The Justice Department’s Fanciful Case Against AT&T-Time Warner

There is rarely anything to celebrate when two companies in the same industry decide to merge. Mergers–whether horizontal or vertical–tend to entrench incumbents and raise barriers to entry for disruptive newcomers, which robs consumers of choices.

Within the industry itself, mergers channel capital toward scale, at the expense of innovation, which can lead to stagnation and ennui.

And, while the shareholders of the companies involved may see a short-term windfall, in the long run the buyer generally just ends up inheriting whatever problems drove the seller to sell in the first place, without actually solving them.

So, there is more than ample cause to be skeptical of AT&T’s proposed $109 billion acquisition of Time Warner.

That said, however, the theory of the government’s case for blocking the merger, which went to trial this week, seems cockeyed. Read More »

The More Things They Change, The More Digital Platforms Become The Same

YouTube is working on a plan to be more like Facebook, Snapchat, and Twitter. According to a report by VentureBeat, the video platform has been developing a new feature internally called Backstage that will allow users to post photos, links, text posts and other non-video content alongside their videos. The new content will resemble a Facebook Timeline, presented as a feed scrolling in reverse-chronological order on the user’s channel home page, but also appearing in subscribers’ feeds and notifications.

Backstage, or whatever it ends up being called, is expected to be rolled out later this year on select YouTube accounts.

The move to make using YouTube more like using Facebook seems only fair at this point given that Facebook has lately become more like YouTube. The social network has, with considerable success, moved aggressively to turn itself into a major platform for hosting and sharing user-created videos — once the near exclusive facebook_videoterrain of YouTube.

Facebook has also lately taken steps to become more like Twitter, launching Facebook Live to rival Periscope, while Twitter has tried to become more like YouTube by making video a bigger part of its offering.

A similar convergence is underway in the music streaming area. Pandora is reportedly in the final stages of negotiations with the record companies to launch an on-demand tier to its service, which would make it more like Spotify and Apple Music. Spotify, meanwhile, is acting more YouTube and even Netflix, adding original video to its mix of content.

It’s getting to where you can’t tell the players apart without a scorecard.

More to the point, it’s getting harder for digital platforms and services to differentiate themselves from each other. Music streaming services, which already share substantially the same catalog of content and now increasingly share the same business model, are trying, through the increasing use of  individual artist exclusives. Others have sought to make human vs. machine curation a point of differentiation. Read More »

Music In the Antitrust Crosshairs

File this one under “be careful what you wish for.” Two years ago, a group of major music publishers, along with ASCAP and BMI, which collect performance royalties on behalf of songwriters and publishers, asked the Department of Justice to consider changing how it enforces the antitrust consent decrees that have governed the two leading PROs, to allow publishers to withdraw digital rights to their repertoire from the PRO blanket licenses.

DOJ took it under advisement and this week gave its answer, according to a report by Billboard, and it was not at all what the publishers were hoping for.

elizabeth_warrenUnder the decrees, ASCAP and BMI are not allowed to pick and choose which songs in their catalogs to license. They must either grant a blanket license to the entire catalog or not at all. Thus, if a song is in their catalog for one use it’s in it for all uses.

The publishers raised the issue because they were unhappy with the royalty rate that internet radio services (cough — Pandora — cough) were paying under the compulsory performance license available to broadcasters, including internet broadcasters. Those rates are set by the rate courts that oversee the consent decrees and get collected by ASCAP and BMI. Having failed to persuade the courts to raise them, the publishers wanted to be able to withdraw digital rights to their songs in the PROs’ catalogs and negotiate directly with internet broadcasters.

This week, according to the Billboard report, DOJ said no. Read More »

The FCC Plays For Time in Charter-TWC Merger

The Federal Communications Commission and the U.S. Justice Department this week each signaled their intent to approve Charter Communication’s $65 billion acquisitions of Time Warner Cable and Brighthouse Networks, subject to several conditions.

The mergers will create the second largest cable-TV provider in the country, with 17.4 million subscribers, behind Comcast’s 22 million. Strikingly, though, none of the conditions attached by the FCC and DOJ have to do with the provision of cable-TV service. Instead, they deal almost entirely with promoting over-the-top video as a viable competitor to cable.

FCC_headquartersUnder the deal with the FCC, the merged company will be prohibited from imposing usage-based pricing or data caps on its 19.4 million broadband subscribers, a tactic many cable internet providers have turned to lately to discourage video cord-cutting by indirectly raising the cost of using OTT services like Netflix.

Charter will also be prohibited from charging Netflix and other OTT providers with interconnection fees for delivering traffic to Charter broadband subscribers.

Under the agreement with the Justice Department, Charter will be barred from inserting or enforcing most-favored nation (MFN) clauses in its carriage agreements with programmers — a tactic many pay-TV providers, particularly TWC, have used to discourage programmers from making their content available on OTT platforms. Read More »

Why Sean Parker’s Screening Room Could Succeed Where Others Failed

Efforts to shorten the theatrical window by enabling early in-home availability of movies have a poor track record in Hollywood. DirecTV’s effort in 2011 to offer movies in-home 60 days after their theatrical release for $30 quickly foundered, despite the support of four major studios, largely because the studios, fearful of retaliation from theater owners, didn’t shorten the window enough to persuade consumers to shell out the high ticket price. Digital HD, heavily promoted by 20th Century Fox, offers movies in home three to four weeks before their DVD/Blu-ray release for a premium price, but support from other studios has been spotty and DHD has had negligible impact on consumer behavior.

home-theater-lightingEfforts to eliminate the exclusive theatrical window altogether, such as Netflix’s insistence on making its original feature films available on its streaming service the same day they’re released in theaters, have been met with a near total freeze out by theaters, and no major studio has dared try.

It’s no surprise, then, that the new proposal from former Napster co-founder Sean Parker and Prem Akkaraju to offer movies in-home day-and-date with their theatrical release for $50, through a platform called The Screening Room, has sparked controversy in the Hollywood. Art House Convergence, which represents 600 independent theaters, released an open letter to the industry decrying The Screening Room concept.  “We strongly believe if the studios, distributors, and major chains adopt this model, we will see a wildfire spread of pirated content, and consequently, a decline in overall film profitability through the cannibalization of theatrical revenue,” the letter said. “The theatrical experience is unique and beneficial to maximizing profit for films. A theatrical release contributes to healthy ancillary revenue generation and thus cinema grosses must be protected from the potential erosion effect of piracy.” Read More »