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More Than "a Toaster with Pictures": Defending Media Ownership Limits…
Tags: amendment 8, barriers to entry, billy tauzin, cheryl leanza, competitive marketplace, economic structure, fcc vote, government prohibition, harold feld, legal principles, marketplace of ideas, meas, media marketplace, media ownership, party discipline, pew research center, potted plant, tom delay, veto threat, virginia republican,Pages: 6
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Created: Tue Nov 25 08:30:48 2003
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More Than "a Toaster with Pictures":
Defending Media Ownership Limits
CHERYL LEANZA AND HAROLD FELD
The recent Federal Communications restore the television national ownership The government prohibition on broad-
Commission (FCC) vote rolling back cap to 35 percent. More remarkably, casting without a license, together with
virtually all of the existing media owner- the bipartisan 4025 vote in favor of the economic structure of the cable
ship limits attracted widespread attention the amendment came in the face of stiff industry, has created a highly concen-
from the American public.1 At last count, opposition from Billy Tauzin, Majority trated market with effectively impene-
over two million communications were Whip Tom DeLay, and a veto threat from trable barriers to entry. Moreover, even
directed to the FCC, 99 percent of them the White House. For many in Congress, if the media marketplace were competi-
opposed to any diminution of protection. this has become a matter of principle tive, legal principles as old as this
Nor has the furor abated with the over party discipline. Virginia Republican country hold that the precious lifeblood
conclusion of the FCC's rulemaking. Tom Wolfe angrily declared that "I did of news and information deserve treat-
A survey by the Pew Research Center not get elected here to be a potted plant ment as something more than a mere
for People and the Press in July 2003 and I don't care how the White House commodity. Democracy depends upon
showed that many people had not feels about the Amendment."8 The meas- a competitive marketplace of ideas; it is
known of the FCC's proceeding until ure passed as part of a broader spending a compelling governmental purpose "of
news of its release and that as they bill by a vote of 400 to 21;9 an effort by the highest order" to take prophylactic
learned of the FCC's decision, opposi- the Republican leadership to recruit steps to ensure that that market does not
tion to it increased.2 Democratic presi- pledges not to override a veto failed to fail.14 Because the connections that allow
dential candidates have spoken out garner support from the rank and file.10 large corporate interests to influence
against the FCC's decision with sitting What has inspired such a response content are complex and subtle, structur-
senators vowing to take action.3 from the public? Issues of media con- al rules that protect diversity by frag-
Advocacy groups attacking the FCC's solidation go to the heart of our democ- menting ownership are essential. Indeed,
decision have reported a sharp surge racy. The U.S. Supreme Court has if media ownership restrictions were
in public support for their positions.4 stated that "the widest possible dissemi- removed, the only way to ensure diversi-
At the time of this writing, the Senate nation of information from diverse and ty would be to impose explicit content
Commerce Committee has reported out antagonistic sources is essential to the mandates and access rules.15 Ownership
two bills rolling back the bulk of the welfare of the public."11 The Court has restrictions offer a far more effective
FCC's rules changes.5 Thirty-five sena- applied this principle of diversity of means of achieving the needed diversity
tors signed a "resolution of disapproval," views as a necessary stimulus of to ensure a robust democracy with less
a rare procedure under the Contract with democracy and vigorous public debate damage to the First Amendment.
