entertainment the second most important, because it drives a key app for Internet access markets.

Sprint’s bid to buy T-Mobile US could be seen in a narrow way, as reshaping the mobile market, but Sprint also is likely to argue that that deal would add competition in the fixed network high speed access market.

Regulators might be unwilling to take the broader view, but more competition, in the form of Dish Network’s entry into mobile services, arguably is coming. How that develops is yet to be ascertained.

The point is that single-purpose satellite networks do not represent the future of the consumer communications service markets, even if video entertainment now is an integral part of the consumer communications market, as are mobile services.

The 2002 proposed merger of Dish Network and DirecTV was rejected because of its impact on the video markets overall, not simply the impact on satellite-delivered video entertainment.

Likewise, it isn’t so clear that regulating “by silo” is as fruitful or relevant as it once was, now that cable companies, telcos and Google Fiber--among others--compete across silos.

But any broader analysis will be complicated, compared to regulating by industry (cable, telco, satellite as separate markets).

A recent example, one might argue, is that regulators and policymakers wrongly--one might argue—focused on “voice” competition when crafting the Telecommunications Act of 1996. That isn’t to say there were not benefits.

But that effort to increase competition in voice happened just when voice was about to collapse as the driver of industry revenue, end user relevance and innovation.

Present times seem just as turbulent.




Edited by Maurice Nagle

Contributing Editor

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