By David Goodfriend
August 14, 2017 at 2:55 pm ET
As an attorney and advocate who has fought big cable and telecommunications mergers for the better part of two decades, I cheered the Democrats’ “Better Deal” policy platform, about “cracking down on corporate monopolies.” At no time since Teddy Roosevelt’s Trust Busters have corporate consolidation and market concentration so distorted the American economy at the expense of consumers and workers. Instead of beard-stroking theory or cocktail party musings, we Democrats need some righteous indignation over this state of affairs and Senate Minority Leader Chuck Schumer (D-N.Y.) served it up. Ever the astute tactician, Schumer understands the need for real, tangible, gut-wrenching examples of corporate consolidation hurting regular Americans in order to galvanize the public about why this matters so much to their everyday lives, and why Democrats have a better answer than Trump and his party.
The Better Deal largely focuses on the shortcomings of contemporary antitrust merger review. I am proud that two major transactions I fought against ultimately were rejected by the government — Comcast/Time Warner and AT&T/T-Mobile. Often, however, the government will approve mergers with conditions and it is questionable whether those conditions have any teeth. Industry after industry, in sectors directly impacting Americans’ core needs for food, health, and financial services, has become dominated by an oligopoly of a few firms, largely as a result of mergers and acquisitions approved by the government. I have tried in vain to find good examples of the government hauling merged cable companies, or any other mega-merger behemoth, back into court for failing to live up to the terms of a merger consent decree designed to thwart anti-competitive behavior. The Better Deal proposal would address these shortcomings in antitrust law by strengthening the standard of merger review and requiring regulators to better police post-merger behavior by creating a “21st Century ‘Trust Buster’” to curtail abusive corporate behavior. That is good policy.
Perhaps more important in today’s political climate, however, Schumer and the Democrats drive the point home with tangible, compelling examples of how market concentration hurts Americans: airlines increasing fees and degrading service; cable and telecommunications companies charging higher prices for broadband with worse service than elsewhere in the industrialized world; food, where a few big companies control agriculture; even beer and eyeglasses, where major conglomerates dominate the choices available to shoppers. To a consumer in Wisconsin, Ohio, Michigan or Florida, this hits home.
As Sen. Amy Klobuchar (D-Minn), ranking member of the Senate Antitrust Subcommittee, put it in a speech before the Center for American Progress earlier this year, we need to make antitrust cool again. Part of that requires speaking in terms that Americans can understand and relate to based on their daily struggles to get by. It also requires a new awareness — as Sen. Sheldon Whitehouse (D-R.I.) put it in his recent book, “Captured” — of just how far corporate consolidation of our basic needs like energy and financial services has reached crisis proportions. Middle-class Americans have watched as bills for everything from medicines to cable to groceries climbed, and they aren’t necessarily getting more for the cost. Schumer’s effort to focus Democrats’ attention on these side effects of harmful concentration will have a real, positive impact on the pocketbooks of consumers around the country.
There always will be a few detractors from within our own ranks who grouse about Schumer not doing enough, or doing too much, or not doing it right. There also will be the usual suspects calling for more enforcement in ways that put a thumb on the scales to favor their self-interests, regardless of what impacts Americans’ wallets. This is a waste of valuable time and resources. They need to get out of the way. We are in crisis mode. As just one example, the Trump administration is about to let yet another media mega-merger go through, as Sinclair aims to acquire Tribune to become the largest broadcaster in the United States. A merger like this could wind up costing hardworking Americans more.
The Better Deal will take meaningful steps in modernizing American antitrust to give regulators what they need to do their jobs well in today’s environment. Schumer has pointed in the right direction. Let’s be smart enough to follow his lead.
David Goodfriend is a lawyer in Washington, D.C. specializing in technology, telecommunications, and media policy. He served as deputy staff secretary to President Bill Clinton, media legal advisor to an FCC commissioner, and on the staff of several congressional committees. He co-founded Air America Radio and Sirius-XM’s “Left Jab” and teaches technology policy at The Georgetown University Law Center and the George Washington University Law School.
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