Op-Ed: Thomas Willcox: Why the Charter-Cox merger Is a no-brainer
Thomas Willcox walks through the legal history that supports the merger of Charter and Cox in his latest op-ed.
The proposed merger between Charter Communications and Cox Communications arrives at a pivotal moment for American connectivity, offering the potential to significantly enhance consumer welfare by accelerating broadband deployment, spurring innovation, and expanding service options in both cable and streaming markets.
With approximately 20 million U.S. households still lacking reliable high-speed internet — especially in rural and underserved areas — the Charter-Cox combination is poised to leverage operational synergies and increased scale to deliver more affordable, reliable, and advanced broadband services.
Contrary to claims of reduced competition, the merger would not diminish consumer choice because Charter and Cox operate in largely distinct geographic territories. Instead, it would position the combined company to compete more effectively against national broadband giants and rapidly growing wireless and streaming providers.
Consumers are likely to benefit through faster fiber upgrades, expanded network coverage, and greater streaming content variety, as Charter and Cox invest in new technologies and respond to the evolving digital marketplace.
In sum, the merger stands to deliver tangible gains in connectivity and market options, helping bridge the digital divide and promote long-term improvements in consumer choice and affordability.
Critics claim the Charter-Cox merger will decrease competition and increase prices. However, instead of reducing competition, the consolidation actually better positions both companies to compete in today’s market. Nationally, they face national broadband giants who are combining massive networks with rapidly expanding wireless services.
Regardless of the outcome of this merger, the fact remains the same: legacy providers need to scale if they want to survive traditional cable’s extinction. Providers must start expediting fiber upgrades and standing toe-to-toe with wireless and satellite, all while continuing to provide affordable, reliable services to the consumers who need it most.
The current market landscape
It is estimated that, when combined, Charter-Cox will serve around 37.6 million customers across broadband, TV, and phone, allowing it to narrowly overtake Comcast (34 million customers) as the industry’s top company with about 32 percent of the market. However, 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.
The merger may give Charter–Cox the top line in broadband subscriber counts, but it still would not make them the most powerful player in the market. Broadband is only one branch of the connectivity tree. Continued investment in wireless, fiber, streaming, and branding would still leave the combined company smaller than the larger firms, as previously noted. The merger will provide the necessary scale that Charter and Cox both need to compete more effectively in all areas.
The legal framework
In any case, courts have long rejected the idea that raw market-share statistics are enough to condemn a merger. In United States v. General Dynamics Corp. 415 U.S. 486 (1974), the Supreme Court ruled that market shares are only snapshots in time; the real test is whether actual conditions show a likelihood of future harm. Similarly, in United States v. Marine Bancorporation 418 U.S. 602 (1974), the Court refused to block a merger on “potential competition” grounds without concrete proof that the target would have entered the market independently.
More recently, courts have shown skepticism toward speculative enforcement theories. In FTC v. Tenet Health Care Corp.Cite 186 F.3d 1045 (8th Cir. 1999), the court overturned a merger challenge after concluding that the DOJ’s market-definition assumptions exaggerated the risks. And, in a more recent case, United States v. Sabre Corp. 452 F.Supp.3d 97 (D. Del. 2020), the “nascent competitor” theory was rejected, as it was found that it relied on opinion rather than fact. These types of cases highlight the importance of the consistent judicial doctrine: antitrust law necessitates tangible proof and evidence, not theories that are “impermissibly speculative.”
This concern is more important now than ever, with regulatory agencies possessing the tools to aggressively stretch their antitrust theories beyond traditional bounds.
Courts have reminded enforcers over and over that antitrust isn’t meant to persecute success or size. See United States v. Aluminum Co. of America (Alcoa), 148 F.2d 416 (2d Cir. 1945),: “[t]he successful competitor, having been urged to compete, must not be turned upon when he wins.”
To the contrary, antitrust enforcement is about preventing verifiable damage to consumers. For consumers overpaying for services in areas where Charter and Cox do not have a presence, a potential new competitor would represent far from a threat. Those responsible for regulating telecommunications must consider these realities when applying Section 7 of the Clayton Act, which prohibits mergers and acquisitions whose effect “may be substantially to lessen competition, or to tend to create a monopoly.” Most importantly, “the Government has the burden of proof to demonstrate that the merger is likely to lessen competition substantially in that uncertain future.” US v. AT&T Inc., 310 F. Supp. 3d 161, 191 (D.D.C. 2018). Further, if the defendants put forward sufficient evidence to rebut plaintiff’s prima facie case, “the burden of producing additional evidence of anticompetitive effect shifts to the [government].”
Conclusion
Telecommunications is a rapidly moving industry where efficiency and consumer benefits are imperative. In the case of FTC v. H.J. Heinz Co. 246 F.3d 708 (D.C. Cir. 2001), the court urged that merger-specific efficiencies hold significant weight in a close case. The same logic applied when the court rejected a government challenge to a vertical merger in United States v. AT&T Inc., supra, which noted that merger enforcement cannot be based on speculative theories in dynamic technology markets.. Broadband is no different.
For telecom mergers, blocking consolidation at all costs would only entrench the already dominating incumbents. Consumers would not benefit from a weaker Charter or a weaker Cox, but rather a combined competitor with the capital to upgrade, expand and keep pace with wireless and satellite innovations.
Reflexive government overreach, such as blocking mergers simply because they involve large companies, does not advance consumer welfare. As General Dynamics reminds us, antitrust law is about protecting competition, not competitors. a Merger that brings a worthy adversary to big players such as Comcast, Verizon, and encourages more wireless entrants follow the General Dynamics principle.
Regulators should seize this opportunity to align antitrust enforcement with the very mission it was made to serve: delivering more choices, better service, and lower prices to consumers. Antitrust enforcers must allow it to go through.
Thomas C. Willcox is a solo legal practitioner, member of the New York Bar and a frequent publisher in antitrust; he also was a deputy in the Antitrust Section of the Pennsylvania Attorney General.