For Want of a Nail: The AT&T – Time Warner Merger

– By Stephen Díaz Gavin

In Poor Richard’s Almanack, Benjamin Franklin included his own version of an old proverb : “For the want of a nail the shoe was lost, For the want of a shoe the horse was lost, For the want of a horse the rider was lost, For the want of a rider the battle was lost, For the want of a battle the kingdom was lost, And all for the want of a horseshoe-nail.” In the case of AT&T’s proposed $85.4 billion purchase of Time Warner Communications, for want of the Federal Communications Commission (“FCC”), the battle might now be lost.

When the merger was announced, AT&T confidently predicted that the deal would get the regulatory “green light”, from the FCC and the Antitrust Division of the U.S. Department of Justice (“DOJ”) portraying the deal as a classic “vertical” merger that removed no competitors from any market. Mindful that AT&T was still smarting from its 2011 failure to convince the FCC to permit its acquisition of T-Mobile in a horizontal merger, AT&T wanted to avoid FCC review, if at all possible.  AT&T and Time Warner maintained this situation was different.  They pointed to the fact that both DOJ and FCC had allowed a large vertical merger to proceed in 2011 when Comcast was permitted to acquire NBC Universal from General Electric.  Just this past February, Time Warner reported to the Securities and Exchange Commission (“SEC”) that it did not plan to transfer any of its licenses to AT&T, so FCC approval would not be necessary. Curiously, few questioned AT&T’s suggestion that there was no role for the FCC because the licenses did not themselves provide service to the public, even though the Communications Act applies to all radio licenses, not just those intended to provide direct service to the public. Apparently a sure thing only weeks ago, the acquisition has  run into significant regulatory difficulties and the DOJ has now raised the prospect that AT&T will have to divest either the Turner Broadcasting unit, which includes CNN and other popular channels, or its DirecTV business.

So what is happening now and why? Consider the political landscape for one. There has been considerable bipartisan political opposition to AT&T’s acquisition of Time Warner. Both leading Republican and Democratic members of Congress have spoken skeptically of the merger. Indeed, despite some relatively benign requirements (not including any divestitures), the DOJ approved the Comcast/NBC Universal merger with no divestiture obligations on Comcast. It is no coincidence that opposition to the Comcast acquisition was largely from programmers and public interest groups, but not, as is the case here, politicians as well.

Comcast and AT&T already control 62.3% of U.S. high-speed internet broadband capacity – significant market power and the capability, as internet service providers, to engage in strategies intended to block competitors. Public interest groups and content providers have again raised the concern that like Comcast before it, AT&T will now itself be a programmer with an incentive for anti-competitive behavior. On the programming side, “competitors” like Google, Video, Facebook and others are dependent on ISPs like Comcast and AT&T to reach users. Some officials at DOJ are also apparently frustrated with AT&T trying to circumvent the regulatory process by creating a sense of “inevitability” around approvals and although behavioral safeguards were imposed in the Comcast/NBC approval, there has been growing concern these have not been successful in preventing abuses.

If the AT&T/Time Warner merger fails, it may well be for want of the FCC’s involvement at the very outset. For many reasons, this entire situation might well have been avoided if AT&T had bit the bullet and sought review by the FCC, along with DOJ. Not doing so, bypasses the public notice and comment procedures and disregards the “safety valve” provided by same public airing of the issues. Although impossible to know at this point, perhaps the public interest emphasis of the FCC might even had taken some pressure off the DOJ to look at more drastic alternatives, such as divestitures of key assets. Instead of the FCC that would have considered imposing “public interest” conditions on the merger, AT&T must now deal with a DOJ Antitrust Division head who believes only in structural remedies, such as divestitures.  We may never know if want of the FCC, like the want of a nail, will cause the battle to be lost, but it increasingly looks that way.

This posting was adapted and extracted from a more detailed Client Alert written by Stephen Díaz Gavin, a Partner in Rimon’s Washington, D.C. office and coordinator of Rimon’s Affiliation with Studio Legale Palmieri in Rome, Italy. You can read the entire alert, entitled “AT&T’s Multibillion Dollar Purchase of Time Warner Might Fail for Not Involving FCC,” and if you need more information, feel free to contact Stephen Díaz Gavin directly. As always, if you need any assistance you can always contact me, Joe Rosenbaum, a Partner at Rimon in New York or any of the lawyers at Rimon with whom you regularly work.

Global Social Media Handbook

I am proud to be among the 22 legal professionals, including 7 of my colleagues at Rimon, who contributed and co-authored a new book entitled Handbook on Global Social Media Law for Business Lawyers, published by ABA Publishing. This comprehensive work, sponsored by the Business Law Section of the American Bar Association, was co-edited by Valerie Surgenor, a partner in the Glasgow, Scotland, law firm MacRoberts LLP and John Isaza, my friend and partner here at Rimon, P.C.   Although principally focused on the United States, there are contributions from foreign lawyers in key regions around the world, including Canada, the European Union, Australia, Russia and Asia.

