As showbiz scales up to battle Big Tech, Makan Delrahim, the nation's top antitrust regulator (and a former movie producer), is becoming as influential as any mogul over Netflix, Megamergers, the Writers Guild and maybe the entire future of the entertainment business.
One day last spring, Makan Delrahim was checking in on the day's news when a story about the Oscars caught his eye. Steven Spielberg was said to be pushing the film Academy to ban from eligibility any movie that premiered on a streaming service rather than in theaters. At the time, Netflix had just won three awards for Alfonso Cuarón's Roma, and the company was forced to defend its Oscars.
That seemed unfair to Delrahim, 50, who in addition to leading the U.S. Department of Justice's powerful Antitrust Division also happens to be a former movie producer. He says nobody associated with the streaming giant pressured him; he simply felt compelled to do something, so he fired off a letter to Academy CEO Dawn Hudson and warned her that the discussed restriction could amount to a violation of Section 1 of the Sherman Act, which prohibits "collusive" agreements aimed at suppressing competition. Delrahim didn't specify how Oscars eligibility would interfere with the marketplace for movies, although it was fairly clear that he saw Spielberg's effort as part of a plot with greater significance.
"I wanted to ensure that a group of the establishment incumbents didn't force changes to those rules to disadvantage potential new distribution models that would harm consumers or filmmakers," says Delrahim, speaking in his office at DOJ headquarters in Washington, adding that he was satisfied with the Academy's response. "Ultimately they kept the existing rules and did not change them to disadvantage Netflix and Amazon or other streaming services. I basically wanted to remind them that the antitrust laws could apply."
As the entertainment industry races to scale itself up to compete with Big Tech, and as Apple, Google and Jeff Bezos' Amazon spend increasingly large sums on premium content, Delrahim has become as potent a business gatekeeper in Washington as anyone not named Donald Trump. He's refereeing mammoth mergers, including the $105 billion tie-up between AT&T and Time Warner, and Walt Disney Co.'s $71 billion acquisition of most of 21st Century Fox. He's reevaluating licensing rules that have governed the movie and music businesses for nearly three-quarters of a century. He's even taken an interest in the Writers Guild's nasty fight with talent agencies. Perhaps more than anyone in the Trump administration, his perspective about what's considered anticompetitive (or not) at a transformational moment will shape the future of the content industry.
Any conversation with Delrahim will include a lot about Netflix. Given its meteoric growth, that's no surprise. But the company also represents something more to Delrahim, who for a short time dabbled in film and TV production. He cites Netflix repeatedly when explaining his views on entertainment and the recent flurry of moves by the DOJ's Antitrust Division.
For instance, when Delrahim defends his office's unsuccessful challenge to AT&T-Time Warner, he cites testimony from executives such as Time Warner's Jeff Bewkes, who said that they needed to marry digital distribution with content to glean insights from viewing data and better understand customers in order to stay competitive. "They argued that they needed to be vertically integrated to reach consumers. I don't know if that was correct," says Delrahim. "[Time Warner's] HBO certainly had a [streaming video] product already. Also, Netflix didn't need to own a phone company or satellite company to compete."
Netflix also comes up when Delrahim addresses Disney's recent box office dominance. The company boasted eight of the top 10 performing movies in 2019 and captured 40 percent of domestic market share, yet the DOJ's Antitrust Office swiftly approved its purchase of Fox from Rupert Murdoch. In Delrahim's view, Disney's box office dominance speaks less to the company's aggressive acquisitions (including Marvel, Pixar and Lucasfilm) and more to one studio simply enjoying a winning streak after correctly identifying the pulse of the market.
"They should not be punished for making good movies," says Delrahim. "If I did that, I could see [Disney CEO] Bob Iger sitting there saying, 'Wait a minute, we're too successful, guys. Let's not make this next animated film so good.' That's not what antitrust is for. So they own a lot of property and did some brilliant transactions in acquiring them, but there's no guarantee that next year they will also be great, unless they put the effort into it. Any other content creator [can do it]. Again, Netflix. What did they pay for The Irishman?"
