Antitrust Enforcement Stops Gatekeeping Amid Media Consolidation

Over the past two decades, the US media landscape has consolidated significantly. A handful of conglomerates now control most of what Americans watch, read, and stream.

Disney absorbed 21st Century Fox and Amazon took over MGM. Netflix has begun vertically integrating by acquiring production studios while Apple is following a similar model through Apple TV +.

Now, the trend is accelerating again. Comcast is weighing another major buyout, this time of Warner Bros. Discovery—already the result of a merger between WarnerMedia and Discovery Inc. The broadcast giant Nexstar Media Group is also working to acquire rival Tegna Inc. in a deal that would combine hundreds of local television stations across dozens of US markets and significantly reshape control of local news distribution.

Media consolidation raises unique antitrust concerns because its harms extend beyond higher prices and reduced output. When one firm controls both the means of transmission and the message itself, it can constrain diversity not only in the marketplace, but also in viewpoint and expression. Put another way, the company controlling the pipeline also controls which ideas reach the public — and that is often the problem.

History shows the “synergies” that proponents of media consolidation tout rarely materialize. That doesn’t mean all large mergers or even all media mergers are bad—some may benefit consumers by improving technology, expanding access, or lowering costs.

But these two proposed mergers are different. They threaten to entrench gatekeeping power rather than deliver true consumer value.

Taking on these media acquisition challenges will give the Trump administration a chance to distinguish how its interpretation of the consumer welfare standard is different than that of the Biden administration’s as well as some recent courts.

Under the Biden administration, the Justice Department’s Antitrust Division head Jonathan Kanter and Federal Trade Commission Chair Lina Khan approached mergers and acquisition enforcement seemingly through ideology, not evidence. They treated “big” as inherently bad and stretched antitrust law beyond its consumer welfare foundation, opposing mergers and acquisitions not because they demonstrably hurt consumers, but because of a general ideological distaste for scale itself. This approach caused confusion across industries and slowed down innovation without making markets any more fair or competitive.

At the same time, some recent courts have focused their interpretation of consumer welfare on price and output alone, and that’s misguided too. As current Antitrust Division head Gail Slater and FTC Chair Andrew Ferguson noted in recent speeches, antitrust has never been solely about price. While past administrations and courts have enforced it that way, the consumer welfare standard was always intended to encompass all forms of harm—including reduced choice, quality, and innovation.

The Trump administration’s interpretation of the consumer welfare doctrine is intuitive, fair, and effective. Per Slater and Ferguson’s recent speeches, if a merger or acquisition helps consumers through lower prices, better products, or faster innovation, it will pass. If it hurts consumers, it won’t.

When it comes to media mergers and acquisitions, the answer is often the latter. I saw this firsthand when I served as state attorney general and joined a bipartisan coalition of states urging the Justice Department to block Comcast’s 2014 plan to acquire Time Warner Cable. The concern wasn’t simply about overlapping customers or higher cable bills. It was also about stopping the ability of one company to dictate terms to content producers and online video competitors. The DOJ ultimately concluded the merger would make Comcast an “unavoidable gatekeeper” for internet-based services and the deal collapsed.

Today, through Xfinity, Comcast already controls almost one-third of the US broadband market. It owns NBCUniversal (and, by extension, NBC, Telemundo, CNBC, MSNBC, Universal Pictures, and Peacock). If Comcast were to acquire Warner Bros. Discovery—thus adding CNN, HBO, and Warner Studios to its portfolio—this single corporation would control nearly 40% of prime-time television, two of the three largest news networks, and one of the largest streaming libraries—a textbook case of problematic vertical integration.

The proposed Nexstar–Tegna merger would bring similar antitrust problems, but on a more localized scale. Nexstar already owns or operates stations that reach nearly 70% of US households while also controlling The CW, NewsNation, and other major networks. Absorbing Tegna’s 60-plus stations would give Nextstar significant leverage over local news markets. This added marketplace control could allow it to dictate advertising rates, cut newsroom staff, and/or homogenize editorial content across dozens of local communities.

At its core, antitrust law is a property rights doctrine. It ensures open markets by preventing dominant firms from using scale and influence to exclude others. When competition collapses, capitalism decays into cronyism. The goal of antitrust enforcement isn’t to punish success but to preserve the freedom of entry that keeps markets—and ideas—vibrant and accessible.

When antitrust enforcers have permitted mega media consolidation over the last decade, the results have been disastrous. For example, when AT&T acquired Time Warner in 2018, the deal was billed to make distribution and content more seamless. In practice, however, it led to mass layoffs in local news and production units. Within three years, AT&T spun off WarnerMedia after losing tens of billions of dollars in shareholder value. Consumers saw little benefit.

Structural problems require structural remedies. Behavioral conditions and oversight agreements can’t police a company that effectively sets its own rules.

All of this to say: In sectors as vital as broadband and media, when companies take actions that can clearly harm consumers, the most pro-market policy is sometimes to say no.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Sean D. Reyes is a former three-term Utah attorney general and past chair of the Republican Attorneys General Association.

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