WASHINGTON AND LEE UNIVERSITY SCHOOL OF LAW Washington Lee Public Law and Legal Theory Research Paper Series Working Paper No 01-03 November 2000 ENHANCING THE SPECTRUM: MEDIA POWER DEMOCRACY AND THE MARKETPLACE OF IDEAS RONALD J. KROTOSZYNSKL JR A. RICHARD M. BLAIKLOCK A final version of this working paper will be published in University of Illinois Law Review This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://papers.ssrn.com/paper.taf?abstractid=253054 An index to the working papers in the Washington and Lee University School of Law Is located at http://aw.wlu.edu/lawcenter/papers
Washington & Lee Public Law and Legal Theory Research Paper Series Working Paper No. 01-03 November 2000 ENHANCING THE SPECTRUM: MEDIA POWER, DEMOCRACY, AND THE MARKETPLACE OF IDEAS RONALD J. KROTOSZYNSKI, JR A. RICHARD M. BLAIKLOCK A final version of this working paper will be published in University of Illinois Law Review (2000) This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=253054 An index to the working papers in the Washington and Lee University School of Law Is located at http://law.wlu.edu/lawcenter/papers
ENHANCING THE SPECTRUM: MEDIA POWER DEMOCRACY AND THE MARKETPLACE OF IDEAS A. Richard m. blaiklock ** In their article, Professor Krotos zynski and Mr. Blaiklock assess diversity and broadcast me dia regulation in contemporary America. First, the authors consider the Federal Communica tions Commission's regulatory attempts to promote di ity in television and radio broadcasting. The authors discuss the commission 's difficulties in defining and characterizing "diversity and fur- ther note some of the inconsistencies inherent in the Commission's dual emphasis on competition and diversity in broadcast programming, also mention ing the threat to democratic values posed by un duly concentrated media ownership. Next, the authors chronicle the burgeoning judicial hostil ity to race-conscious governmental policies and practices. They discuss the related shift from intermediate scrutiny to strict scrutiny in equal protection jurisprudence and the Commission's frantic efforts to provide justifications for its increasingly endangered race-based diversity Associate Professor of Law, Washington and Lee University School of * Associate, Ice Miller. B A, Hanover colt J D. Indiana Univer- sity School of Law Indianapolis. The views expressed in this article are those of Mr. Blaiklock, and not those of his employer Ms. Jean Campbell, William and Mary Class of 1999, provided invaluable research assistance on this article. In addition, the faculty at the wil liam and Mary School of Law kindly invited Professor Kr ent this article incident to a faculty colloquium; the authors acknowledge the helpful and constructive comments and suggestions offered by William and Mary's faculty. We also appreciate the helpful comments and suggestions provided by Charles Buck Logan and Professors Michael Heise, tko, Neal Devins, Alan Meese, Michelle Adams, Dan Cole, Betsy Wil born Malloy, Lilli Levi, and Lyrissa Lidsky on earlier drafts of this arti cle. As always, any errors or omissions are ours alone 101
KROTO.DOC 12/07/00 9:35 AM 101 ENHANCING THE SPECTRUM: MEDIA POWER, DEMOCRACY, AND THE MARKETPLACE OF IDEAS Ronald J. Krotoszynski, Jr.* A. Richard M. Blaiklock** In their article, Professor Krotoszynski and Mr. Blaiklock assess diversity and broadcast media regulation in contemporary America. First, the authors consider the Federal Communications Commission’s regulatory attempts to promote diversity in television and radio broadcasting. The authors discuss the Commission’s difficulties in defining and characterizing “ diversity” and further note some of the inconsistencies inherent in the Commission’s dual emphasis on competition and diversity in broadcast programming, also mentioning the threat to democratic values posed by unduly concentrated media ownership. Next, the authors chronicle the burgeoning judicial hostility to race-conscious governmental policies and practices. They discuss the related shift from intermediate scrutiny to strict scrutiny in equal protection jurisprudence and the Commission’s frantic efforts to provide justifications for its increasingly endangered race-based diversity * Associate Professor of Law, Washington and Lee University School of Law. ** Associate, Ice Miller. B.A., Hanover College; J.D., Indiana University School of Law— Indianapolis. The views expressed in this article are those of Mr. Blaiklock, and not those of his employer. Ms. Jean Campbell, William and Mary Class of 1999, provided invaluable research assistance on this article. In addition, the faculty at the William and Mary School of Law kindly invited Professor Krotoszynski to present this article incident to a faculty colloquium; the authors gratefully acknowledge the helpful and constructive comments and suggestions offered by William and Mary’s faculty. We also appreciate the helpful comments and suggestions provided by Charles “ Buck” Logan and Professors Michael Heise, Gary Spitko, Neal Devins, Alan Meese, Michelle Adams, Dan Cole, Betsy Wilborn Malloy, Lilli Levi, and Lyrissa Lidsky on earlier drafts of this article. As always, any errors or omissions are ours alone