America Act that permits Congress to to entertainment as well as news pro-
veto an agency action, and forced a vote duction.12 Many fear a world in which Media Concentration Will Exacerbate
over the objections of the Senate leader- a few media gatekeepers control access Existing Market Failures
ship.6 The resolution of disapproval to the mass media. At best, these multime- Contrary to the arguments of those
passed by a 5540 vote over the objec- dia conglomerates will homogenize news favoring deregulation, the current "mar-
tions of Senate Majority Leader Bill and entertainment into a single "infotain- ket" in news and entertainment is not
Frist and Commerce Committee Chair ment" package leveraged across multime- marked by competitive entry or abun-
John McCain.7 dia platforms and targeted primarily at dance.16 Further, the majority of media
In the House, when Commerce advertiser-coveted demographics. At owners are vertically integrated, multi-
Committee Chair Billy Tauzin refused worst, the few media gatekeepers may national conglomerates with diverse
to consider legislation to reverse the suppress news or perspectives that run economic interests. Accordingly, even
FCC, the Appropriations Committee counter to their economic or ideological excluding incompetent actors or irra-
approved an appropriations rider to interests, or to curry favor with the gov- tional ones who might make program-
Cheryl Leanza (cleanza@mediaaccess.org) ernment. The perception by the viewing ming choices based on ideology rather
is the Deputy Director, and Harold Feld and listening public that this already had than efficiency, the economic incentives
(hfeld@mediaaccess.org) is the Associate begun to happen under the prior rules of media content suppliers do not neces-
Director of the Media Access Project accounts for the public's visceral reaction sarily align with the interests of viewers
(MAP), a nonprofit, public-interest against further relaxation of the rules.13 and citizens. Even where broadcasters
law firm that represents consumer and or other providers of programming rely
citizens groups on telecommunications The Media Market Is Not Competitive solely on their interests in the broadcast
issues. MAP opposes the FCC's June Contrary to the assertions of those markets, the results can still be detrimen-
2, 2003, decision to relax media favoring deregulation, the media mar- tal to the broader concerns of democracy
ownership restrictions. ketplace is not open and competitive. and civic discourse. Two recent cases--
12 · Communications Lawyer · American Bar Association · Fall 2003 · Volume 21 · Number 3
"More Than "a Toaster with Pictures": Defending Media Ownership Limits" by Cheryl Leanza and Harold Feld, published in Communications Lawyer,
Volume 21,No.3, Fall 2003 © 2003 by the American Bar Association. Reproduced bypermission. All rights reserved. This information or any portionthereof
may not be copied or disseminated in any form or by any means or downloadedor stored in an electronic database or retrieval system withoutthe express writ-
ten consent of the American Bar Association.
ABC/Disney's attempt to replace the this does not equate with an ability to but that concentrate on a desirable
popular news show Nightline with Late effectively compete with existing media demographic.24 By the same token, a
Show with David Letterman because of companies. As discussed in more detail cable company has a greater incentive
the desirability of the latter's perceived below, the question is not whether news to air its own programming than to give
viewer demographic, and CBS/Viacom's is somehow discoverable, but whether it access to another company's product.
attempt to interview former Iraqi pris- enters into the public's awareness. Finally, Second, a more disturbing example,
oner of war Jessica Lynch--demonstrate fights over access to content and techno- and a demonstration of how economic
the fallacy of relying on economic incen- logical limitations have prevented stream- incentives of vertically integrated
tives to ensure a mass media market that ing media from emerging as serious com- media conglomerates can warp news
produces accurate, unbiased, and detailed petitors to either radio or television. coverage, is the recent attempt by CBS,
news programming, even when such In addition, as even supporters of a subsidiary of Viacom, to secure an
news programming is both popular deregulation agree, neither cable net- interview with U.S. Army Private First
and profitable. works nor the Internet provide local Class Jessica Lynch. PFC Lynch
As an initial matter, broadcasting news.20 Although consumers display a attracted public attention during the
remains a government-controlled considerable interest in local news, and Iraq war when a squad of Marines
monopoly, and only those with a local news remains critical to maintaining apparently rescued her after her capture
government license can broadcast.17 No an informed local electorate, increased by the Iraqis. To land the first interview,
matter how much money someone wants concentration harms, rather than CBS offered to leverage PFC Lynch
to invest to develop better or more pop- enhances, the production of local news. across Viacom's media properties. In
ular television or radio programming, it An independent study from the Pew addition to a news interview promoting
will not reach potential audiences Foundation Project on Excellence in Lynch, Viacom offered to provide a
unless someone with a federal license Journalism (PEJ) found that stations two-hour CBS news documentary, a
agrees to carry it. When these local owned by small companies (three sta- reunion with her rescuers, and a public-
broadcast licenses become concentrated tions or less) were more than twice as ity campaign. The latter would feature
in a few hands, those few hands decide likely than the largest owners to receive segments on several CBS news pro-
what goes on the air. the PEJ's highest news quality score.21 grams, including CBS Evening News,
Consider an analogy to the restau- The structure of the industry bears an MTV appearance, a Country Music
rant business. If a group of entrepre- this out. Local stations generate local Television concert in her hometown, a
neurs thinks that consumers would like news from local revenues. Because two-hour, made-for-TV movie produced
more variety in their diet, such as typical margins on a well-run television by CBS Entertainment, and book publi-
Ethiopian food, they can open a restau- station in a top market are 60 percent cation with the imprimatur of Viacom's
rant and try their luck. Either they have (and even weak performers earn between Simon & Schuster.25 Although this pro-
accurately assessed the needs of cus- 50 and 55 percent), owners of large posed deal made economic sense for
tomers and will succeed or they have groups of stations view them as cash Viacom, it represents a serious break-
not and will go bankrupt. But if some- cows and absorb the local revenue for down in the ability of the public to
one owns the only restaurant in town other corporate purposes, such as serv- receive news with confidence that the
and local ordinances prevent anyone icing debt.22 As a result, deregulation news meets high standards of journalis-
else from opening one, consumers and increased concentration result in tic integrity (rather than simply being a
have no choice. failures in local news markets. cross-promotional advertisement).
