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AT&T learns from past mistake on DirecTV deal

May 19, 2014

FORTUNE -- When word came down earlier tonight that AT&T (t) had agreed to buy DirecTV (dtv) for around $49 billion, I had only one thought: How much is the regulatory termination fee?

You may recall the last time that AT&T attempted a massive takeover was in 2011, when it offered $39 billion to purchase U.S. wireless carrier T-Mobile from Deutsche Telekom. That deal included a massive $3 billion breakup fee (plus even more in spectrum assets), which AT&T was forced to pay Deutsche Telekom after the deal collapsed under the weight of regulatory scrutiny. AT&T CEO Randall Stephenson would later say the breakup fee was needed in order to convince T-Mobile to effectively take itself off the auction block for a year, adding that "$3 billion optionality of $40 billion in synergies" was "a risk worth taking." A more cynical view is that AT&T just assumed it would pass muster with an Obama Administration that at the time had not blocked any large mergers-- an assumption that obviously backfired.

On the DirecTV deal, however, it seems that AT&T may have learned its lesson.

We don't yet have access to the merger agreement, but sources familiar with the situation say that there is no reverse termination fee in this agreement. In other words, AT&T doesn't have to shell out if, for example, regulators decide to stop the recent wave of mega-TV mergers in their tracks. Or if it decides it would rather buy Dish Network (dish). Or for virtually any flimsy reason.

The only breakup fee apparently would be if DirectTV opted for a superior offer, at which point it would be AT&T receiving money, not shelling out.

So, to sum up: AT&T is offering $10 billion more for DirecTV in 2014 than it offered for T-Mobile in 2011. But it viewed T-Mobile as a much hotter property, offering $3 billion for just the privilege of a merger sub. The only thing worse to DirecTV shareholders than the insult would be if they eventually end up empty-handed...

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