02 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 regulations. The authors also examine the need or diversity in programming, both arguing that structural diversity among broadcast media out lets presents the best means of securing ideo- logically diverse programming and responding to potential objections to structural regulations aimed at securing such diversity. Finally, the authors elaborate on how such structural media regulations do not raise serious equal protection problems and conc lude with reminder that a healthy democracy depends upon a myriad of voIces 工. INTRODUCTIO Since the inception of federal mass media regula tion, the Federal Communications Commission (the com mission)has regulated the airwaves using its public interest, convenience, and necessity"standard.A central component of the Commission's public interest program historically has been to further diversity both broadcast programming and program outlets. Over the years, the Commission has invoked this concept to justify myriad restrictions on the distribution of licenses to operate radio and television stations,as well as a broad array of complimentary regulatory po at shape eration of stations after the Commission has licensed them. Diversity, thus, is at the very core of contemporary broadcast media regulation. Indeed, it is second in importance only to the public interest standard from which it is Careful consideration of the Commission's diver sity project reveals that a variety of cross-cutting and conflicting objectives have obscured the most im- ortant role that government regulations designed to enhance media diversity can play: thwarting the crea 1. 47 U.s.C. 55 303, 309(a)(1994); see also Ronald J. Krotoszynski Jr, The Inevitable Wasteland: Why the Public Trustee Model of Broadcast G. Kra.on Regulation Must Fail, 95 MICH. L. REV. 2101, 2102 (1997): Erwin Telev now& Jack K. Goodman, The Public Interest Standard: The Search for the Holy Grail, 50 FED. COMM. L.J. 605, 607(1998) ee Krasnow Goodman, supra note l, at 627-28 3. See THOMAS G. KRATTENMAKER LOCAS A PROGRAMMING 59-101(1994): Jim Chen, The Last Picture Show (On the Twilight Mass Communications Regulation), 80 MINN. L. REv. 1415, 1431-50 4. See infra text and accompanying notes 14-2
KROTO.DOC 12/07/00 9:35 AM 102 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 regulations. The authors also examine the need for diversity in programming, both arguing that structural diversity among broadcast media outlets presents the best means of securing ideologically diverse programming and responding to potential objections to structural regulations aimed at securing such diversity. Finally, the authors elaborate on how such structural media regulations do not raise serious equal protection problems and conclude with a reminder that a healthy democracy depends upon a myriad of voices. I. INTRODUCTION Since the inception of federal mass media regulation, the Federal Communications Commission (the Commission) has regulated the airwaves using its “ public interest, convenience, and necessity” standard.1 A central component of the Commission’s public interest program historically has been to further diversity in both broadcast programming and program outlets.2 Over the years, the Commission has invoked this concept to justify myriad restrictions on the distribution of licenses to operate radio and television stations,3 as well as a broad array of complimentary regulatory polices that shape the day-to-day operation of stations after the Commission has licensed them.4 Diversity, thus, is at the very core of contemporary broadcast media regulation. Indeed, it is second in importance only to the public interest standard from which it is derived. Careful consideration of the Commission’s diversity project reveals that a variety of cross-cutting and conflicting objectives have obscured the most important role that government regulations designed to enhance media diversity can play: thwarting the crea- 1. 47 U.S.C. §§ 303, 309(a) (1994); see also Ronald J. Krotoszynski, Jr., The Inevitable Wasteland: Why the Public Trustee Model of Broadcast Television Regulation Must Fail, 95 MICH. L. REV. 2101, 2102 (1997); Erwin G. Krasnow & Jack K. Goodman, The Public Interest Standard: The Search for the Holy Grail, 50 FED. COMM. L.J. 605, 607 (1998). 2. See Krasnow & Goodman, supra note 1, at 627-28. 3. See THOMAS G. KRATTENMAKER & LUCAS A. POWE, JR., REGULATING BROADCAST PROGRAMMING 59-101 (1994); Jim Chen, The Last Picture Show (On the Twilight of Federal Mass Communications Regulation), 80 MINN. L. REV. 1415, 1431-50 (1996). 4. See infra text and accompanying notes 14-21