The Handbook deals with national and international law principles and emerging issues related to social media law, ethics, compliance and governance, including cybersecurity, cyber terrorism and risk management in a social media environment (e.g., hacking, corporate espionage, data loss and data breach); intellectual property issues in social media;  defamation, “fake news” and social media;  implementation of a social media crisis plan; use of social media as a tool in recruitment of employees and the privacy implications to employers;  promotional, endorsement and social media disclosure guidelines promulgated by the Federal Trade Commission in the US; and recent trends in UK and European social media legislation and regulation.  There is a separate chapter that discusses information and records management within the context of social media.

If you are interested, you can order a copy directly from the ABA (Handbook on Global Social Media Law for Business Lawyers) and of course, if you need more information or want to discuss your particular requirements with knowledgeable and experienced professionals, feel free to reach out to me, Joe Rosenbaum, or to any of the lawyers at Rimon with whom you work with regularly.


Legal Bytes – A New Beginning

A long time ago in a galaxy far, far away……  oops, wrong beginning.

Welcome to the new Legal Bytes blog.  As many of you know, my Legal Bytes blog has been dormant after my recent transition to Rimon, P.C..  Getting set up, ensuring smooth transitions for clients, enhancing the look and feel of the blog has taken a longer than I hoped, but hopefully the bugs are out of the system and it’s now up to me to try my best to make the new Legal Bytes blog worth the wait.  For newcomers, buckle your seatbelts – this isn’t your ordinary legal blog!

What happened? Why does it matter? How does or could it affect you?  Inquiring minds always want to know and in the process of trying to answer those questions for you, I will always try to illuminate and perhaps also entertain you.   In the coming months I’ll entice you into regular readership, enlighten you with timely content, addict you with my trivia contests, entice you to keep in touch and most of all, try to help you better understand how developments in the law and regulation may affect you.

I intend to continue Light Bytes, with interesting quotes and sayings that pique my interest and hopefully yours.  Of course, there was never a question about my trivia contests. After all, who else but a lawyer could call it “Useless But Compelling Facts”?  We have once again made arrangements with the International Law Office (ILO) based in London. I am privileged to have been re-appointed as Editor and exclusive content coordinator for their U.S. Media, Marketing, Sports & Entertainment Newsletter.  Although there will be content you will see exclusively in the ILO newsletter, you may also see many of our Legal Bytes articles re-purposed and ‘internationalized’ in collaboration with much appreciated work of the ILO editorial staff.  I am again excited to be working with such a valued organization and truly great people – shout out to Carolyn Boyle, my Editorial contact.

Want to know what’s on my radar for the year ahead – I won’t spoil all the surprises, drone on about drones, nor will I keep my head in the clouds or the crowds.  I am fascinated by the legal implications of the Internet with Things (yes, I replaced ‘Of’ with “With”).  I’m also concerned about cybersecurity and data protection.   I am intrigued by the growing robustness of augmented reality, which means I don’t have to walk around with those funny goggles or a digital scuba mask to experience the virtual world.  Mobile technology is transforming our world – making digital content, e-commerce and communication available to billions of people that had previously never seen a television, had a bank account or used a telephone.  I would be remiss not to mention social media – maturing and increasingly commercialized – further blurring the distinctions between information, entertainment and advertising; between me as an individual and an employee; between me at play and at work; and between my trademarks and my reputation; and between my insatiable desire to tell the world and my seemingly paradoxical concern over my privacy!

It is a brave new world – so much to know and so much to keep up with.

So stay tuned, and as always, thank you for reading.

mHealth – Mobile Health Care

Last year, I was invited to participate in and present a paper at the “mHealth and the Law Workshop” in Washington, D.C. [See mHealth – The Future of Mobile Health Care].

Then last month, I was invited to participate in a panel at the Mobile FirstLook 2015 Conference in New York, and as a result of my participation, the editors of Mobile Marketer asked if they could republish (with attribution of course), the paper.

In case you missed it, you can view “Exploring legal challenges to fulfilling the potential of mHealth” online, or you can download the original from the Legal Bytes posting above.

As always, if you have questions, or need advice or guidance, just contact me, Joe Rosenbaum, or the lawyer with whom you regularly work at Rimon.

Looking Forward to 2015

As we say goodbye to 2014 . . .

