AT&T buys T-Mobile—or does it?
As soon as I spied the headline in the Wall Street Journal, I knew it was only half the story. “AT&T to Buy Rival in $39 Billion Deal,” it said, followed by a story describing an agreement between AT&T and T-Mobile, the second- and fourth-largest wireless carriers in the country.
I paged through the paper, waiting for the other shoe to drop. And there it was, on Page B1: “T-Mobile Deal Faces Antitrust Barriers.” Turns out the two companies need permission to merge from at least three government three agencies: the Federal Communications Commission, the Justice Department, and the Federal Trade Commission.
So, the “deal” wasn’t really a deal. It was more like a very complicated, very expensive petition for Uncle Sam’s permission to do a deal. What that means is that AT&T and T-Mobile don’t have freedom of contract. They don’t have the right to make the final decision on whether to merge.
It’s not just big companies that lack freedom of contract. Think about it: how many contracts in your own business or profession require prior permission from a bureaucrat? How many deals require the parties to be licensed? How many projects require a special permit, or certificate of need? How many exports must satisfy a quota? How many deals have to be crafted so as not to draw government attention? And perhaps most important of all: How many deals don’t make it past the back-of-a-napkin stage because permission would be too hard to get?
I think of it this way: the number of government permissions needed for private parties to go about their business is one measure of how far our legal system has moved away from freedom of contract. We wouldn’t tolerate such interference with our freedom of speech. Why do we so often tolerate it when it comes to voluntary contracts?
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