No.3] ENHANCING THE SPECTRUM tion of undue concentrations of media power, thereby advancing the project of democratic deliberation isentangling the complex web of diversity-inspire regulations is no easy task, for the Commission's ef- forts to promote diversity, not unlike a coral reef have grown both incrementally and haphazardly. The Commission has invoked the diversity rationale to support a variety of disparate programs, including but hardly limited to tructural egulations that divide and separate media ownership. Content- and viewpoint-neutral regulations that prevent the undue concentrat of media ownership should be maintained and, perhaps, even strengthened. Conversely, diver- sity regulations aimed at controlling the content of programming, whether directly or indirectly, should be abandoned The diversity question is especially deserving of close attention at the moment because Congress and the Commission are actively considering a variety of proposals that would weaken the structural regula- tions promoting diversity of ownership among media outlets he Telecommunications Act of 1996 also sig nificantly weakened both national and local multiple ownership rules, leading to a feeding frenzy of con See Newspaper/Radio Cross Ownership Waiver Policy, 11 F.C.C 13,003, 13,003-08 (paras. 1-8)(1996)(notice of inquiry): Multiple Owner ship of standard, EM, and Television Broadcast Stations, 50 F CC 2d 1046 1975), reconsidered, 53 F.C.C. 2d 589 (1975), aff'd sub tional citizens Comm. for Broad, 436 U.s. 775, 779(1978);47 C.F. R S 73.3555(1998). The newspaper-radio cross-ownership rule, id. s(d)(1)-(2), which generally prohibits a daily newspaper and a station in the same munity from being owned, operated, or controlled, either directly or indi- rectly, by the same party, is under review. See Newspaper/Radi wnership Waiver Policy C.C.R. at 13, 003-08 (paras. 1-8). In add tion, as part of its bienne view, the Commission issued a notice of in- quiry ( NOI) reviewing its broadcast ownership rules. See Review of the Com mission's Broadcast Ownership Rules and other Rules Adopted Pursuant te ection 202 of The Telecommunications Act of 1996, 13 F.C. C.R. 11, 276 1, 276-79 (paras. 1-8)(1998) (notice of inquiry). Among the rules unde eview are a national television ownership rule that limits the audience reach of a television network to an aggregate reach of 358, see 47CFR s 733555(e)(1), a newspaper broadcast cross-ownership rule that prohibit a daily newspaper and a broadcast station in the same community from being wned, operated, or controlled, either directly or indirectly, by the same party, see id. 5 (d)(3), a local radio ownership rule that limits the nt ber of radio stations in a particular market that can be owned, operated controlled by a party, see id. s (a)(1), and the cable/television cross- wnership rule that prohibits a television station and a cable system in the same local community from being owned, operated, or controlled, eithe directly or indirectly, by the same party. See id. 5 76.501(1) 6. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 103 tion of undue concentrations of media power, thereby advancing the project of democratic deliberation. Disentangling the complex web of diversity-inspired regulations is no easy task, for the Commission’s efforts to promote diversity, not unlike a coral reef, have grown both incrementally and haphazardly. The Commission has invoked the diversity rationale to support a variety of disparate programs, including, but hardly limited to, structural regulations that divide and separate media ownership. Content- and viewpoint-neutral regulations that prevent the undue concentration of media ownership should be maintained and, perhaps, even strengthened. Conversely, diversity regulations aimed at controlling the content of programming, whether directly or indirectly, should be abandoned. The diversity question is especially deserving of close attention at the moment because Congress and the Commission are actively considering a variety of proposals that would weaken the structural regulations promoting diversity of ownership among media outlets.5 The Telecommunications Act of 1996 also significantly weakened both national and local multiple ownership rules,6 leading to a feeding frenzy of con- 5. See Newspaper/Radio Cross Ownership Waiver Policy, 11 F.C.C.R. 13,003, 13,003-08 (paras. 