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AT&T's Stephenson should 'call the DOJ's bluff' on antitrust suit

Here's how AT&T CEO Randall Stephenson can manage DOJ and seal the Time Warner merger, says Jake Novak.
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Peter Larsen | CNBC

Randall Stephenson

Now that the Justice Department has sued to block the $85 billion AT&T-Time Warner merger and AT&T has vowed to fight it in court, we've learned two things for sure:

AT&T doesn't know a real gift when it sees one. And AT&T CEO Randall Stephenson should probably stop talking so much if he doesn't want to bring more scrutiny to the industry and its constantly rising cable bills.

The official reasons the DOJ gave for its decision were that the deal will harm consumers with higher prices and potentially stifle innovation. But the growing suspicion is that President Donald Trump's continuing feud with Time Warner asset CNN is behind the effort to block the deal until AT&T agrees to sell off CNN first.

That suspicion gained some traction today with the news that the Justice Department's new antitrust chief, Mark Delrahim, didn't voice any real objections to this same merger deal a year ago.

Despite that, the administration is denying any singling out of this deal for political reasons connected to CNN. Of course, President Trump himself has done little lately to avoid the appearance of personal anger at the news channel:

Trump cnn tweet

This is where AT&T continues to be missing a major opportunity. If AT&T CEO Randall Stephenson really believes what he said Monday about how the government's move "defies logic," then this move really is about CNN. And selling CNN for a decent price, when the network is riding a relative ratings high, might be easier now than it has been in many years. Potential buyers include Comcast (parent company of CNBC), Verizon, Disney, Bloomberg, Sinclair, CBS, and Hearst. According to Wells Fargo analyst Marci Rykvicker and Reuters Breaking Views, CNN could be worth as much as $10 billion.

CNN's recent rise is very much connected to the Trump presidency and the unique viewer interest in all things connected to this White House. But even if he's re-elected, Donald Trump won't be in office forever. This very well might be a temporary high for CNN and AT&T would be foolish not to consider that, antitrust issues or not.

Of course, those who believe that AT&T caving to real or imagined Trump administration pressure to sell a news channel is a chilling development for the First Amendment have a point. But selling off CNN and having the network silenced are two different things and should be viewed in that less dire context.

AT&T shareholders probably have a different set of priorities. If the merger will otherwise drive prices and profits up for combined AT&T and Time Warner assets, why not call the government's bluff and sell off CNN now and reap those benefits instead?

Many experts believe that feud or no feud, there is something to the official DOJ objection to the AT&T-Time Warner combination. Craig Moffett, founder and analyst with MoffettNathanson, told CNBC Monday that the deal could easily lead to higher prices, especially for customers of Time Warner's HBO networks and programming.

And that's where Stephenson and his public comments come in. The AT&T CEO is treading on thin ice by claiming there's no logic in blocking the deal. He might be right that the DOJ under both parties hasn't blocked similar cable content and service provider mergers in the past. But many consumer groups consider that a problem that needs to be rectified by nixing this deal, not a justification for it. Cable TV subscription prices are going up and have been for a long time in what Consumer Reports calls an "annual tradition." The Consumers Union first noted the correlation of mergers to higher prices back in a 2003 report, and others have followed suit right up to this year with complaints about the repercussions of the Charter-Time Warner Cable deal.

CEOs are usually smart enough to steer clear of playing politics. Perhaps Stephenson believes he'll get some kind of political public relations boost by standing up to an administration that remains under serious fire. But on that level, he has less to gain than he has to lose.

He can still backtrack and avoid a costly legal battle that might end up in more problems for him and the entire industry than just the nixing of one big deal. The last thing AT&T and its peers need is extra scrutiny on costs even as lower cost streaming networks are encouraging more Americans every month to cut the cable cord.

It's been about two weeks since reports first surfaced that the DOJ was pushing back on this merger. So far, neither side is backing down. But only AT&T has the luxury of reversing course and still getting what it really wants. That's a luxury that may not last long as soon as the public gets a better idea of what this deal could cost them.

It's time for AT&T and Stephenson to grab that lifeline and stay silent all the way to the bank.

Commentary by Jake Novak, CNBC.com senior columnist. Follow him on Twitter @jakejakeny.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.

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