Media and Leisure Marketplace Gets a Convert in DOJ-FTC Antitrust Incredibly hot Seat | Insights

Barbara Merkley

The Federal Trade Commission (FTC) and Antitrust Division of the U.S. Section of Justice (DOJ) held another installment of their “listening tour” on April 27, 2022,1 with a concentrate through this session on the media and enjoyment sector. As with the forums prior to it, the FTC and DOJ held the discussion to enable smaller market place participants – in this instance artists, articles creators, journalists and the general public – to specific their sights on the results of consolidation in the media and enjoyment marketplace as element of the broader effort and hard work to acquire opinions to inform the pending revisions to the antitrust agencies’ merger guidelines.

Summary of the Media and Enjoyment Listening Discussion board

FTC Chair Lina Khan opened the forum by highlighting considerable market improvements in the media and leisure market in excess of the past decade and emphasizing how the arrival of new technological innovation has reworked the way media – be it television, videos or songs – is eaten by the community. Kahn pointed out a sizeable volume of vertical consolidation involving cable and broadband companies in current years and expressed issue that now only a handful of businesses managed a bulk of the amusement offer chain. These adjustments had led to a very similar issue by market watchdogs that these integrated entities would wield their industry ability against market staff and information creators and limit the variety of content material achieving individuals. With respect to news media, Kahn cited figures estimating that around fifty percent of the counties in the place have only a solitary newspaper, routinely owned by a greater news media company, producing concerns that local coverage and obtain to information and facts are remaining stifled. In sum, Kahn cautioned that unchecked consolidation in the media and entertainment sector could permit “outsized power on how details is dispersed in our country” influencing, in her words and phrases, the “lifeblood” of our democracy.

Panelists upcoming shared anecdotal accounts echoing Kahn’s opening reviews. From stagnating compensation for audio engineers, content creators and musicians, to the effects on nearby journalism, free speech principles and national safety, the individuals echoed a single crystal clear information: The antitrust organizations can not address the anticompetitive consequences that flow from additional consolidation via behavioral solutions in consent decrees settling difficulties to proposed mergers. Panelists insisted the antitrust companies will have to be a lot more intense in litigating to block anticompetitive transactions and protect against any further more consolidation in media and entertainment. Jonathan Kanter, who heads the DOJ’s Antitrust Division, and Khan, in supplemental remarks, sympathized with these “gripping” accounts and assured the panelists their concerns would be thought of as the merger recommendations undertake revision. Beyond the financial affect of anticompetitive mergers expressed by the panel members, Khan reiterated the ongoing – and lots of moments immeasurable – dangers of consolidated information and media distribution platforms susceptible to the malfeasance of foreign actors. For his portion, Kanter echoed Khan’s sentiments, reiterating in closing that the media market is the “lifeblood” of our democratic society, contributing meaningfully to the “essence of what helps make our place awesome.”

Essential Concerns

A crucial worry that surfaced from contributors throughout this listening tour was the effectiveness of the FTC’s and DOJ’s use of consent decrees and settlement agreements in regulating anticompetitive conduct. Though neither Kahn nor Kanter manufactured any remarks that heralded either agency’s abandonment entirely of the use of this kind of steps, the tenor of their remarks undoubtedly emphasized a issue that antitrust regulation and enforcement of the last few a long time had depended far too heavily on regulation of markets via the use of consent decrees, fairly than shaping the legislation by way of litigation of antitrust cases to judgment.

Considering that the early 1990s, the use of consent decrees and settlement agreements to solve litigation introduced by both the DOJ, in criminal and civil contexts, and individually by the FTC, has been popular.2 While the DOJ has notionally suggested a shift from a “regulatory” to a “regulation enforcement” technique to imposing federal antitrust legal guidelines in the course of the prior administration,3 these varieties of resolutions have persisted. The mixture of the a variety of felony and civil litigations that the DOJ has pursued in the past calendar year, coupled with the continual messaging announced from the optimum degrees of the FTC and DOJ, demonstrate the recent administration’s motivation to pursue a appreciably extra litigation-focused enforcement approach.

In current months, the agencies have supplied two motives for why they intend to litigate a lot more situations than they have in the previous. 1st, if profitable, litigation will prohibit anticompetitive mergers – whole cease, and without any compromises. Second, litigation will permit the agencies to advocate to courts in favor of their views of how the antitrust rules should to be interpreted and, if they thrive, will aid them develop the legislation. A 3rd unspoken consequence of this coverage change would be to heighten the deterrence influence for functions thinking about consolidations that increase potential anticompetitive fears.

As emphasised in the course of this most latest listening forum, FTC and DOJ are acutely tuned in to the effects of consolidation in the media and amusement industry (as effectively as several other people) on economic problems. Kahn and Kanter have each expressed considerations over the earlier couple of months that existing antitrust jurisprudence is out of action with recent market realities. In purchase to modify the regulation, the DOJ and FTC ought to litigate far more lawsuits to judgment. No matter if the government has the sources to employ its desired coverage viewpoint of using consent decrees as an exception to litigation, somewhat than a rule, stays to be found. Khan and Kanter also facial area the supplemental problem in in search of adjustments to antitrust jurisprudence that has been many years in the making – but appear dedicated to taking on that problem.

Summary and Factors

In the in close proximity to expression, corporations both equally in the media and amusement place and additional broadly considering or pursuing mergers really should be conscious that, if the antitrust agencies raise fears with their transactions, all those challenges might not be capable of resolution by divestitures or behavioral commitments that the organizations would have accepted in the past. Consequently, partaking antitrust counsel early in the merger procedure remains a greatest exercise. Marketplace members fully commited to pursuing strategic transactions need to undertake a expense-advantage evaluation to consider their willingness to go after the transaction through litigation for the reason that, based mostly on Khan’s and Kanter’s responses, that may possibly ever more be what it will acquire for merging events to go after their objectives.

As the government’s approach toward consent decrees shifts from actions-concentrated resolution practices and toward a product where by government-led litigation challenging merger makes an attempt turns into a lot more commonplace, Holland & Knight’s Antitrust Staff, which consists of previous leaders in the federal and point out antitrust enforcement businesses, stands all set to advise and, if vital, protect shoppers as they navigate this new enforcement atmosphere.

Notes

1 This listening discussion board follows prior boards linked to the foodstuff and agriculture marketplace and health care business. See Holland & Knight alerts released on March 31, 2022, and April 19, 2022, respectively.

2 Douglas H. Ginsburg and Joshua D. Wright, Antitrust Settlements: The Tradition of Consent, in Vol. I William E. Kovacic: An Antitrust Tribute – Liber Amicorum 177 (Charbit et al. eds., 2013).

3 See former U.S. Assistant Attorney Normal Makan Delrahim’s remarks to the New York Condition Bar, Jan. 25, 2018.


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