1-8) (1996) (notice of inquiry); Multiple Ownership of Standard, FM, and Television Broadcast Stations, 50 F.C.C.2d 1046 (1975), reconsidered, 53 F.C.C.2d 589 (1975), aff’d sub nom., FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 779 (1978); 47 C.F.R § 73.3555 (1998). The newspaper-radio cross-ownership rule, id. § (d)(1)–(2), which generally prohibits a daily newspaper and a station in the same community from being owned, operated, or controlled, either directly or indirectly, by the same party, is under review. See Newspaper/Radio CrossOwnership Waiver Policy, 11 F.C.C.R. at 13,003-08 (paras. 1-8). In addition, as part of its biennial review, the Commission issued a notice of inquiry (NOI) reviewing its broadcast ownership rules. See Review of the Commission’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of The Telecommunications Act of 1996, 13 F.C.C.R. 11,276, 11,276-79 (paras. 1-8) (1998) (notice of inquiry). Among the rules under review are a national television ownership rule that limits the audience reach of a television network to an aggregate reach of 35%, see 47 C.F.R. § 73.3555(e)(1), a newspaper broadcast cross-ownership rule that prohibits a daily newspaper and a broadcast station in the same community from being owned, operated, or controlled, either directly or indirectly, by the same party, see id. § (d)(3), a local radio ownership rule that limits the number of radio stations in a particular market that can be owned, operated, or controlled by a party, see id. § (a)(1), and the cable/television crossownership rule that prohibits a television station and a cable system in the same local community from being owned, operated, or controlled, either directly or indirectly, by the same party. See id. § 76.501(1). 6. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
104 UNIVERSITY OF ILLINOIS LAW REVIEW [Vo solidation within the commercial radio and television broadcasting industry. Although this round of con solidation has not yet been completed, the national networks and large station groups immediately showed interest in acquiring even more radio and television stations In August 1999, the Commission surrendered to in- dustry pressure and adopted regulations that signifi- cantly weaken the multiple ownership rules. Not con (codified in scattered sections of 47 U.s.C. 7. The Telecommunications Act of 1996 instructed the Commission to eliminate the national cap on the number of radio stations that can be jointly owned, see id. s 202(a), 110 Stat. at 110; increase the number of stations in an individual market that can be owned by one entity, see id s 202(b), 110 Stat. at 110; eliminate the national cap on the number of elevision stations that can be jointly audience reach to 358, see id. s 202(c)(1),110 Stat. at 11l, conduct hear ings concerning the limits on the number of television stations that ar tity may own, operate, or control in the same television market, see s 202(c)(2), 110 Stat. at 1ll; extend its waiver policy with respect to the one-to-a-market ownership rule for the top twenty-five marke fifty markets. s 202(d),110 Stat. at 11l; and eliminate the prohi bition on broadcast network-cable cross-ownership. See id. 5 202(f)(1),110 stat. at 111. The results of these provisions have been both startling and ift, producing an orgy of consolidation. See Al Brumley, Radio signals Are man Conglomerate, CHI. TRIB., Feb. 22, 1998, at Cl: Tom Steighorst, Diversity ost Among Station Sales, SuN-SENTINEL (Fort Lauderdale), Nov. 30, 199 8. See Paige Albiniak Bill McConnell, Strange Bedfellows, BROADCASTING& CABLE, Aug. 16, 1999, at 6, 22 (reporting on the increasing pressure that lall Street and the broadcasting industry, aided by their friends in Con gress, are applying to ECC Chairman Kennard and his colleagues to liberal- ize the multiple ownership rules, thereby permitting greater concentrations of local and national broadcast media holdings) The television duopoly rule, which precludes television broadcast ations with overlapping Grade B contours from being owned, operated, o olled, either directly or indirectly, by the same party, see 47 C.E.R s 733555(b) (1970), has been under review recently. See Review of the Com 7F.C.C.R.4111, 4116-17(paras. 22-28)(1992)(notice of proposed rulemaking): Review of the Commmission's Requlations Governing Television Broadcasting, Television sat ellite Stations Review of Policy and Rules, 11 F.c.C. R. 21,655, 21, 661-6 paras. 