By Jody Godoy
NEW YORK, Dec 12 (Reuters) – Netflix says it must acquire Warner Bros Discovery to compete with YouTube, but antitrust experts doubt regulators will buy that argument.
The streaming giant’s $72 billion takeover of Warner Bros Discovery’s studios and HBO Max will face scrutiny from U.S. and global regulators, given its scale and the combined 428 million subscribers.
Netflix insists the deal is needed to challenge Alphabet’s YouTube, which media analysis firm Nielsen ranks as America’s most-watched TV distributor. But attorneys say the Justice Department is unlikely to see Netflix and YouTube as interchangeable rivals, given their different content, audiences and business models.
“Netflix is trying to say it competes with YouTube because people only watch a certain amount of content a day,” said Abiel Garcia, antitrust partner at Kesselman Brantly Stockinger. “That argument ultimately fails.”
Netflix spends billions of dollars on scripted original movies and series like “Stranger Things” and “KPop Demon Hunters”. It frequently dominates Nielsen’s ranking of most-streamed original series, accounting for eight of the top 10 originals in a recent ranking. Subscribers pay $7.99–$24.99 monthly, while ads remain a small but growing revenue stream.
YouTube, by contrast, thrives on user-generated content and advertising built on music videos, how-to tutorials and influencers. It commands more viewing time than Netflix or traditional TV, powered by creators like MrBeast, with more than 450 million subscribers, top recording artists and children’s hits like Cocomelon.
In October, YouTube held 12.9% of streaming viewership, compared with Netflix’s projected 9% share once combined with HBO Max post-merger.
REGULATORS WILL KNOW THE DIFFERENCE
The DOJ is not likely to view those videos as a substitute for Netflix shows and movies, experts said.
“Netflix is going to have a difficult time making arguments that YouTube is substitutable for the kind of content that’s on HBO Max and Netflix,” said Robin Crauthers, a partner at McCarter & English and former DOJ antitrust attorney.
While companies often seek to defend their mergers by pointing to competition from a broad universe of established and emerging players, antitrust enforcers are experienced in finding the ways that mergers quash competition in distinct sub-markets.
For example, the Federal Trade Commission convinced a court that Whole Foods Market’s acquisition of rival Wild Oats Markets reduced competition among “premium natural and organic supermarkets,” despite Whole Foods’ argument that it competes with conventional grocery chains.
The FTC also successfully challenged the merger between U.S. handbag and accessories maker Tapestry and rival Capri as decreasing competition in the “accessible luxury” market.
The judge who blocked the Tapestry deal relied on documents showing the companies themselves thought of accessible or affordable luxury as a valid category, contradicting their argument at trial that affordable luxury was not a well-defined part of the industry.
NETFLIX FACES DOCUMENT SCRUTINY
Because of recent reforms to the merger clearance process, Netflix will have to hand over more of its internal competition analyses sooner, said former FTC antitrust attorney Shaoul Sussman.
“That will definitely give the government a leg up in the investigation,” said Sussman, of the law firm Simonsen Sussman.
If Netflix’s documents do not cite YouTube as a major competitor, or if they focus on categories that exclude YouTube, such as paid subscriptions, that will undermine the company’s argument, attorneys said.
Netflix has also pitched the deal as bringing down prices for the vast majority of HBO Max subscribers, who are already Netflix customers, by allowing the company to bundle the two products, Reuters reported last week.
But the DOJ is very skeptical of claims that mergers bring cost savings that will find their way back to consumers, Crauthers said, and will also consider whether the deal would allow Netflix to raise prices on subscribers who do not take both services.
(Reporting by Jody Godoy in New York and Dawn Chmielewski in Los Angeles; Editing by Chris Sanders and Nia Williams)
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