Nor does the 200-channel cable or Even on a national level, economic The same incentives problem exists
direct broadcast satellite system change incentives lead to market failure in news in production of entertainment. Because
this equation. Cable television operators production. Several studies by the PEJ media conglomerates have multiple
are monopolies in virtually every mar- support the conclusion that major net- platforms, the industry has increasingly
ket, and they are vertically integrated. works prefer to produce soft news about come to rely on repurposing, i.e., reusing
Thus, cable viewers who want a differ- the entertainment industry or "infotain- entertainment developed on one property
ent type of programming have no com- ment" stories dwelling on the misdeeds for another.26 Although this practice
petitive options if they do not like the of celebrities than report hard news on saves costs, it severely undercuts the
selections available on their cable sys- significant public policy issues.23 argument that greater concentration leads
tems. They cannot pick and choose to The two examples mentioned above to an increase in original programming,
pay for only one or two channels; they demonstrate how reliance on market or that more outlets without ownership
must pay for a whole package in order forces can create failures in the avail- limitations guarantee more program-
to receive most channels.18 ability of news to the public. First, in ming variety. In one case study of the
Finally, the Internet does not change 2002, ABC attempted to replace Ted Los Angeles market, where television
this calculus. Because of the economics Koppel's news program Nightline with stations increasingly have come under
of news production, only a handful of Late Show with David Letterman. common ownership, the quantity of
websites control the bulk of news gener- Although more people watch Koppel children's programming in the market
ation and distribution over the Internet.19 than Letterman, Letterman draws a decreased (as stations stopped competing
Although anyone remains free to set up younger demographic more desirable to with each other and segmented the
a website and post information, or even advertisers, which will pay a premium market), and the quantity of original
send it unsolicited to the rest of the world, for shows that are less popular overall children's programming declined pre-
18 · Communications Lawyer · American Bar Association · Fall 2003 · Volume 21 · Number 3
"More Than "a Toaster with Pictures": Defending Media Ownership Limits" by Cheryl Leanza and Harold Feld, published in Communications Lawyer,
Volume 21,No.3, Fall 2003 © 2003 by the American Bar Association. Reproduced bypermission. All rights reserved. This information or any portionthereof
may not be copied or disseminated in any form or by any means or downloadedor stored in an electronic database or retrieval system withoutthe express writ-
ten consent of the American Bar Association.
cipitously (as commonly owned sta- than James Madison, who regarded possible dissemination of information
tions repurposed children's program- deliberative debate as a necessary ele- from diverse and antagonistic sources."35
ming from their sister stations and affil- ment of democracy, articulated the
iated cable networks).27 Indeed, a com- principle that the government has an The Threat Is Real, If Subtle
pany may prefer to air a poorer quality obligation to protect the marketplace Proponents of deregulation make their
show that the company produces itself of ideas when private interests threaten argument in a reductio ad absurdum.
than to air a higher-quality, independent it.31 As the U.S. Supreme Court has said, Because information cannot be complete-
show. The same company may continue "[a]t the heart of the First Amendment ly suppressed, it follows that fears of
to air its own show despite low ratings, lies the principle that each person media concentration are unfounded. At
solely because it can reuse the program- should decide for him or herself the the FCC hearing adopting the deregula-
ming. Programming in such situations ideas and beliefs deserving of expres- tion order, Commissioner Abernathy
does not have to be the best to succeed sion, consideration and adherence. Our mocked "speculation about hypothetical
as would be necessary in a competitive political system and cultural life rest media monopolies intent on exercising
market. It merely has to be good enough upon this ideal."32 some type of Vulcan mind control over
to prevent viewers from abandoning As a result, Congress and the U.S. the American people."36 Proponents
television altogether. Supreme Court have identified main- demand absolute proof that news outlets
Finally, as illustrated by the Letterman/ taining a competitive media market- will be influenced in all cases by the
Nightline example, relying on market place as a "government purpose of the economic interests of the news outlets'
forces will leave underserved those mar- highest order."33 Because the broadcast parent companies.