10-13)(1996)(second further notice of proposed rulemaking).On August 5, 1999, the Commission repealed in part the duopoly rule, allowing a ingle entity to own or control more than one television station in a single narket if certain conditions are met. See generally Review of the Commis sion's Regulations Governing Television Broadcasting, Television Satellite stations Review of Policy and Rules, 14 F.C. C.R. 12,903(1999)(report a e also David Fiske, FCC Revises Local Television Ownership Rules, ECCREP. No. 99-8, Aug. 5, 1999, available in, 1999 FCC LEXIs 3736 (providing an executive summary of the changes in the multiple ownership rules)i Al iniak McConnell, supra note 8, at 6 (describing the policy changes in the local ownership rules and the politics surrounding these changes). The one to-a-market rule, which generally prohibits a television station and a radic station in the same market from being owned, operated, or controlled, either
KROTO.DOC 12/07/00 9:35 AM 104 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 solidation within the commercial radio and television broadcasting industry.7 Although this round of consolidation has not yet been completed, the national networks and large station groups immediately showed interest in acquiring even more radio and television stations.8 In August 1999, the Commission surrendered to industry pressure and adopted regulations that significantly weaken the multiple ownership rules.9 Not con- (codified in scattered sections of 47 U.S.C.). 7. The Telecommunications Act of 1996 instructed the Commission to eliminate the national cap on the number of radio stations that can be jointly owned, see id. § 202(a), 110 Stat. at 110; increase the number of stations in an individual market that can be owned by one entity, see id. § 202(b), 110 Stat. at 110; eliminate the national cap on the number of television stations that can be jointly owned and increase the national audience reach to 35%, see id. § 202(c)(1), 110 Stat. at 111; conduct hearings concerning the limits on the number of television stations that an entity may own, operate, or control in the same television market, see id. § 202(c)(2), 110 Stat. at 111; extend its waiver policy with respect to the one-to-a-market ownership rule for the top twenty-five markets to the top fifty markets, see id. § 202(d), 110 Stat. at 111; and eliminate the prohibition on broadcast network-cable cross-ownership. See id. § 202(f)(1), 110 Stat. at 111. The results of these provisions have been both startling and swift, producing an orgy of consolidation. See Al Brumley, Radio Signals Are Hard to Read, DALLAS MORNING NEWS, Oct. 19, 1997, at C1; Tim Jones, Radio’s Human Conglomerate, CHI. TRIB., Feb. 22, 1998, at C1; Tom Steighorst, Diversity Lost Among Station Sales, SUN-SENTINEL (Fort Lauderdale), Nov. 30, 1997, at F1. 8. See Paige Albiniak & Bill McConnell, Strange Bedfellows, BROADCASTING & CABLE, Aug. 16, 1999, at 6, 22 (reporting on the increasing pressure that Wall Street and the broadcasting industry, aided by their friends in Congress, are applying to FCC Chairman Kennard and his colleagues to liberalize the multiple ownership rules, thereby permitting greater concentrations of local and national broadcast media holdings). 9. The television duopoly rule, which precludes television broadcast stations with overlapping Grade B contours from being owned, operated, or controlled, either directly or indirectly, by the same party, see 47 C.F.R. § 73.3555(b) (1970), has been under review recently. See Review of the Commission’s Regulations Governing Television Broadcasting, 7 F.C.C.R. 4111, 4116-17 (paras. 22-28) (1992) (notice of proposed rulemaking); Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 11 F.C.C.R. 21,655, 21,661-63 (paras. 10-13) (1996) (second further notice of proposed rulemaking). On August 5, 1999, the Commission repealed in part the duopoly rule, allowing a single entity to own or control more than one television station in a single market if certain conditions are met. See generally Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903 (1999) (report and order); see also David Fiske, FCC Revises Local Television Ownership Rules, FCCREP. NO. 99-8, Aug. 5, 1999, available in, 1999 FCC LEXIS 3736 (providing an executive summary of the changes in the multiple ownership rules); Albiniak & McConnell, supra note 8, at 6 (describing the policy changes in the local ownership rules and the politics surrounding these changes). The oneto-a-market rule, which generally prohibits a television station and a radio station in the same market from being owned, operated, or controlled, either