For those of you who are loyal readers and followers of Legal Bytes, you know this is the time of year when I break tradition and write a non-legal, personal and philosophical Legal Bytes post. If ancient Babylonians, who celebrated the New Year upon seeing the first new moon after the vernal equinox, could start a tradition that lasted for about 4,000 years – the least I can do is try to keep up. Although my tradition doesn’t date back nearly that far, this post will contain no links to distract you (until the very end when hopefully it won’t be a distraction). Nor will there be any citations to legal doctrine, references or background information. I won’t try to dazzle you with facts or intrigue you with today’s news. This is my opportunity to philosophize and dispense my thoughts and opinions – with absolutely no credentials, qualifications or expertise to do so.

There are two traditions I wish to continue, although I did not originate either one. First, let me take this the opportunity to wish each of you, your families, friends, loved ones and, yes, even an enemy or two, a beautiful and joyous holiday season and a healthy, happy new year, filled with wonder and magic, health and joy, challenge and opportunity, and prosperity and success. Second, as many of you know, for numerous years I have avoided sending out mass mailings of cards and gifts. Not only are they too lost in the seasonal flurry or delayed by the strain on delivery services, but the truth is that most of us don’t really need or want the trinkets that never express the real sense of appreciation or gratitude we might feel for friends and colleagues, families and loved ones, wherever they may be. We might deceive ourselves into believing it “personalizes” the warmth of the season, but after a few weeks they ultimately go into a drawer or the trash bin, or they are relegated to a closet filled with decades of Lucite, or sometimes they are re-gifted. In reality, there is nothing really personal about that process.

As many of you may already know, my second tradition is one I’ve borrowed from an old friend years ago, and which was originally intended to replace the mass cards, emails and impersonal trinkets with a more meaningful gift. Each year, I make a contribution to a charitable organization for all the family members, friends, loved ones, colleagues and acquaintances I want to honor, in memory of those I have lost this past year, and in recognition of those who have given me a reason to celebrate – in all, far too many to list and certainly all more deserving of something better than a card or bottle of wine. In that spirit, as I have done for a number of years, I have made a donation to the St. Jude Children’s Research Hospital – my way of trying to help some children in need who might benefit from the kindness of a stranger. Sometimes, random acts of generosity and kindness can bring surprising results – whether a smile, an unexpected warmth of spirit, or simply knowing it’s not all that difficult to do something to help make the world a better place – even just a little. Try it sometime.

Continue reading “Looking Forward to 2015”

Thank You for 2014 – Best Wishes for 2015

This is the time of year when many of you are celebrating holidays; spending time with family, friends and loved ones; bidding farewell to 2014; and looking forward to the New Year – 2015. A time when many of us pause to reflect on the past year and wonder what the new year will bring. There are people who have touched us and some with whom we’ve gotten closer; some we have missed and many with whom we resolve to try and be better in the new year; and perhaps a few we might like to forget. We remember those who are no longer with us and appreciate that by remembering them, we keep their spirit – all we have learned from them and all they have meant to us – alive. As 2014 comes to an end, we reflect on friendships and experiences, and use the opportunity to thank those who have helped us in tough times, and those with whom we cherish sharing the good times.

For me, it’s a time to resolve to keep doing the good things I’ve done this past year and to be better about trying to do those things I should have done. This time of year gives me an excuse to say thank you and express appreciation to all those who have enriched my life. If you are reading this, you are part of my audience – part of the fabric of my professional life and, like the threads of that fabric, you have helped me weave the patterns and textures you read in these digital pages. I am grateful for your readership and, in some cases, your friendship. I am always appreciative when you take a moment to read and maybe gain some insight, while being a little entertained.

Thank You

Continue reading “Thank You for 2014 – Best Wishes for 2015”

mHealth – The Future of Mobile Health Care

Last month, I had the privilege of being invited to attend and make a presentation at an mHealth and the Law Workshop in Washington, D.C., convened by the American Association for the Advancement of Science, and supported by a grant from the Robert Wood Johnson Foundation. As part my presentation (October 7), I was asked to prepare a brief corresponding paper prognosticating the future of mobile medicine and health care. With permission of the AAAS, I am happy to share that paper with readers of Legal Bytes, and you can read the paper or download a copy for your personal use, right here: mHealth: Looking Forward [PDF].

As always, if you have questions, or need advice or guidance, just contact me, Joe Rosenbaum, or the lawyer with whom you regularly work at Rimon.

What One Lawyer Has Learned About Social Media (But There Are Still 5 Days Left)

Last week I received a novel invitation – call it a ‘dare’ from a long-time colleague and friend in a faraway land. He and I have never actually met, but we have interacted so often professionally and we keep trying to figure out how and when we can end up at the same conference, perhaps even sharing a speaking opportunity or panel so we can finally say ‘Hello’ in person – even split a bottle of wine. The invitation was a novel twist on attracting speakers to a professional conference – specifically the 2014 Webit Global Conference to be held in Istanbul.

