March 01, 2012 - ET

"Antitrust in Media & Entertainment: The Fine Line between Survival and Monopoly" for NARM, the National Association of Recording Merchandisers

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As media companies restructure and collaborate in response to economic and digital challenges, antitrust concerns must always be considered. This panel will discuss antitrust issues in the context of recent transactions in the media and entertainment industries that have, or likely will, undergo regulatory scrutiny.

The most recent of these transactions was the sale of EMI’s recording and publishing businesses to major record labels Universal and Sony/ATV, reducing the number of major U.S. record labels to only three. It is unclear whether such a deal, giving Universal a 36% market share, will pass regulatory scrutiny by the Department of Justice or the European Commission. Although media companies have a strong argument that the shifting digital landscape has left them with less control over the distribution andpricing of their content, any company would have a difficult time launching a music service without the Universal/EMI catalog.

Another recent merger that tested the boundaries of anti-competitive behavior in entertainment was the merger between Ticketmaster and Live Nation. The merger was approved, but not without significant changes to the proposed structure of the deal. In order to protect competition in the primary ticketing business, the DOJ required that Ticketmaster license its ticketing software to competitors, divest itself of certain ticketing assets and agree to anti-retaliation provisions. These remedies remain controversial.

In the context of competitive access to content distribution channels, competition agencies have and will continue to monitor mergers and joint ventures that allow simultaneous control of content creation and distribution. Cable company Comcast recently won approval for its acquisition of certain divisions of content creator, NBC Universal, but with on-going oversight by the court. Services that distribute TV content online will also be watched closely. Major media companies have collaborated to launch services like Hulu and TV Anywhere. After concerns about exclusive distribution deals with the studios and networks that own the platform, these services are now making efforts to expand their pool of content providers.

The speakers on this panel include Venable’s Robert P. Davis (former Attorney-Advisor to Chairman Leibowitz at the Federal Trade Commission), members of Citibank’s anti-trust counsel for the sale of EMI, and one of the economists who helped Live Nation achieve DOJ clearance. They will discuss the outcome of the anti-trust reviews in which they participated, how regulators view competition in a digital world with a multitude of platforms from which consumers can access content, as well as the challenging balance between cooperative efforts to reinvent digital business models and avoiding anti-competitive behavior.

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