Protecting ‘competition, not competitors’: antitrust discourse and the AT&T-Time Warner merger

Abstract

ABSTRACT A key discourse underpinning US antitrust law is that it protects competition, not competitors. However, what this means in practice both has changed over time and betrays the politics underlying antitrust enforcement. This article interrogates this discourse and its contradictions in the context of the AT&T-Time Warner merger lawsuit through a critical discourse analysis of legal documents related to the case. The case represents a conflict over incentivizing competition in digital advertising markets at the expense of competition, particularly smaller competitors, in video markets. The analysis reveals how the discourse obscures the strategic choices made by courts to protect incumbent companies: by approving the merger, the court circumscribed the video programming and distribution market for consolidation to strengthen the competitive position of the merging parties in the digital advertising market dominated by Facebook and Google. Thus, this discourse masks not just the deference to dominant merging companies, but also the role of courts in shaping market competition at their behest.