The oral arguments took nearly a full hour longer than originally scheduled, with judges encouraging attorneys to keep talking even when they reached their time limits.
At a hearing in the D.C. Circuit Court of Appeals, Judges Judith W. Rogers, Robert L. Wilkins and David B. Sentelle grilled the Justice Department’s attorneys about their contention that the original decision was incorrect.
The Justice Department has claimed in its appeal that Leon committed “fundamental errors of economic logic and reasoning” in his decision and “discarded the economics of bargaining.”
The appellate judges expressed skepticism of the government’s theory that AT&T and Time Warner would have increased leverage over competitors as a merged company because it could threaten to blackout its content — like CNN, TNT and TBS — and gain new customers for its own platforms, like DirecTV, as a result.
Judge Rogers, a Clinton appointee, said that the “dramatic change in the last five years” of the media landscape supports the District Court’s opinion that the combined AT&T and Time Warner wouldn’t want to blackout its content on other distributors because it would want to maximize distribution, an argument AT&T made during trial.
Judge Wilkins, an Obama appointee, pointed out that an arbitration agreement offered by Turner that would protect distributors from blackouts helps take care of that concern. “You said the district court clearly errs because the blackout threat wouldn’t change…but yet in…