kets that advertisers see as less desirable media remain the primary means by These straw-man arguments fail to
from a demographic standpoint. Society which the public receives information confront the realities of public debate
should not have to tolerate a media mar- and entertainment, the government has served by the First Amendment. The
ket where programming is aimed almost a vital interest in maintaining competition question is not whether information is
exclusively at eighteen- to thirty-five- and diverse ownership in this sector.34 somehow discoverable, but whether the
year-old white males. Increasing the Proponents of deregulation respond public at large has sufficient information
diversity of owners by limiting horizontal that competition has replaced the need to stimulate debate on public affairs and
and vertical integration creates a greater for regulation. When these ownership to ensure an informed and active elec-
likelihood that minority demographics rules were made, they argue, three net- torate.37 As a practical matter, because
will be served. Studies show that minority works were broadcast and most the public generally relies on daily
owners are more likely to program for Americans had access to only a handful newspapers and broadcast media for
minorities and that local owners are more of local channels. Now anyone can sub- their news and entertainment, these out-
likely to program for the local community scribe to systems that provide access to lets generally set the public agenda.
rather than the national demographic.28 hundreds of channels. As for irrefutable evidence, rarely do
The U.S. Supreme Court has consis- This argument misses the mark for corporate heads send notices directing
tently recognized that the broadcast and several reasons. As discussed above, their staff to cover only one side of a
cable markets are not functioning free Americans depend on their local broad- story or to omit coverage of an issue.
markets; rather, they are a system of gov- casters and local newspapers for local As with all social policy issues, the
ernment broadcast monopolies and "nat- news. To allow local news to become question of cause and effect is subtle
ural" cable monopolies. A privileged few dominated by a single provider would and not always easy to measure empiri-
are free to make programming decisions undermine democracy as much as would cally. Further, the impact on our news
based not on free market principles and a monopoly on national news. Even and culture from large media owners is
genuine audience interest but on the abil- without an owner consciously slanting many layered. Nevertheless, the U.S.
ity to control captive customers.29 the news, the deterioration of local Supreme Court has found that the FCC
news coverage from concentration dis- can--indeed must--consider the effects
We Must Distinguish Between cussed above justifies ownership limits of concentration on public discourse.38
Toasters and Information that preserve multiple local outlets. Furthermore, evidence exists that
Mark Fowler, FCC chair under the More important, the First Amendment ownership influences media coverage
Reagan administration, once stated that command that the government ensure a in both gross and subtle ways. A survey
television was "simply another appli- robust marketplace of ideas is, like the by the Pew Research Center and the
ance . . . a toaster with pictures."30 Why world of communication itself, an Columbia Journalism Review (CJR)
do the American people have an inter- expanding ideal, not a minimum thresh- demonstrated that 25 percent of local
est in maintaining a competitive and old. The continued availability of news- and national journalists have intention-
diverse mass media? Antitrust law applies papers did not negate the need to ensure ally avoided newsworthy stories, the
to the media, so why does the public need diversity in broadcasting. The continua- same number have softened the tone
more protection? tion of broadcasting did not negate the of stories to benefit the interests of their
Since the founding of the nation, need to preserve diversity in cable. Rather, news organizations, and 41 percent have
believers in our democratic form of as the U.S. Supreme Court has stressed, done both.39 Of those surveyed, "one-
government have argued that the public the government has a duty to preserve third (35%) say news that would hurt
must remain informed of the news and more than a "rump" information market, the financial interests of a news organi-
stimulated with debate. No less a figure and should instead promote "the widest zation often or sometimes goes unreport-
Number 3 · Volume 21 · Fall 2003 · American Bar Association · Communications Lawyer · 19
"More Than "a Toaster with Pictures": Defending Media Ownership Limits" by Cheryl Leanza and Harold Feld, published in Communications Lawyer,
Volume 21,No.3, Fall 2003 © 2003 by the American Bar Association. Reproduced bypermission. All rights reserved. This information or any portionthereof
may not be copied or disseminated in any form or by any means or downloadedor stored in an electronic database or retrieval system withoutthe express writ-
ten consent of the American Bar Association.
