AT&T-DirecTV merger: Heavy regulatory scrutiny ahead

“We have seen waves of mergers transform industries, time and time again,” said Jeff Kagan, a longtime independent analyst covering the wireless and telecom industries. “They seem to come in waves. There are quite a number of mergers, then nothing for several years. Then it starts again. Comcast with Time Warner Cable and AT&T with DirecTV look like they are trying to start this next wave of mergers.”

The two recent mega-deals have certainly caught the eye of the nation’s lawmakers. “The proposed AT&T and DirecTV merger would be the fourth-largest telecommunications merger in history,” four top House Judiciary Committee members said in a statement. “The committee has a strong record of reviewing proposed transactions that could have a significant impact on consumers and the competitive marketplace.”

Senate Judiciary Committee chairman Patrick J. Leahy (D-Vt.) also issued a statement that his committee will closely scrutinize the deal. “With this latest proposed merger, I am concerned that the telecommunications marketplace is trending even further toward one that favors big companies over consumers,” Leahy said.

A tie-up between AT&T and DirecTV could be especially beneficial to DirecTV, which was founded 24 years ago and in that time has seen meteoric growth. At its peak, the company was the second-largest pay TV operator in the country, but it has recently seen growth slow considerably. Last August, DirecTV experienced its second-ever quarterly loss of U.S. subscribers. One reason attributed to the decline: Increased cable bundling options that offer phone, Internet, and television services in one package.

MORE: Can Netflix kill cable TV if it’s part of it?

Since January 2009, DirecTV has partnered with AT&T to provide those other services — which makes the proposed merger all the more attractive for both parties.

“DirecTV is a completely different system to AT&T,” said Colin Dixon, founder and principal analyst at nScreenMedia. “There isn’t the same synergy that Comcast and Time Warner Cable have because DirecTV can’t provide phone or Internet. But AT&T is also trying to use this in negotiations with content providers. The bigger these companies are the better deal [from the content producers] they’re likely to get.”

Operators are aware of the evolution in how consumers view pay TV, Dixon said. As they grow in size, they have greater leverage to nudge content providers to strike a more flexible deal.

“The bigger you are the more likely you are to have greater influence over the content providers,” Dixon told Fortune. “However, that won’t trickle down to the cable subscriber. Content is going up faster than pay TV subscriptions, and the margins are already being squeezed, so scale helps reduce that squeeze a bit.”

Though AT&T sees some upside in the proposed deal — it has an established marketing relationship with DirecTV; where its U-Verse service isn’t available, the company promotes video services from DirecTV — there are technology challenges: The services’ current set-top boxes can’t communicate with each other.

“For AT&T there is a tremendous upside,” said Erik Brannon, analyst for U.S. cable networks, at IHS Technology. “If they own DirecTV they also wouldn’t have to do the revenue sharing, but otherwise could probably do the same thing they are doing now by offering DirecTV as an option to consumers in the short term.”

MORE: Broadcasters, advertisers watch Aereo case closely

Could the AT&T-DirecTV deal create a pay-TV behemoth larger than Comcast and Time Warner Cable? Brannon says yes, because DirecTV could woo back lost subscribers under new ownership.

“After all transactions are said and done, Comcast would be somewhere around 27 million [paid subscribers],” he said. “It won’t happen until after 2018 but if the merger goes through a combined AT&T and DirecTV could be larger than Comcast [in terms of subscribers], as the AT&T is strong on premium offerings while DirecTV is much stronger with sports packages. Such a merger could be very complementary. It is possible that AT&T could transition some customers from satellite to U-Verse.”

In 2002, federal regulators halted a proposed merger between the parent companies of DirecTV and its smaller rival DISH Networks (DISH) because the union would create a monopoly in rural areas and reduce choice everywhere else. The AT&T-DirecTV deal will not likely suffer the same fate, Brannon said, because the services do not generally compete in the same market.

“The companies are complementary in that regard,” Brannon said. “It is the same with Comcast and Time Warner Cable. The footprints don’t overlap so there isn’t really competition that is going to go away.”

The existence of two major national pay-TV providers could actually benefit the consumer in the short term, Brannon said. In the long term, it could mean less choice.

“Acquiring Time Warner Cable would increase Comcast’s market area and make them closer to a national provider,” Kagan said. “Acquiring DirecTV would let AT&T compete on a national scale for satellite television. Regulators have to make sure there is still competition; however competition can change as well. Competition could mean Comcast versus AT&T in more markets. Competition could mean even more competitors competing in the same space. Competition creates more innovation and lower prices. This is good for the consumer.”

MORE: What happens if broadcasters lose the Aereo case?

While Congress is likely to hold hearings into the matter, legislators have limited ability to sway approvals. Instead, the companies face scrutiny from the Justice Department and the Federal Communications Commission, both which must sign off on the deal.

“Cable style video has been in decline in recent years,” Christopher S. Yoo, professor of Law, Communication, and Computer and Information Science at the University of Pennsylvania Law School, said. “AT&T is the fastest growing video provider right now, and they do overlap with DirecTV. That means this deal could face greater scrutiny. Comcast and Time Warner raised fewer concerns because they’re not in the same market.”

Which means that AT&T-DirecTV is likely not the last merger in the pay-TV space.

“You’ll probably see consolidation in the cable markets especially among the smaller players,” Dixon said. “Without such mergers the tier two and tier three pay-TV services will find it increasingly difficult to make a deal for content. But we’re really headed to a world with four or five major carriers. This is typical of a business that is mature and is potentially on the downswing.”