Convergence mergers where s the relevant market
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Convergence Mergers: Where’s the Relevant Market?. Glenn B. Manishin Practising Law Institute — San Francisco, August 2000. Telecom Mergers Redux. 1999 — e.g., BA/NYNEX, SBC/Ameritech DOJ and FCC act at cross-purposes

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Convergence mergers where s the relevant market

Convergence Mergers: Where’s the Relevant Market?

Glenn B. Manishin

Practising Law Institute —

San Francisco, August 2000

Telecom mergers redux
Telecom Mergers Redux

  • 1999 — e.g., BA/NYNEX, SBC/Ameritech

    • DOJ and FCC act at cross-purposes

    • FCC imposes costing/OSS and sep. sub. conditions in view of potential competition

  • 2000 — e.g., AT&T/MOne, WCom/Sprint

    • Improved agency coordination

    • DOJ applies traditional LD market definition

    • Incremental issues (cable concentration v. broadband competition)

Practising Law Institute

Changing market definition s
Changing Market Definition(s)

  • Local v. long-distance telecom (and Section 271)

  • Telecom v. Internet transport

  • Broadband v. cable television

  • Landline v. wireless

  • Portals v. gatekeepers

Practising Law Institute

Dueling doctrine s
Dueling Doctrine(s)

  • Market definition

    • Clayton Act v. “public interest/diversity”

  • Interconnection obligations

    • Essential facilities v. “necessary and impair”

  • Cable broadband unbundling (“open access”)

    • Refusal to deal v. Title II v. Title VI

Practising Law Institute

Relative agency competence


Institutional competence

Competition standard with concrete guidelines

H-S-R Act imposes timing restraint


Record of parties and analysis

Public interest “sliding scale” > Clayton Act

License transfer provides policy leverage/extortion

Relative Agency Competence

Practising Law Institute

Open access and aol tw
Open Access and AOL/TW

  • Neither horizontal nor vertical overlaps

  • Politics makes strange bedfellows

    • Content v. caching v. messaging

    • Impact of City of Portland

    • Limits of “voluntary” commitments

  • Externalities:

    • Broadband build-out; DSL competition

    • AOL overreaching (IM)

Practising Law Institute

Doctrinal conflict


Unilateral refusals to deal permissible

Narrow Section 2 exception for firms with market power

Market definition differentiates video and Internet access


1996 Act not reflect “convergence”

Proponents assume cable has/will have market power

Title II (carrier) v. Title VI (video) v. diversity policies

Doctrinal Conflict

Practising Law Institute


  • Doctrinal instability will continue as agencies and private parties temporize

  • Market definitions still wedded in 20th Century notions

  • Open access raises core conflict between government interventionism and long-term market development

  • Political pressures will only increase!

Practising Law Institute