Charter Communications Inc. and Cox Communications Inc.—both providers of cable and broadband—are seeking approval of their proposed merger from the U.S. Justice Department (DOJ) and Federal Communications Commission (FCC). While the prior administration’s enforcement agencies—who often relied on static market-share snapshots to pursue antitrust claims and failed to consider broader market dynamics—might have sued to block this deal, it should have a clear path forward with current DOJ and FCC leadership, who have pledged to restore traditional antitrust norms grounded in law, precedent, and full-market analysis.
Why Specifics Matter
Charter and Cox largely operate broadband services in distinct territories. Charter serves 41 states, focusing primarily on suburban and urban markets, while Cox’s footprint is largely concentrated in areas that Charter hardly services, such as Arizona, Kansas, Oklahoma, and the City of Las Vegas. This geographic separation indicates the merger will not eliminate direct competition.
Moreover, competition in today’s broadband market extends well beyond cable providers. Fixed wireless, fiber entrants, and 5G networks have significantly diversified consumer choice. As for cable, an outsized number of American families have ceased paying for cable-television packages. There were 68.7 million cable-TV subscribers in 2024, compared to 98.7 million in 2016.
Add it all up, and it becomes clear that the scale created by this merger will strengthen the combined company’s ability to innovate and compete against both the streaming platforms and wireless alternatives that are rapidly reshaping the market.
Modern Economically Based Case Analysis Supports Approval
Prior to the mid-1970s, the U.S. Supreme Court routinely upheld the federal agencies’ merger challenges, viewing virtually any merger as anticompetitive, without regard to close factual or economic analysis.
In General Dynamics (1974), however, the Court applied a more nuanced approach to a merger between two competing coal companies. It recognized that the acquired firm did not have sufficient uncommitted coal reserves to be a significant future competitive force, and that its acquisition therefore did not pose a substantial competitive threat.
While the Supreme Court has not reviewed mergers since the mid-1970s (Congress repealed a law mandating direct appeals of mergers from lower courts to the Supreme Court), it has applied a fact-based and economically sensitive approach in nonmerger antitrust cases. Federal judges have also taken this approach to heart in key merger analyses.
The district court in FTC v. Steris Corp. (2015) emphasized that speculation about potential future competition does not suffice to block a deal without concrete evidence. Charter and Cox are not currently competitors in overlapping markets, and no credible evidence suggests this merger will harm consumer choice or raise prices.
Efficiency claims also should matter, as Justice Brett Kavanaugh (then an appeals court judge) stressed in FTC v. Whole Foods Market and United States v. Anthem. The Charter/Cox deal is fully consistent with this principle. It is projected to provide $500 million in annual savings, which will enable substantial investment in rural broadband and next-generation network upgrades.
While he did not author merger cases as an appeals court judge, in his other antitrust opinions, Justice Neil Gorsuch likewise has shown dedication to the “underlying economic efficiency rationale that undergirds modern mainstream antitrust analysis.”
Furthermore, the merger should pass muster under Brown Shoe, the Supreme Court’s multifactor test for assessing whether a transaction may substantially lessen competition. Although its factors are characterized as “overinclusive, underinclusive, or irrelevant” by leading antitrust treatise author Herbert Hovenkamp, Brown Shoe is still referenced in current federal merger guidelines and thus cannot be ignored.
The Brown Shoe factors center on eliminating existing rivalry, raising entry barriers, and accelerating harmful concentration. None of these are present in Charter/Cox, given the companies’ minimal overlap, the influx of new broadband competitors, and the absence of any evidence that consumer choice or pricing would be harmed.
Past approvals of such transactions as AT&T/DirecTV and Comcast/NBCUniversal underscore that agencies have recognized the benefits of increased scale when paired with clear consumer advantages. Those deals involved greater overlap and more complex competition issues than Charter/Cox, and yet they were approved (albeit with conditions to preserve competition). This deal presents none of those overlap concerns while offering tangible public-interest benefits, including accelerated broadband expansion and improved service quality.
Statutes Mean What They Say
The Clayton Act only allows the DOJ and FTC to challenge mergers when there is evidence that they may substantially lessen competition, which does not appear to be the case here. Further, Congress has empowered agencies to review mergers, but those powers are not unchecked.
The Communications Act asks that the FCC approve license transfers if they serve the “public interest, convenience, and necessity.” The Charter/Cox merger includes commitments to expand fiber infrastructure and improve broadband access, especially in underserved rural areas. It therefore directly advances the FCC’s statutory mandate to promote widespread, reliable, and high-speed internet service.
Judicial and Congressional Checks on Agency Overreach
Courts require agencies to provide reasoned, evidence-supported analyses, and they don’t hesitate to override agency decisions when necessary.
Congress also plays a vital oversight role through the House and Senate Judiciary and Commerce committees. This legislative check preserves the constitutional separation of powers and guards against regulatory overreach.
Conclusion
It’s important that agencies respect statutory boundaries and base their decisions on economic evidence, because that is how companies and consumers gain the predictability needed to plan investments that drive innovation and infrastructure. On the other hand, when agencies ignore these limits, the merger-approval process turns into a politicized one, where power is shifted from markets to government negotiators.
When federal merger-enforcement decisions become unpredictable, the rule of law erodes, and regulatory uncertainty deepens.
The administration has thus far indicated that it seeks to enhance predictability by reinstituting a commonsense, fact-based, and economically centered merger-review policy. Here’s to hoping that it will demonstrate its commitment to such an approach by fully assessing the hard facts and recognizing the factors that support the Charter/Cox deal.
