I know there will be a lot of hullabaloo over the green light given to Bruce Gordon and Lachlan Murdoch to make a joint bid for the Ten Network, but hold the self-immolation for a moment and consider what the ACCC did say. Yes, it gave the dynamic duo of failed Ten shareholders the go ahead for a bid, but they can’t actually make one. Not without the media law changes now stuck in the Senate and suffering collateral damage from Pauline Hanson’s burqa stunt and the citizenship confusion where seven senators still face questions about their parliamentary eligibility.

There remains no certainty that the changes will get up. The High Court hearing yesterday suggests the imbroglio could be with us until October or even November. If it lasts until then the laws could be held over to next year. Just who could be qualified to vote in the Senate remains to be seen. And if the changes do get up, then the joint bid has to win the approval of Ten creditors, facing competition from rival parties. And even if they win, the ACCC comments yesterday suggest it will not be very important — in fact there is the slightest of hints in the ACCC’s comments that it could be a waste of time and money.

Consider what Australian Competition and Consumer Commission chair Rod Sims said:

“The ACCC considers that this deal is unlikely to result in a substantial lessening of competition in any relevant market, despite it lessening competition via a greater alignment of Mr Murdoch’s, Mr Gordon’s, and Ten’s interests … Our review focused on how the transaction would result in an expansion of Murdoch interests in Australian media, when they already have a significant influence in newspapers, Foxtel, radio, and television production.”

He continued: 

“We considered whether the acquisition would significantly reduce competition, by causing a reduction in the quality and range of news content, or increasing the negotiation power of the combined Ten/Foxtel/News Corporation. On the issue of the effect on competition in the supply of news services, the ACCC took into consideration competition from news providers on other media platforms and in particular, the other free-to-air networks, given Seven and Nine have a stronger position in the market than Ten. Ten news in particular suffers the lowest news ratings of the three commercial networks and has a relatively small online presence.”

In other words, Ten’s news service is so unimportant that it is not really an issue. Monday to Friday the 5pm bulletin gets between 600,000 and 700,000 viewers nationally — Seven’s news is three times that, Nine’s more than twice, and the ABC’s news service is 50% more. The weekend news broadcasts get 300,000 to 400,000 (at best). Seven, Nine and the ABC’s audiences are multiples of that derisory figure. Ten’s online presence is nearly an asterisk (which in ratings terms means “did not register”).

[Murdoch and Gordon’s brutal, secret play for Ten]

One worry about the ACCC’s decision was the justification in the announcement: “The ACCC does not have significant concerns about the potential for overlap between Mr Gordon’s WIN interests and Ten as the networks are broadcast in separate geographic areas.” Well, yes, that’s true because WIN is the regional affiliate of Ten, but together they would control the entirety of Ten Network content across the country. But that is not much changed from the previous set-up where Gordon controlled 14.9% of Ten, Murdoch around 7.7% and Telstra (50% owned by News Corp and the Murdochs) owned 13.8%, giving the trio a 36.2% stake and effective control, seeing as James Packer’s 7.7% stake is linked.

But unlike the UK, where media diversity is an important consideration (and where the Murdoch/Fox bid for the rest of Sky plc is in trouble with regulators and perhaps the government), it is not so important in Australia, as Sims outlined yesterday:

“While this transaction will result in some reduction in diversity across the Australian media landscape, we have concluded it would not substantially lessen competition, which is the test the ACCC is required to assess acquisitions against.”

But he and the ACCC didn’t mention the other substantial media ownership change that is going on at the moment: the move by Telstra to cut its stake in Foxtel by forcing News Corp to take some of its stake. News will do that by selling Fox Sports into Foxtel which will pay for it by issuing shares to News Corp Australia, watering Telstra down to a 35% stake from 50% and boosting News’ holding to 65%.

[Who really killed Channel Ten?]

That will force News to take on over $2 billion in debt from Foxtel, and program costs and liabilities, as well as $1.9 billion in goodwill — the single greatest asset in the Foxtel books (and as we have seen recently, not worth much at all given the $2.2 billion in write-downs and impairments by News, Seven West Media, Nine and Ten).

But Sims attempted to offset ignoring the loss of diversity by warning in his statement:

“The Australian media market is becoming increasingly concentrated and we will continue to closely examine future media mergers in light of the impact any future loss of competition may have on both choice and quality of news and content produced for Australian audiences.”

So, if those media laws changes, he seems to be suggesting that further mergers might find it tough to get approval. But after years of similar warnings and then approvals of deals — involving News, Fairfax, Seven (Kerry Stokes) and Ten — blocking a big media deal, as Kiwi regulators have done twice this year, ranks up there with the miracle of porcine flight.