Although the agenda was pretty full already, the organizers decided to create some ‘buzz’ by allowing people to vote for a few speaking slots as “Audience Choice” selections. Imagine that, a professional conference with a ‘power to the people’ format. While obviously hoping to increase attendance and excitement for the conference, the balloting is online and you don’t have to be registered to vote.

Now I’m wise enough, with enough experience, to appreciate that a practicing lawyer will NEVER win a popularity contest. I mean seriously – who normally says “I love my lawyer and really want to hear him talk!” I believe this to be true, even if we aren’t charging by the hour!

But I do love a good challenge and I thought it would be a good opportunity to conduct an informal, completely unofficial and invalid experiment. So I sent requests to people I’m connected to on LinkedIn, tweeted on Twitter and provided a link, with ‘Please vote for my presentation’ on my email signature block. Here is what I know and what I learned so far:

1. On this Legal Bytes blog, there have been more than 120,000 visitors, with 76,000 of them unique. So far just this month, there have been more than 2,500 visits. My own contacts – friends, family, professional colleagues, adversaries and people I have met over the years – number well over 6,000. As of this morning, I had 3,677 direct connections on LinkedIn. That means, according to the platform, there are 18,240,386 professionals in my network. That’s more than 18 million people! Eat your heart out Ellen and Ashton! Who’s ‘trending’ now?

2. Although Legal Bytes gets posted on Facebook, I don’t use Facebook otherwise and I only have a little over 480 ‘followers’ on Twitter (most of whom I don’t know), but that may simply be because my tweets, like my Facebook posts, are simply feeds from my blog. Perhaps those other 76,000 people are getting their information here and don’t need to duplicate it on Facebook or Twitter. Further study may be required (not really).

3. If you don’t have a Facebook profile, the organizers won’t let you vote – an interesting condition for a professional conference. Not sure why they didn’t pick a different platform or not require any pre-condition of membership in a network.

4. The organizers apparently won’t let you vote even if you are registered with Facebook, if you don’t have enough ‘friends’ on your profile (a few of my lawyer friends tried to vote and they are just as unpopular as I am). I’m guessing the conference organizers only want people who can spread the word to lots of others.

5. As of this morning I had 92 (yes, 92) votes.  Although I can’t really tell how many total potential speakers entered the contest, I am number 234 and some people have almost 1,000 votes already.

So far, my little experiment has led me to the following observations:

(a) My connections don’t vote, don’t want to vote or are out of the office and will get back to me as soon as they return;
(b) My connections really don’t like lawyers;
(c) My connections either don’t like this lawyer; prefer not to vote for this lawyer; prefer not to vote at all; didn’t qualify to vote (I may ask for a recount); or didn’t like the description.
(d) My thousands, hundreds of thousands and even millions of linked and networked connections don’t mean that much – it’s the people who know me that really count.

Perhaps there are or will be other lessons. After all, there are still 5 days left and if I ultimately end up with more than 18 million votes, I will be forced to admit I was totally wrong about the real power of social networks.

Bot Fraud – Brand New Ways to Protect Your Brand

Next Tuesday, May 13, 2014 at 1 p.m. EDT, the Association of National Advertisers (ANA) will be providing a complimentary webinar entitled:

Bot Fraud: How to Protect Your Company and Brand

Bots—computer-generated, phony website visitors designed to mimic real traffic and trick advertisers into paying for non-human traffic—are a serious problem for digital marketers, causing damage in terms of CPM, revenue, and reputation. As this problem grows more prolific (and the bot technology more sophisticated), it’s imperative for advertisers and marketers to learn how to protect their companies and their brands.

To register and learn more, visit the ANA’s website.

Date and Time: Tuesday, May 13, 2014, 1 p.m. EDT

Bot Fraud: How to Protect Your Company and Your Brand is part of a series of complimentary webinars from the ANA Government Relations group focused on legal and regulatory issues currently affecting the marketing community.

Social & Mobile & Clouds, Oh My!

Joe Rosenbaum recently authored an article that has been published in the Small Business Journal highlighting some of the key issues that have arisen for small to medium-size businesses as a result of the emergence and convergence of these rapidly evolving technological platforms. Joe’s article, “Social & Mobile & Clouds, Oh My!” appears in the March 2014 issue of the Small Business Journal, and you can read “Social & Mobile & Clouds, Oh My!” [PDF] here as well.

If you require legal guidance, support or representation on the issues highlighted in the article, or on any other matters, you can contact Joe directly at; or you should get in touch with the Rimon attorney with whom you regularly work. We are happy to help.