That would be $160 million, but chances are Delrahim already knows that figure. It's rare for an influential government official to follow the minutiae of the entertainment business, but Delrahim is conversant in showbiz news. It's his informed view of the shifting marketplace — a dynamic one where big isn't inherently bad — that also paved the way for the DOJ's huge recent move to seek the end of the Paramount Consent Decrees, the rules that have governed the relationship between studio distributors and theatrical exhibitors for decades. Those standards came about after the government in the 1940s fought for a place for independents amid corporate tie-ups between studios and theaters, as well as restrictive license agreements. After a landmark Supreme Court ruling, studios were forced to divest their theaters and eschew "block booking" (bundling multiple films into one theater license) and "circuit dealing" (licensing a film en masse to all movie theaters under common ownership, as opposed to licensing on a theater-by-theater basis). Now, to the chagrin of many in the exhibition community, the DOJ seeks a judge's approval to sunset those banned practices. Says Delrahim, "There's no reason why antiquated rules from 70 years ago should prevent new business models from existing today."
As Hollywood reckons with potentially sweeping changes at its doorstep, just what kind of regulator is Delrahim? Has the landscape fundamentally shifted as he seems to think? Would the Trump administration, which is already investigating Facebook, Google and other technology companies, ever tolerate a tech giant like Apple or even Netflix swallowing a traditional studio? And how else is the DOJ primed to intervene in Hollywood's affairs? Like many things in Trump World, the answers to these questions get a little messy.
Delrahim's journey to his seat of power begins in Iran, where he was born and where, at age 10, his Jewish family escaped as the shah was toppled by Islamic revolutionaries. He says the experience taught him the value of a government respecting independent thought.
Settling in Los Angeles, Delrahim became acquainted with entrepreneurship by pumping fuel for customers at his father's gas station. After attending UCLA and law school at George Washington University, he worked a quick stint at a politically connected white-shoe law firm, Patton Boggs, before joining Sen. Orrin Hatch (R-Utah), who was then the influential chairman of the Judiciary Committee. It was under Hatch's tutelage, and later at the DOJ, where Delrahim found his calling — working on both antitrust issues as well as intellectual property policy. In 2005, he returned to private practice in L.A., where he advocated on behalf of tech companies including Apple, Google and Qualcomm.
At the same time, Delrahim began dabbling in entertainment. In 2016, he executive produced a horror-comedy film starring Adrian Grenier called Trash Fire, which premiered at Sundance. Working with reality TV powerhouse Pilgrim Films (American Chopper, Ghost Hunter), Delrahim created a pilot for a series about wrongfully convicted individuals. No network picked it up. Delrahim also became a board member for World Poker Tour.
He dates his interest in showbiz to his time working for Hatch. After gaining exposure to DNA legislation and problems in the criminal justice system, he thought it would make for a good documentary. In fact, he credits himself — probably jokingly, though it's hard to tell when Delrahim is attempting humor — with developing the concept for Making a Murderer before that doc miniseries (on Netflix, of course) came along. "It's rare to work with a true Renaissance man,” says Pilgrim CEO Craig Piligian. “He brought a lot to the table. We pursued the idea even after he divested himself [after taking a job in the Trump Administration.]"
Those who practice law in antitrust circles say Delrahim is highly intelligent, charismatic and knows everyone who matters. "I disagree 100 percent on what he is doing on patents, and I believe many consent decrees on the books still make sense," says Rutgers law professor Michael Carrier. "But personally, I like him." Adds Richard Hamilton, a partner at Ulmer & Berne who spent two decades in the DOJ's Antitrust Division, "He's a smart guy, a shrewd guy. He's responsive to public discourse and he's practical."
He's also proved to be quite opportunistic. On March 9, 2016, when it was still not clear that Donald Trump would win the Republican nomination for president, Delrahim endorsed Trump in a New York Post column. “Key Republicans say they won’t back Donald Trump if he’s the GOP nominee,” began Delrahim’s column. “That may make them feel good — and seem principled. But from a practical standpoint, it makes no sense. Not when the next president will choose one or possibly more justices for the Supreme Court.”
The move ended up being rewarded. After Trump took office, Delrahim moved his wife and three kids to D.C. to work in the White House counsel's office, where he helped shepherd Neil Gorsuch's successful Supreme Court nomination. In March 2017, Trump nominated him as the nation's top antitrust enforcer; the Senate approved his appointment six months later.
