OTI Urges FTC, DOJ to Take Stronger Posture on Vertical Mergers

On Wednesday, OTI and Public Knowledge urged the Federal Trade Commission (FTC) and the Department of Justice (DOJ) to update their internal guidelines for reviewing vertical mergers. The guidelines, which were last published in 1984, play a significant role in how the antitrust agencies evaluate mergers. In comments filed yesterday, OTI and Public Knowledge asked the agencies to add new anticompetitive presumptions to the guidelines, evaluate the impact of past vertical mergers, and to conduct a more robust comment process that gives the public an adequate opportunity to review the record and provide feedback.

OTI has participated in several vertical merger reviews, including Comcast’s purchase of NBCUniversal in 2011, AT&T’s acquisition of DirecTV in 2015, and AT&T’s merger with Time Warner in 2018. OTI also participates in horizontal merger reviews, such as the ongoing T-Mobile/Sprint deal, but those mergers are governed by a separate set of guidelines that are not implicated by yesterday’s comments.

The following quote can be attributed to Joshua Stager, senior counsel at New America’s Open Technology Institute:

“These guidelines haven't changed since 1984, so we applaud the agencies for undertaking an update. Over the past 36 years, the American economy has consolidated significantly, competition has waned, and inequality has worsened. This has been particularly apparent in the telecom and media markets, where mergers such as Comcast/NBCUniversal and AT&T/DirecTV have resulted in price hikes and broken promises. It is time for our antitrust enforcers to formally recognize this reality and take a stronger posture towards vertical mergers. We look forward to working with the FTC and DOJ as they develop new guidelines.”