In spite of all the attention, much of which is negative, AT&T and Time Warner seem bent on joining at the hip. So, like all good corporate citizens, these two players are going to try an end-around that might just leave the FCC out in the cold.
Mergers of this nature generally have to receive regulatory approval from both the U.S. Department of Justice and the FCC. However, there is a loophole. The FCC only gets involved when communications licenses are transferred between two organizations. AT&T has stated that the licenses would still remain in the Time Warner business, as part of the wider AT&T group, effectively skirting the FCC’s role in the process. Regulatory approval would still have to be sought from the U.S. Department of Justice though. But in theory, if the loophole holds true, the deal might be able to go ahead without the FCC getting involved.
That is a big win for AT&T/Time Warner because the DoJ is purely a legal organization and one thing AT&T and Time Warner have is the best legal beagles money can buy. So chances are pretty good they can out-maneuver the best that the DoJ has to offer.
However, even with the FCC ousted, these two players still have to deal with the fact that the politico is not a big fan of this. There is a fair amount of talk on Capitol Hill that such a merger will create a conglomerate with too much power and control in the media and wireless segments. This editor happens to agree with that position.
The outcome here is still murky, even if the FCC is trumped (no pun intended). The real game now is legal and political. It remains to be seen exactly where this will end up. But if AT&T/Time Warner win, unregulated, that will not likely fare well for the future of competition in the MNO biz.