No.3] ENHANCING THE SPECTRUM tent with this success, the broadcasting industry and its congressional allies are seeking even further de regulation of the ownership of television stations Before facilitating another buying spree, the Commis sion should consider very carefully the wisdom of permitting the further consolidation of radio and television holdings. a better course of action would be to weigh the potential negative effects of the in- creased concentration of media power in fewer and fewer hands against the broadcasting industry directly or indirectly, by the same party, see 47 C.E.R. 5 733555(c) (1970), was repealed by the same report and order that rescinded the duopoly rule. See Review of the Commmission's Requlations Governing Television Broad- asting, 14 F.C. C.R. at 12,947-54 (paras. 100-114).The attribution rules, cluded wi ownership rules, are also relevant because they define what the Commission considers gnizable interest for oses of the ownership rules. See 47 C.F.R. s 73.3555, at n1-10(1998). After reviewing the attribution rules, Review f the Commissions Regulations Governing Attribution of Broadcast Inter- sts, Review of the Commission's lations and Policies Affecting Invest ent in the Broadcast Industry, Reexamination of the Commission'sCross- Interest Policy, 10 F C.C.R. 3606(1995) (notice of proposed reulmaking view of the Commission's Requlations Governing Attribution of Broadcast nd Cable/MDS Interests, Review of the Commission's Regulations and Policies Affecting Investment in the Broadcast Industry, Reexamination of the Commi sion's Cross-Interest Policy, 11 F.C. C.R. 19,895(1996)(further notice of proposed rulemaking), the Commission modified these rules to include local marketing agreements, a variety of equity holdings, and contractual arrange- f tation in the same market. See Review of the Commission's Regu rning Attribution of Broadcast and Cable/MDS Interests, 14 F C.C.R. 12,559 1999) ort and order) see also Ken silverstein, His bic t Takeover How Murdoch Bought washington, NATION, June 8, 1998, at 18. 32 (describing Murdoch's interest in the rule change): Broadcast Owership Inquiry May Show FCC's Philosophical Differences, CaMM. DAILY, Mar. 13, 1998, available in 1998 WL 10696068: Ownership Restrictions Debated, TELEVISION DIGEST, Feb. 17, 1997, t 5, 5. To its credit, the Commission actually strengthened the attribution rules. See Review of the Commission's Regulations Governing Attribution of Broadcast and Cable/MDS Interests C.R.at12,563,12,587-88,12,59 3,12,597-99( paras.6,60,69, its national ownership rules to account the changes to its attri bution rules. See Review of the on's Regulations Governing Telev sion Broadcasting, Television Satellite Station Review of Policy and Rules 14 F.C.C.R. at 12, 903. For an overview of the Commission's recent efforts to boff, Ready, Set Duopoly, BROADCASTING & CABLE, Aug. 9, 1999, at 4, 4-5 10. See Paige Albiniak, GOP Pushes Ownersh Sept. 20, 1999, at 19, 19 (describing efforts by the major networks, large station groups, and their friends in Congress to browbeat the Commission into further rollbacks of the multiple ownership rules); Bill Mccone NAB Offers $ioM for Minority Plan, BROADCASTING CABLE, Feb. 22, 1999, at 14 4-15 (describing National Association of Broa rs′(NAB) proposa1to fund minority ownership of radio and television stations and the possibil ity of relaxed limitations he number of television and radio stati that a single owner could own or control
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 105 tent with this success, the broadcasting industry and its congressional allies are seeking even further deregulation of the ownership of television stations.10 Before facilitating another buying spree, the Commission should consider very carefully the wisdom of permitting the further consolidation of radio and television holdings. A better course of action would be to weigh the potential negative effects of the increased concentration of media power in fewer and fewer hands against the broadcasting industry’s directly or indirectly, by the same party, see 47 C.F.R. § 73.3555(c) (1970), was repealed by the same report and order that rescinded the duopoly rule. See Review of the Commission’s Regulations Governing Television Broadcasting, 14 F.C.C.R. at 12,947-54 (paras. 