These days, there are two schools of thought on what antitrust regulators should be doing. The first is a conservative approach where "consumer welfare" is the paramount consideration. Heavily indebted to the work of Richard Posner, Robert Bork and the so-called Chicago School, this approach emphasizes high output, low prices and, in general, efficiencies in the marketplace. It's less concerned with ensuring the wide distribution of wealth. It also tends to tolerate consolidation but not naked price fixing.
The second school is a liberal regulatory approach more concerned with the harm incurred when corporations amass too much power. Under this view, markets are fragile, and smaller businesses deserve greater protection from well-protected oligopolies. In the view of Lina Khan and other scholars in the "New Brandeis School" (named for Supreme Court Justice Louis Brandeis, who once took on industrial magnates like John D. Rockefeller), monopoly laws have been diminished, and what society needs is old-fashioned trust-busting, plus greater attention to predatory pricing, open access to critical infrastructure and healthy labor markets.
Although Delrahim is closer in ideology to the first school than the second, the truth is that he fits neither rubric neatly. On one hand, he supports the consumer welfare standard. In a June 2018 speech, he connected his parents' emigration from Iran to the dangers of allowing antitrust enforcement to deliberate on what is good and bad for democracy and society at large, adding that "by giving us focus, the consumer welfare standard reduces the risk of what Brandeis called 'dangers to liberty' from well-meaning enforcers." On the other hand, this November at Harvard, where he signaled his office would take a hard look at Big Tech, he said regulators should look beyond what people are paying for products when weighing what companies are doing in the marketplace. Consumer welfare, he noted, could also incorporate "consumer choice, quality and innovation."
This flexibility invites attacks from both conservative and liberal thinkers and makes it difficult to determine how Delrahim would approach any proposed deal. Take, for example, the DOJ's challenge to AT&T-Time Warner, the first time in decades that the government had sought to block a so-called "vertical" merger of companies with complementary, rather than similar, businesses.
The right criticized him for wandering from the free market dogma once outlined by Bork. In a National Review column, George Mason University Antonin Scalia Law School professor Joshua Wright wrote, “The merging parties do not compete with one another by selling substitute products to consumers, but rather offer complements within the same chain of distribution. Time Warner creates television content, while AT&T distributes such content through its various services. The DOJ’s complaint articulates a dubious theory of harm and fails to articulate points fundamental to economically grounded theories of harm.”
And on the left, observers were also unimpressed by the DOJ’s theory on why the merger deserved to be blocked. Except in their view, the DOJ was too reliant on economic models and was forfeiting an opportunity for a stronger swipe. “The case could have centered on what Congress really cared about: competition, concentration and the direction of the industry,” wrote Tim Wu in a New York Times column. “Was the likely effect of the merger to diminish the level of competition in the media industries?... In vain pursuit of numerical certainty about the monthly cost of pay TV service, the ruling never really came to address this broader question.”
Delrahim becomes defensive when questioned about the DOJ’s approach in the case.
“If there was evidence to show the lessening of innovation, we’d have presented that,” he says testily. “But because case law is not as plentiful with respect to those areas, it would have been an even greater challenge to bring a case relying on merger theories that we didn’t have the evidence developed to support.”
The AT&T-Time Warner case also provided fodder for Delrahim critics who say he lets political calculation and personal ambition guide his decision-making. The Justice Department is supposed to operate independently from the president, yet nearly everyone traced his decision to challenge the merger to Trump's displeasure with Time Warner unit CNN and its leader Jeff Zucker. Even after Delrahim denied the claims in a sworn declaration, the suspicion among many in the legal community remains that Delrahim earned his promotion by committing to challenge AT&T's acquisition in his job interview.
In addition, the Antitrust Division has in recent months raised eyebrows about politicization of competition law. During the trial of a multistate challenge to the proposed T-Mobile/Sprint merger, which federal regulators approved, text messages emerged that showed Delrahim laboring behind the scenes during the government's review last summer to save a deal that would shrink competitors in the wireless arena, helping to arrange the sale of the two companies' mobile spectrum to a third party, Dish Network, and offering its chairman, Charlie Ergen, advice on how to lobby the FCC and lawmakers. "Why Is the Justice Department Treating T-Mobile Like a Client?" asked a New York Times editorial in December. (On Tuesday, a judge rejected the states' antitrust challenge and approved T-Mobile's Sprint acquisition.)