ed, while slightly fewer (29%) say the the corporate party line or else."48 If a news manager is fired for certain
same about stories that could adversely Examples of other Western democra- practices, he or she may be able to find a
affect advertisers."40 Indicative of the cies that do not have ownership limita- job elsewhere. But if a few owners with
subterranean nature of the problem, 26 tions provide object lessons of the danger similar economic interests dominate the
percent of local reporters in the Pew/CJR of concentrated ownership to democratic media, stories will go uncovered and
study believed that a directive to avoid discourse. In Canada, for example, essentially be suppressed.
a story for other reasons was really a CanWest, which owns more than fourteen
pretext to protect the financial interests metropolitan daily newspapers, 120 com- Structural Rules Facilitate the
of the corporate owner.41 munity newspapers, sixteen television sta- First Amendment
Anecdotal examples abound support- tions, seven networks, and an Internet Those who oppose ownership restric-
ing the link between the size and identity news portal, ordered all of its daily news- tions accuse opponents of attempting to
of a station's owner with its content or papers to carry the same national editori- control content. If a station owner sup-
quality. For example, newspaper and als as of December 2001 and prohibited ports the Iraq war and therefore chooses
cable news outlet coverage of a decision editorials or letters to the editors that to ban the Dixie Chicks from play, the
by Congress in 1996 to award over $70 contradicted an approved editorial on First Amendment protects this choice.
billion in free spectrum to broadcasters Palestinian-Israeli relations.49 But no one has said otherwise.
directly correlated with whether its corpo- In Italy, Prime Minister Silvio Rather, what the U.S. Supreme Court
rate parent derived significant income Berlusconi's ownership of the three and supporters of ownership regulation
from broadcasting properties. Those that commercial Italian broadcast networks have said is that the First Amendment
derived significant income from broad- (as well as his influence over the content also requires that no one person or oli-
casting properties supported the measure; of the three government-owned networks) garchy can act as censor for the rest of
those that did not opposed it.42 Similarly, gives him effective control over news the country. Ownership restrictions thus
local radio station managers sponsored programs, which inevitably supports the protect the rights, assured under the
pro-war rallies when they suspected that position of the government.50 First Amendment, of broadcasters to
their efforts would be greeted with wel- Finally, politicians who set national make independent editorial choices and
coming telephone calls from corporate and local policy believe that broadcasters of the public to a diversity of views.53
headquarters because headquarters invest- are in a unique position to control their Media ownership rules are like a
ed mightily in shoring up its links with the access to constituents. They therefore will breakwater or anchor to keep some
current presidential administration.43 rarely oppose policies favored by the boundaries on the decision-making
Furthermore, although they may be broadcast industry.51 Consider the case process. They preserve a minimum
rare, centralized decisions do occur, and of the 1996 Telecommunications Act, level of competition sufficient to
the instances that become public should which gave broadcasters $70 billion in encourage the production of quality
raise concerns about what happens behind spectrum for free. Bob Dole, then a news and entertainment serving diverse
closed doors. For example, at one talk- candidate for the Republican nomination segments of our society without impos-
radio station, a corporate policy prohibits for president, opposed the giveaway. ing content mandates. More important,
airing any callers who sound "old" in On the eve of the Iowa caucus, Dole they protect our society from corporate
order to better target the more profitable received a letter from the owner of sev- censorship as inimical to our democrat-
twenty-five to fifty-four-year-old age eral Iowa television stations threatening ic society as government censorship. At
group.44 As another example, General to support other candidates if he did not a minimum, if one corporation has a
Electric told its subsidiary, NBC, not to change his stand. A few days later, conflict of interest with respect to a
cover its pollution of the Hudson River.45 Dole withdrew his opposition.52 story, at least another outlet is available
Owners also may make central deci- As broadcast outlets concentrate in to investigate it.
sions to support government policy as a the hands of fewer interests, these few As a result, media ownership rules
means of currying favor, further compro- owners wield a proportionately greater free those who depend upon the
mising the critical role of the media in influence. When these owners are not media--not merely performers like the
democracy. For example, Clear Channel merely broadcasters, but multinational, Dixie Chicks or others in the entertain-
management sent a list of 160 songs to its vertically integrated corporations with a ment industry, but politicians as well--
stations that were deemed inappropriate multiplicity of interests, the ability of to speak their minds. First Amendment
for air time after 9/11, among them antivi- these few media giants to shape national analysis recognizes that even small
olence songs such as John Lennon's policy through their direct influence on threats to speech can have a chilling
"Imagine" and Peter, Paul, and Mary's legislators (at both the national and the effect on speech.54 The chilling effect is
"Blowin' in the Wind."46 After a member local level) becomes frightening indeed. no less powerful when the private sec-
of the Dixie Chicks criticized the Bush Decentralizing ownership defuses tor is doing the threatening.