100-114). The attribution rules, although not included within the broad category of broadcast ownership rules, are also relevant because they define what the Commission considers a cognizable interest for purposes of the ownership rules. See 47 C.F.R. § 73.3555, at n.1-10 (1998). After reviewing the attribution rules, Review of the Commission’s Regulations Governing Attribution of Broadcast Interests, Review of the Commission’s Regulations and Policies Affecting Investment in the Broadcast Industry, Reexamination of the Commission’s CrossInterest Policy, 10 F.C.C.R. 3606 (1995) (notice of proposed reulmaking); Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, Review of the Commission’s Regulations and Policies Affecting Investment in the Broadcast Industry, Reexamination of the Commission’s Cross-Interest Policy, 11 F.C.C.R. 19,895 (1996) (further notice of proposed rulemaking), the Commission modified these rules to include local marketing agreements, a variety of equity holdings, and contractual arrangements in which one station controls the programming decisions of another station in the same market. See Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. 12,559 (1999) (report and order); see also Ken Silverstein, His Biggest Takeover: How Murdoch Bought Washington, NATION, June 8, 1998, at 18, 31-32 (describing Murdoch’s interest in the rule change); Broadcast Ownership Inquiry May Show FCC’s Philosophical Differences, COMM. DAILY, Mar. 13, 1998, available in 1998 WL 10696068; Ownership Restrictions Debated, TELEVISION DIGEST, Feb. 17, 1997, at 5, 5. To its credit, the Commission actually strengthened the attribution rules. See Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. at 12,563, 12,587-88, 12,592- 93, 12,597-99 (paras. 6, 60, 69, 83-88). Finally, the Commission modified its national ownership rules to take into account the changes to its attribution rules. See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Station Review of Policy and Rules, 14 F.C.C.R. at 12,903. For an overview of the Commission’s recent efforts to revise the multiple ownership rules, see Elizabeth A. Rathbun & Dan Trigoboff, Ready, Set . . . Duopoly, BROADCASTING & CABLE, Aug. 9, 1999, at 4, 4-5. 10. See Paige Albiniak, GOP Pushes Ownership Dereg, BROADCASTING & CABLE, Sept. 20, 1999, at 19, 19 (describing efforts by the major networks, large station groups, and their friends in Congress to browbeat the Commission into further rollbacks of the multiple ownership rules); Bill McConnell, NAB Offers $10M for Minority Plan, BROADCASTING & CABLE, Feb. 22, 1999, at 14, 14-15 (describing National Association of Broadcasters’ (NAB) proposal to fund minority ownership of radio and television stations and the possibility of relaxed limitations on the number of television and radio stations that a single owner could own or control)
106 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 claims that bigger is better. A systematic reconsideration of the diversity pro- ject must also include the Commission's efforts over the last thirty years to increase the number of ra cial minorities and women in the broadcasting indus try. Although the Commission's efforts to ensure that the public's airwaves are not controlled by those who engage in racial- or gender-based discrimination inued support, the Commission's untested assumptions about the diversity-enhancing effects of minority or female station ownership should be ith skepticism. Given the importance of the diver sity project, the Commission should not permit short- term political efforts d select constit cies with valuable ownership and employment opportu- nities to overshadow or endanger the long-term pro] ect of ensuring a healthy and open marketplace of ideas Part i of this article considers some of the scat tershot ways in which the Commission has attempted to promote diversity through regulation. Part II exam ines in greater detail the Commission's efforts to use race and gender as a means of furthering its di versity project, an effort that seems to be mis- ers the potential benefits as ociated with a regulatory program that maintains structural diversity among broadcast media outlets, an effort that constitutes an important, perhaps cru cial, regulatory objective. Part Iv distinguishes be tween the Commission's attempts to foster program d versity (efforts that are both ineffective and unnecessary) and its attempts to maintain structural diversity and localism (efforts that are both neces sary and laudable). Finally, Part v suggests a pro- gram of reform that would disentangle the Commis sion's regulatory efforts at enhancing and promoting diversity from its efforts to ensure nondiscrimina See generally Louis B. Schwartz, Institutional Size and Indivz Liberty: Authoritarian Aspects of Bigness, 55 NW. U. L. REv. 4, 9-14, 22- (1960)(discussing the potential ill-effects associated with corporate generally and the dangers of undue concentrations of media power in ticula 12. See infra notes 125-140 and accompanying text; see also Review of the Commission's Broadcast and Cable Equal Opportunity Rules and Policie nd Termination of the EEo Streamlining Proceding, 13 E.C. C.R. 23, 004 (1998)(notice of proposed rulmaking) [hereinafter Broadcast Cable EEO
KROTO.DOC 12/07/00 9:35 AM 106 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 claims that “ bigger is better.” 11 A systematic reconsideration of the diversity project must also include the Commission’s efforts over the last thirty years to increase the number of racial minorities and women in the broadcasting industry. Although the Commission’s efforts to ensure that the public’s airwaves are not controlled by those who engage in racial- or gender-based discrimination merit continued support, the Commission’s untested assumptions about the diversity-enhancing effects of minority or female station ownership should be met with skepticism.12 Given the importance of the diversity project, the Commission should not permit shortterm political efforts that reward select constituencies with valuable ownership and employment opportunities to overshadow or endanger the long-term project of ensuring a healthy and open marketplace of ideas. Part I of this article considers some of the scattershot ways in which the Commission has attempted to promote diversity through regulation. Part II examines in greater detail the Commission’s efforts to use race and gender as a means of furthering its diversity project, an effort that seems to be misguided. Part III considers the potential benefits associated with a regulatory program that maintains structural diversity among broadcast media outlets, an effort that constitutes an important, perhaps crucial, regulatory objective. Part IV distinguishes between the Commission’s attempts to foster program diversity (efforts that are both ineffective and unnecessary) and its attempts to maintain structural diversity and localism (efforts that are both necessary and laudable). Finally, Part V suggests a program of reform that would disentangle the Commission’s regulatory efforts at enhancing and promoting diversity from its efforts to ensure nondiscrimina- 11. See generally Louis B. Schwartz, Institutional Size and Individual Liberty: Authoritarian Aspects of Bigness, 55 NW. U. L. REV. 4, 9-14, 22-24 (1960) (discussing the potential ill-effects associated with corporate size generally and the dangers of undue concentrations of media power in particular). 12. See infra notes 125-140 and accompanying text; see also Review of the Commission’s Broadcast and Cable Equal Opportunity Rules and Policies and Termination of the EEO Streamlining Proceding, 13 F.C.C.R. 23,004 (1998) (notice of proposed rulmaking) [hereinafter Broadcast & Cable EEO Review]
No.3] ENHANCING THE SPECTRUM 107 tion by the public trustees holding licenses for broadcast stations. In the end, the Commis failure to articulate a coherent vision for its versity less electio tance and validity of the underlying policies them- selves and more a reflection of the Commission's inabili lpe interest group mulating its regulatory policies. 