U.S. Reps Raise Concerns That Disney, Fox, WBD Sports Streaming Venture Will Be Anticompetitive

The Disney/ESPN, Fox Corp. and Warner Bros. Discovery sports-streaming joint venture has drawn congressional scrutiny.

In a letter sent Tuesday (April 16) to the CEOs of the three companies, Rep. Jerrold Nadler (D.-NY), the ranking member of the House Judiciary Committee, and Rep. Joaquin Castro (D.-Texas) requested answers about the competitive implications of the proposed sports streaming JV.

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“As programmers, your companies exert tremendous influence over pricing across the live sports TV ecosystem,” Nadler and Castro wrote in the letter to Disney’s Bob Iger, Fox’s Lachlan Murdoch and Warner Bros. Discovery’s David Zaslav.

The three companies’ joint venture, the letter continued, “raises questions about how this new offering would affect access, competition and choice in the sports streaming market. Without more complete information about the pricing, intent, and organization of this new venture, we are concerned that this consolidation will result in higher prices for consumers and less fair licensing terms for upstream sports leagues and downstream video distributors.”

The reps requested answers by April 30. Among their list of 19 questions: “Will the Joint Venture Partners implement provisions to prevent anticompetitive sharing of pricing or other competitively sensitive information among each other?”

A Fox Corp. spokesman declined to comment. Reps for Disney and WBD did not immediately respond to requests for comment.

Disney, Fox and WBD unveiled their partnership in February and said they expected to debut their sports-streaming bundle in the fall of 2024. The joint venture will pool ESPN+ and the companies’ linear TV networks that carry sports programming (ABC, ESPN, ESPN2, ESPNU, SECN, ACCN, ESPNews, Fox, FS1, FS2, Big Ten Network, TNT, TBS and truTV). Pricing hasn’t been announced. Some have dubbed the JV “Spulu,” a portmanteau of “sports” and “Hulu” (which originally was a joint venture among broadcasters). Notably, the JV excludes NBCUniversal and Paramount Global/CBS.

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The Justice Department reportedly has been planning to review the Disney-Fox-WBD venture over possible consumer harms, per Bloomberg. In addition, internet pay-TV provider Fubo filed a federal lawsuit seeking to block the JV service’s launch, alleging the venture violates antitrust laws.

Earlier this month Disney CEO Bob Iger said the JV is proceeding on the belief that it will clear regulatory scrutiny. “We think it’s actually a sports fan’s delight in terms of being able to watch all those sports in one place. Very pro-consumer,” Iger said in an appearance on CNBC.

Disney, Fox and WBD have announced former Apple TV+ exec Peter Distad as the JV’s CEO. Earlier, Fox Corp. CEO Lachlan Murdoch said the company expects the sports streaming venture to reach 5 million subscribers after five years, making the point that Fox Corp. expects the sports streaming venture to be incremental to its existing pay-TV revenue base.

These are the questions Nadler and Castro requested answers to from the CEOs, which requested that they also copy their responses to the Justice Department:

• What are the relevant markets impacted by the Joint Venture?

• How many subscribers is the Joint Venture projected to have within 1, 3, and 5 years of launch?

• Will the Joint Venture distribute channels of non-joint venture partners?

• How will the Joint Venture Partners determine the pricing of their own sports channels (e.g., Fox Sports, ESPN) included in the Joint Venture?

• How do those prices compare to prices at which such channels are currently licensed to third-party MVPDs or virtual MVPDs?

• Will the Joint Venture Partners implement provisions to prevent anti-competitive sharing of pricing or other competitively sensitive information among each other?

• What measures will the Joint Venture Partners implement to prevent interlocking directorates?

• When will the pricing of the Joint Venture be determined and announced?

• What League Properties does each Joint Venture Partner currently hold the rights to, where “League Property” means a content licensing agreement with any of the following: the NFL, the NBA, the MLB, the NHL, the NCAA Basketball Tournament, NCAA Football (by major league) and NCAA Basketball (Men’s and Women’s). What League Properties to licensors other than the Joint Venture Partners hold the rights to?

• For each of the sports channels that will be included in the new service, how many hours of live events for League Properties does the channel transmit per calendar year?

• To what extent will customers be offered opportunities to bundle other products offered by the Joint Venture partners with the Joint Venture? Will Joint Venture customers be offered the opportunity to bundle the Joint Venture with direct-to-consumer products of third parties?

• Will the Joint Venture Partners offer stand-alone streaming sports services? If the Joint Venture Partners decide to offer independent offerings from the Joint Venture, how will firewalls be implemented to ensure there is no collusion between the Joint Venture and their independent streaming sports offers?

• The Joint Venture Partners currently bid against each other for sports content. However, the new venture will be pooling sports content among the Joint Venture Partners. Will the Joint Venture Partners continue to bid competitively against one another for sports rights as they become available?

• Will the Joint Venture Partners make the channels they include in the Joint Venture available to third parties on non-discriminatory terms?

• Will the Joint Venture partners negotiate jointly with MVPDs to license sports channels? Also, with virtual MVPDs?

• Will the Joint Venture Partners continue to require that MVPDs and virtual MVPDs purchase other programming in addition to their sports channels as a condition of their licensing agreements? Will the Joint Venture Partners continue to require penetration minimums for their sports and other channels when negotiating with MVPDs and other virtual MVPDs?

• The companies propose to engage in a form of vertical integration, leveraging their content assets into a virtual MVPD. In previous transactions involving vertical integration between programmers and MVPDs (e.g., Comcast-NCBU, AT&T-Time Warner), the parties made certain commitments to submit licensing negotiations to binding arbitration. Will joint venture partners make similar commitments?

• Prior to negotiation of the Joint Venture, what standalone plans had each of the Joint Venture Partners considered for making their sports channels available via streaming, including but not limited the launch of a new virtual MVPD or inclusion in the Joint Venture Partner’s existing streaming service (e.g., Disney+ or MAX).

• Do you anticipate the joint venture will be required to make a filing with the Department of Justice and Federal Trade Commission under the Hart-Scott-Rodino Act?

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