administration's Iraq policy at a con- the threat to democracy. Maximizing
cert, radio stations owned by Cumulus the number of media owners does not
and Clear Channel banned the group eliminate the influence of economic Endnotes
interests, but at least multiple owners 1. The FCC's decision addressed six pre-
from airplay.47 Although the Dixie viously existing media ownership rules. The
Chicks have survived (after lead singer will have different interests. In a world
first three are relatively easy to understand--
Natalie Maines apologized for her of many owners, if one owner refuses two local media rules governing radio and tel-
remarks), the chilling message to less to cover a newsworthy story, rivals will evision only and a national television rule.
popular musicians was quite clear--"toe cover it, and the public will be informed. The national television rule comprised an
20 · Communications Lawyer · American Bar Association · Fall 2003 · Volume 21 · Number 3
"More Than "a Toaster with Pictures": Defending Media Ownership Limits" by Cheryl Leanza and Harold Feld, published in Communications Lawyer,
Volume 21,No.3, Fall 2003 © 2003 by the American Bar Association. Reproduced bypermission. All rights reserved. This information or any portionthereof
may not be copied or disseminated in any form or by any means or downloadedor stored in an electronic database or retrieval system withoutthe express writ-
ten consent of the American Bar Association.
underlying policy that discounts certain sta- 4, 2003) (statement of Michael K. Powell, 31. See CASS R. SUNSTEIN, DEMOCRACY
tions, thus allowing certain owners to possess Chairman, Federal Communications AND THE PROBLEM OF FREE SPEECH xvii
many more stations than the rule would other- Comm'n) ("Today's media marketplace is (1993); William J. Brennan, Jr., The Supreme
wise allow. In addition, the FCC addressed marked by abundance."). Court and the Meiklejohn Interpretation of
two "cross-ownership" rules, i.e., rules that 17. 47 U.S.C. § 301. the First Amendment, 79 HARV. L. REV. 1,
prohibit the ownership of multiple media in a 18. The exception to this rule is broadcast- 1416 (1965).
local area. Prior to the FCC's decision, no ers, who are entitled to "must carry" by cable. 32. Turner I, 512 U.S. at 641.
local radio or television station could own a 47 U.S.C. § 534(a) (2003). Virtually all cable 33. Id. at 663.
newspaper located in the same geographic networks are affiliated with either a broadcast 34. Id.; Turner Broad. Sys., Inc. v. FCC,
area, and multiple radio and television station network or a cable operator. No one else can 520 U.S. 180, 18994 (1997) (Turner II).
combinations also were restricted. In its get on the system. 35. Turner II, 520 U.S. at 193.
recent order, the FCC adopted a single, novel 19. Nightly Business Report: The Business 36. 2002 Biennial Regulatory Review--
"diversity index" that essentially removes any of Online News (PBS television broadcast, Review of the Commission's Broadcast
competitive scrutiny from all but the smallest Aug. 4, 2003) (transcript available at Ownership Rules and Other Rules Adopted
markets in the country. www.nightlybusiness.org). Pursuant to Section 202 of the
2. See PEW RESEARCH CENTER, STRONG 20. Id. Telecommunications Act of 1996, MB Docket
OPPOSITION TO MEDIA CROSS OWNERSHIP 21. PROJECT FOR EXCELLENCE IN No. 02277 (released July 2, 2003) (separate
EMERGES (July 13, 2003), available at JOURNALISM, DOES OWNERSHIP MATTER IN statement of Commissioner Abernathy).
http://peoplepress.org/reports/display. LOCAL TELEVISION NEWS: A FIVE-YEAR 37. A delightful fictional illustration of
php3?ReportID = 188. STUDY OF OWNERSHIP AND QUALITY 4 (Feb. this problem can be found in J.K. Rowling's
3. See, e.g., FCC Eases Media 2003). A second Pew study found that news Harry Potter and the Order of the Phoenix
Ownership Rules, WASH. POST, June 3, 2003, coverage generally declined in proportion to (2003). Because the primary newspaper of the
available at www.washingtonpost.com/ac2/ increased concentration of ownership in wizarding world, the Daily Prophet, refuses
wpdyn/A55552003Jun2?language = print- broadcasting. to publish Harry Potter's story that the villain
er&content = article. 22. Emily Nelson, CBS Now Eyes Local Voldemort has returned and instead engages
4. For example, Common Cause report- Stations, WALL ST. J., Aug. 26, 2002. in a smear campaign against Potter, the wiz-
ed that 30,000 people joined during the first 23. PROJECT FOR EXCELLENCE IN arding public refuses to believe it.