One observer, suggesting that Delrahim has been using his office to advance personal ambitions, brings up the T-Mobile case and points to how the Antitrust Division has been filing amicus briefs in cases involving Delrahim's former corporate clients. In an important appeal over whether Qualcomm must grant patent licenses to rival chip suppliers, for instance, the DOJ took the side of Delrahim's former top client over the FTC, the other primary antitrust regulator. The Antitrust Division also expressed views favorable to Comcast, another former Delrahim client, about the limited circumstances where a refusal to deal is actionable, in Viamedia's $75 million antitrust lawsuit against the cable giant over advertising spot sales.
Then there's the DOJ's recent intervention in civil litigation between Hollywood's top talent agencies and the Writers Guild of America. In December, the Antitrust Division not only filed a statement of interest in the case, expressing its view that labor exemptions to antitrust laws should be narrowly applied, but the government also took the rare step of asking for time during a hearing in Los Angeles to argue against the WGA's motion to dismiss. One thing not discussed at the time: One of Delrahim's former clients was Zuffa, former parent company of MMA outfit UFC, which sold a majority stake to Endeavor, the parent of the WME agency, for $4 billion in 2016. (Delrahim says the DOJ monitors all private antitrust lawsuits. He did, however, recuse himself in early February from an investigation into Google after criticism about a conflict with his former client.)
Of course, it's not surprising that a Republican-led DOJ would seize an opportunity to thumb its nose at unions. And Delrahim's office has taken on many causes of late with a political tenor — including opening an inquiry into California's deal with automakers to reduce emissions in the wake of the Trump administration's rollback of climate change regulations. (That probe was dropped this past week.)
Regardless of what all of this says about Delrahim's ideology or motivations, it certainly speaks volumes about his assertiveness. "If you say that I'm more active in some enforcement initiatives than some other past antitrust enforcers, it may well be the case," he acknowledges.
Indeed, the days of sleepy antitrust law where dueling economists slug over the price effects of transactions in the marketplace appear to be finished. The DOJ has just asked for a 71 percent increase in funding for the Antitrust Division at a time when the Trump Administration is proposing budgetary slashes across government. Although regulators haven't made a splashy move like attempting to break up Facebook, they have been investigating tech companies since July, and Delrahim has in recent weeks been privately telling interested observers to expect a criminal antitrust case in Silicon Valley sometime in the next few months. On the other side of the aisle, anyone who has listened to Sen. Elizabeth Warren's speeches knows that competition regulation figures to be a key focus in a more liberal administration. But, of course, the color of that regulation certainly could shift swiftly.
Hollywood is watching closely because more mergers likely are coming. As new streamers like Disney+, AT&T's HBO Max, AppleTV+ and, soon, Comcast's Peacock seek to scale swiftly to compete with Netflix and Amazon Prime, speculation is rife that mid-major studios like Lionsgate, MGM or even Sony Pictures or ViacomCBS will soon be acquired by larger players. This has sparked concerns in the talent community because fewer studios could translate into suppressed wages. A possible WGA strike this summer could hinge in part on these issues. For years, Hollywood labor unions have voiced concerns that antitrust regulators have put consumer welfare above a more comprehensive look at marketplace structure. At the dawn of the streaming wars, some creatives might even be searching for something akin to the old "fin-syn" regime, the pre-Reagan administration rules that forbade networks from retaining financial interests in programs they aired. Many recent Hollywood accounting lawsuits — and even the WGA's ongoing battle with talent agencies over their ownership stakes in content — speak to discomfort with the close alignment of the industry's power brokers.
So what would the DOJ do in the face of another huge proposed merger in the entertainment space? Delrahim is careful about hypotheticals given his office's future role in the review, but Laura Blum-Smith, director of research and public policy at the WGA, worries that regulators aren't prepared to put their foot down. She points to the swift approval of the Disney-Fox merger and an important Jan. 10 document issued by the DOJ. "Given the opportunity to revise its guidance on vertical mergers, they are giving deference to the notion that vertical mergers can be pro-competitive," she says. "We've amassed so much evidence of the negative impacts from mergers … I think it's disappointing."
But other observers say not so fast. Hamilton, for one, believes that a merger like Apple-Disney would have "sailed through five or 10 years ago," but after watching the DOJ stand up to AT&T-Time Warner and hearing Delrahim's recent speeches, he's not sure anymore. "With the new kind of comprehensive view on the consumer welfare model — not just price, but also innovation and quality of services — that's a harder thing to put your thumb on," he says.
