Month: November 2017

Our Modern Thanksgiving Celebrates The End of Slavery, Not Plymouth Rock.

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I have written previously in defense of remembering the First Thanksgiving, and the brief period that followed when the new immigrants and the Massachusetts tribes lived together in mutual respect and tolerance.  As I said then, I believe that ignoring the first 30 years in which the Wampanoag tribes and the original English settlers of Plymouth Colony strove to work together ignores both that a better world was possible and that we can chose to create a better world.

 

But for those who dislike celebrating the First Thanksgiving, I draw your attention to the fact that our modern holiday of Thanksgiving has nothing to do with the First Thanksgiving at Plymouth Colony and is instead the result of Lincoln’s proclamation calling for a Day of Thanksgiving following the Union victory at the Battle of Gettysburg.

 

Gettysburg was the definitive victory of the Union in the Civil War — although that was by no means clear at that time. it marked the high water mark of Confederate military advance and the beginning of consistent Union counter-attack. Ultimately, it was critical to the end of slavery in the United States.

 

For all the failures of Reconstruction, for all that racism and the legacy of slavery persists to this day, there can be no doubt that the victory of the Union over the Confederacy and the end of the institution of slavery in the United States is a cause for which to be thankful. Whether you focus on the slaves who escaped to join the Union army, or the free black volunteers who endured discrimination in the ranks, or simply because our nation survived what Lincoln rightly called the test of whether any nation conceived in Liberty and dedicated to the proposition that all men are created equal, there is much for which to be thankful. It is the counsel of cynicism and bitterness to reject the good — or fail to acknowledge it — because evil and injustice have not been banished from the Earth. For if the defeat of the Confederacy and the end of slavery are not causes for which we should all be thankful, then that word has no meaning.

 

Stay tuned . . .

The DOJ’s Case Against AT&T Is Stronger Than You Think — Again.

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I want to start by applauding Randal Stephenson for coming out quickly and denying the rumors that DoJ asked them to sell CNN as the price of getting the merger done. At the same time, however, he acknowledged that negotiations were “complicated,” and that he and recently confirmed Asst A.G. for Antitrust Makan Delrahim were still “getting to know each other” and “figure out the ask on the other side of the table.” He also made it clear that, if DoJ does challenge, AT&T is prepared to go to court and are confident they will win.

 

AT&T is generally pretty good at persuading everyone that DoJ doesn’t really have a case against them. As folks may recall, despite the fact that the proposed AT&T/T-Mo transaction violated just about every basic tenant of existing antitrust law, AT&T managed to convince everyone for the longest time that DoJ was just playing hardball with them and didn’t really mean it because DoJ didn’t really have a case. While Stephenson refused to discuss what was negotiated, the rumors suggest it was a demand to divest either DIRECTV or the Turner Broadcasting cable channels (which include CNN, as well as TNT, HBO and a bunch of other real popular programming.) Once again, you have antitrust experts who do not have any particular experience with cable mergers shaking their heads and predicting that DoJ has no case.

 

In  fact, demanding divestiture of either the must have content or the DIRECTV distribution platform is precisely the remedy you would expect if you believe the deal presents significant harm because of the vertical integration issues. That’s been the position of my employer, Public Knowledge, which has opposed the transaction since AT&T announced the deal. (That predates Trump’s election, for those of you wondering.) If you want a more detailed understanding of the theory of the harms, you can find it in my boss Gene Kimmelman’s testimony to Congress here. While generally true that vertical deals are hard to challenge, the cable industry has long been something of an exception, and the remedy here is similar to what the FTC imposed on the AT&T/Turner deal in 1996, where the FTC imposed stock divestitures and restructuring to eliminate the voting interest of John Malone and Liberty Media because of Malone/Liberty’s ownership TCI, which was then the largest cable operator in the United States (25% national market share). Given the massive criticism of “behavioral” remedies and a call to return to “structural” remedies from the right and the left, it’s unsurprising that DoJ would want actual divestiture rather than go the Comcast/NBCU consent decree route.

 

But as Stephenson noted, negotiations have only just begun in earnest, so we may end up with behavioral remedies after all. We’ll see.

 

I dig into details below . . . .

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