month after it announced its campaign against JOURNALISM, THE CHANGING DEFINITION OF 38. FCC v. Nat'l Citizens Comm. for
media ownership deregulation. See NEWS (1998) (shifting definition of news to Better Broad., 436 U.S. 775, 79697 (1978)
www.commoncause.org. MoveOn, another increasingly focus on entertainment rather (observing that diversity is "an elusive con-
advocacy group, reported a similar surge in than "hard" news); THE WAR ON TERRORISM, cept," that evidence of abuses by common
interest. See www.moveon.org. THE NOT SO NEW TELEVISION LANDSCAPE owners is "difficult to compile," and that the
5. S. 1046 and S. 1264, available at (2002) (after spike in foreign affairs coverage "possible benefits . . . do not lend themselves
www.Thomas.loc.gov. following 9/11 terrorist attacks, trend toward to detailed forecasts").
6. Frank Aherns, Senators Move to Block soft news and infotainment continuing), 39. PEW CENTER FOR THE PEOPLE AND THE
New Media Ownership Rules, WASH. POST, available at www.journalism.org/resources/ PRESS, SELF-CENSORSHIP: HOW OFTEN AND
July 16, 2003, at E1. research/reports/definitions/default.asp. WHY (Apr. 30, 2000), available at http://
7. Heather Phillips, Senate Rejects New 24. Frank Ahrens, In TV's Numbers people-press.org/reports/display.php3?
Media Ownership Rules, SAN JOSE MERCURY Game, Youth Trumps Ratings, WASH. POST, ReportID = 39
NEWS, Sept. 17, 2003. The resolution, S.J. Mar. 13, 2002, at A1. This may also be an 40. Id.
Res. 17, must be passed by the House and example of an inefficient decision by adver- 41. Id.
signed by the president. tisers since no empirical evidence supports 42. J.H. SNIDER & BENJAMIN I. PAGE, DOES
8. Brooks Bolliek, House Panel Bucks the belief by advertisers that the youth MEDIA OWNERSHIP AFFECT MEDIA STANDS?
FCC, Seeks Return of 35 Percent Lid, demographic is in fact more susceptible to THE CASE OF THE TELECOMMUNICATIONS ACT
HOLLYWOOD REP., July 17, 2003, available at advertising. Id. OF 1996, Position Paper #1: Overt Bias 14-16
www.hollywoodreporter.com/thr/article_dis- 25. Jim Rutenberg, To Interview Former (1997, republished by the New Am. Found. in
play.jsp?vnu_content_id = 1934325. P.O.W., CBS Offers Stardom, N.Y. TIMES, 2003) (noting that of all cable news networks,
9. Doug Halonen, Station Cap Rolling June 16, 2003, at A1. only CNN, whose parent did not derive signifi-
Back?, TELEVISION WK., July 28, 2003, at 1. 26. A Season of Seeing Double, BROAD. & cant income from broadcast properties, cov-
10. House Republicans Fail to Rally CABLE MAG., Sept. 30, 2002. ered the broadcast spectrum issue). Similarly,
Media Bill Opposition, BLOOMBERG.COM, at 27. Big Media, Little Kids: Media although newspapers such as the Wall Street
http://quote.bloomberg.com/apps/news?pid = Consolidation & Children's Television Journal gave consistent coverage of the issue
10000103&sid = aPf64rmGkaUY&refer = us. Programming, CHILDREN NOW, May 21, and published editorials opposed to the "spec-
11. Associated Press v. United States, 326 2003, available at www.childrennow.org. trum giveaway," newspapers owned by A.H.