Beyond M&A, the entertainment market could be in for more jolts to the status quo thanks to the deregulatory agenda of Delrahim's office. The National Association of Theatre Owners, which represents owners of 33,000 movie screens in the U.S., is sounding the alarm at the move to terminate the Paramount Consent Decrees. In particular, NATO is concerned about block booking and the prospect that studios will use their leverage to force theaters to accept packages of films, including undesirable ones. "If exhibitors were forced to book out the vast majority of their screens on major studio films for most of the year, this would leave little to no room for important films from smaller studios," NATO told the DOJ.
Delrahim, though, would prefer to see the free market sort this out, and he leans into the possible benefits of fewer rules. For instance, he imagines that Disney could bundle its animation library and work with theaters to screen classics 24/7 with consumers able to purchase a MoviePass-type subscription to family-friendly fare. As to how consumers might be able to enjoy critically acclaimed content if Disney controls most theaters, Delrahim says: "You could give consumers a tentpole movie to watch — let's say Avatar — but also have a less advertised independent, such as The Hurt Locker, and say if you watch this [Avatar], you'll also get a free ticket to go watch Hurt Locker on Wednesday night. That practice would be arguably prohibited by the Consent Decrees."
If there's one other big thing to know about Delrahim's approach to competition, it's that he's a strong believer in the rights of intellectual property owners to exploit it how they wish. Some like Carrier even consider him to be a “radical” when it comes to the subject. Given that copyrights, trademarks and patents are essentially government-sanctioned monopolies, the interplay between IP and antitrust has long been a topic of debate.
That will come into acute focus in the next few months as Delrahim's group wraps up a review of the ASCAP and BMI Consent Decrees. Under these decades-old music licensing rules, the two largest organizations that administer the performance rights of many songwriters and music publishers must offer a blanket license to their repertory of works upon request. If terms can't be agreed upon, music users immediately get access, and a federal court later decides a fair price.
Ending these rules — or even modifying them — would kick up a litigation and lobbying firestorm. Changes would impact mom-and-pop bars, restaurants, sports stadiums and funeral homes — basically anyone who airs music over loudspeakers. The broadcast industry also cares greatly about this subject; TV and radio owners say they don't have practical control over which music airs on their stations. Programs are often licensed from third parties; broadcasters have limited say about the content of advertisements; and anything can happen during the telecast of a live event. Modifying the ASCAP and BMI Consent Decrees could raise costs and uncertainties.
Delrahim cautions that the move to end the Paramount Consent Decrees signals nothing about the future of ASCAP and BMI, but there's a host of reasons to think he's at least ideologically predisposed to reining in the old music licensing rules, too. "Are those consent decrees actually serving in an anticompetitive manner to prevent new innovation or new licensing?" he asked rhetorically at a Senate Judiciary Hearing in September.
Should the DOJ move to stir up music licensing, might broadcasters challenge the government in court or sue ASCAP and BMI with fresh antitrust claims? Coordinating efforts (at least blatantly) to stand up to licensing demands is probably out of the question. In December, Delrahim's Antitrust Division expressed its view on the subject in a statement of interest filed in federal court in an antitrust fight between Irving Azoff's Global Music Rights (a new competitor to ASCAP and BMI) and the Radio Music License Committee, which represents some 10,000 radio stations. Supporting GMR, the government said that price fixing by a cartel of buyers in any market is as "pernicious" as when sellers do it.
If music is murky, Delrahim is willing to speak bluntly about a different licensing situation — 2019's decision by the major theater chains to shut out Martin Scorsese's The Irishman after Netflix refused to agree to anything beyond a short theatrical run. Could the subject of Netflix and movie theater windows trigger a new antitrust review?
"That's an independent decision by the theaters, I assume," Delrahim says. "Look, if the theaters agreed amongst themselves to keep a movie out, that would be a violation of antitrust law. But if they independently, which is what I suspect, decided not to do that because they didn't want to later create the precedent to shorten the window, that is purely a business decision by them. It's not my job to pick winners and losers."
A version of this story first appeared in the Feb. 12 issue of The Hollywood Reporter magazine. Click here to subscribe.