U.S. 1, 20 (1945). 28. JOEL WALDFOGEL, WHO BENEFITS Belo (which derived 64 percent of its profits
12. Red Lion Broad. Co. v. FCC, 395 WHOM IN LOCAL TELEVISION MARKETS? from broadcast properties in the relevant time
U.S. 367, 391 (1969). (2001). period) gave little coverage and supported
13. See, e.g., Commissioner Michael J. 29. See, e.g., Turner Broad. Sys., Inc. v. awarding spectrum to broadcasters).
Copps Bench Statement, In re 2002 Biennial FCC, 512 U.S. 622, 65557 (1994) (Turner I) 43. John Schwartz & Geraldine Fabrikant,
Regulatory Review, June 2, 2003, at 6. (discussing effective monopoly of cable and War Puts Radio Giant on the Defensive,
14. Turner Broadcasting Sys., Inc. v. concluding that "the potential for abuse of N.Y. TIMES, Mar. 31, 2003 (describing Clear
FCC, 520 U.S. 180, 190 (1997). this private power over a central avenue of Channel station series of pro-war rallies
15. Red Lion, 395 U.S. at 390. communication cannot be overlooked"); Red called "Rally for America!").
16. Cf. Broadcast Ownership Biennial Lion Broad. Co. v. FCC, 395 U.S. 367, 44. Robert Feder, WLS Radio Hanging Up
Review, Oral Statement Before the U.S. 38991 (1969). On Callers, CHI. SUN-TIMES, Nov. 21, 2002.
Senate Commerce, Science, and 30. C. EDWIN BAKER, MEDIA, MARKETS, 45. Richard Pollack, Is GE Mightier Than
Transportation Comm., 107th Cong. 3 (June AND DEMOCRACY 3 (2002). the Hudson?, THE NATION, May 28, 2001. A
Number 3 · Volume 21 · Fall 2003 · American Bar Association · Communications Lawyer · 21
"More Than "a Toaster with Pictures": Defending Media Ownership Limits" by Cheryl Leanza and Harold Feld, published in Communications Lawyer,
Volume 21,No.3, Fall 2003 © 2003 by the American Bar Association. Reproduced bypermission. All rights reserved. This information or any portionthereof
may not be copied or disseminated in any form or by any means or downloadedor stored in an electronic database or retrieval system withoutthe express writ-
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cartoon on Saturday Night Live, mocking 48. Chris Willman, Dixie Chicks Answer Sparrow eds., 2001). See also J.H. SNIDER
NBC for failing to cover the pollution story Their Critics, ENTM'T WKLY., May 2, 2003 & BENJAMIN I. PAGE, DOES MEDIA
and drawing the link between media owner- (citing major star Vince Gill backtracking and OWNERSHIP AFFECT MEDIA STANDS?, THE
ship and news coverage, was pulled in reruns. vocally protesting his support for the war after CASE OF THE TELECOMMUNICATIONS ACT
SNL Kills Controversial Cartoon Spoof, N.Y. a backlash when he suggested that the Dixie OF 1996, Position Paper #2: Covert Bias
DAILY NEWS, June 18, 1998. Chicks "had been `bashed enough' "). (1997), available at www.newamerica.net.
46. Rick Karr, The Day the Music Died, 49. Aaron J. Moore, Ownership: A Chill 52. SNIDER & PAGE, supra note 50, at 5458
NAT'L PUB. RADIO (Morning Edition), Sept. in Canada, COLUM. J. REV., Mar./Apr. (1997).
19, 2001, available at www.npr.org/news/ 2002, at 11. 53. FCC v. Nat'l Citizens Comm. for
specials/americatransformed/people/ 50. Italy's Colorful Leader Rides Out Better Broad., 436 U.S. 775, 799800
clearchannel.html. Controversies, L.A. TIMES, June 22, 2003, (1978).
47. Paul Krugman, Behind Pro-War at A5. 54. Ashcroft v. Free Speech Coalition,
Protests, A Company with Ties to Bush, 51. J.H. Snider, The Paradox of News 535 U.S. 234, 244 (2002) ("Even minor
INT'L HERALD TRIB., Mar. 26, 2003; Dixie Bias, in THE POLITICS OF DISCOURSE AND punishments can chill protected speech.")
Chicks Axed by Clear Channel, BUS. J. AMERICAN SOCIETY: NEW AGENDAS (citing Wooley v. Maynard, 430 U.S. 705
JACKSONVILLE, Mar. 18, 2003.. (Roderick P. Hart & Bartholomew H. (1977)).
22 · Communications Lawyer · American Bar Association · Fall 2003 · Volume 21 · Number 3
"More Than "a Toaster with Pictures": Defending Media Ownership Limits" by Cheryl Leanza and Harold Feld, published in Communications Lawyer,
Volume 21,No.3, Fall 2003 © 2003 by the American Bar Association. Reproduced bypermission. All rights reserved. This information or any portionthereof
may not be copied or disseminated in any form or by any means or downloadedor stored in an electronic database or retrieval system withoutthe express writ-
ten consent of the American Bar Association.