3 II. THE ROLE OF DIVERSITY IN MASS MEDIA REGULATION The concept of diversity is a central component of contemporary broadcast regulation. Under the author- ity vested in it by the Communications Act of 1934, the Commission regulates broadcasters using the pub- lic interest, convenience, and necessit standard For many years, the Commission has taken the view that public interest encompasses not merely a general obligation on the part of broadcasters to provide pro-social programming but also the general public's right to receive a diversity of views and informa tion over the airwaves. "6 Because physical con- straints limit the number of broadcast licenses that the Commission may issue, government regulation of the airwaves ostensibly is necessary to foster such diversity. These physical constraints are said to give rise to a m scarcity" of available electromag- netic frequencies. Accordingly, government regula 13. See generally JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC OICE TO IMPROVE PUBLIC LAK 106-30(1997): ERWIN G. KRASNOW LANRENCE D. LINGLEY THE POLITICS OF BROADCAST REGULATION 31-41(1973) 4. Pub. L. No. 73-416, 48 Stat. 1064(1934)(codified as amended .s.C.ss151-609(1994)); see also TV9,Inc.v.Fcc,495F.2d929,942 D.C. Cir. 1973)(noting that the Communications Act of 1934"is the Com- ns 5.47U.S.C.s5303,309(a) 56 National Citizens Comm. for Broad, 436 U.s. 775, 795 (1978)).The "public interest" is, like diversity, an amorphous upra note 3, at 34 ( Because the Communications Act provides no guidance he FCC, along with its supporters and critics, must redefine every few ars just what ' public interest regulation might mean in the context of the industry and the technology that exists at that specific time. ").As rofessors Krattenmaker and Powe put it: " neither the words nor history of the standard provides a useful guide to its application. Id. 497U at 566-67 (citing Red Lion Broad. Co.v ECC, 395 U.s. 367, 390(1969)). The continuing validity of " scarcity" the ory has been called into serious question. See, e. g, Nancy R. Selbst,"Un regulation" and Broadcast Financing: New Ways. for the Federal Communit tions Commission to serve the Public Interest, 58 U. CHI. L. REV. 1423, 1426
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 107 tion by the public trustees holding licenses for broadcast stations. In the end, the Commission’s failure to articulate a coherent vision for its diversity efforts is less a reflection of the importance and validity of the underlying policies themselves and more a reflection of the Commission’s inability to escape interest group politics when formulating its regulatory policies.13 II.THE ROLE OF DIVERSITY IN MASS MEDIA REGULATION The concept of diversity is a central component of contemporary broadcast regulation. Under the authority vested in it by the Communications Act of 1934,14 the Commission regulates broadcasters using the “ public interest, convenience, and necessity” standard.15 For many years, the Commission has taken the view that public interest encompasses not merely a general obligation on the part of broadcasters to provide pro-social programming but also the general public’s right to receive “ a diversity of views and information over the airwaves.” 16 Because physical constraints limit the number of broadcast licenses that the Commission may issue, government regulation of the airwaves ostensibly is necessary to foster such diversity. These physical constraints are said to give rise to a “ scarcity” of available electromagnetic frequencies.17 Accordingly, government regula- 13. See generally JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 106-30 (1997); ERWIN G. KRASNOW & LAWRENCE D. LINGLEY, THE POLITICS OF BROADCAST REGULATION 31-41 (1973). 14. Pub. L. No. 73-416, 48 Stat. 1064 (1934) (codified as amended at 47 U.S.C. §§ 151-609 (1994)); see also TV9, Inc. v. FCC, 495 F.2d 929, 942 (D.C. Cir. 1973) (noting that the Communications Act of 1934 “ is the Commission’s basic charter” ). 15. 47 U.S.C. §§ 303, 309(a). 16. Metro Broad., Inc. v. FCC, 497 U.S. 547, 567 (1990) (quoting FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 795 (1978)). The “ public interest” is, like diversity, an amorphous concept. See KRATTENMAKER & POWE, supra note 3, at 34 (“ Because the Communications Act provides no guidance, the FCC, along with its supporters and critics, must redefine every few years just what ‘public interest’ regulation might mean in the context of the industry and the technology that exists at that specific time.” ). As Professors Krattenmaker and Powe put it: “ neither the words nor history of the standard provides a useful guide to its application.” Id. 17. See Metro Broad., 497 U.S. at 566-67 (citing Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969)). The continuing validity of “ scarcity” theory has been called into serious question. See, e.g., Nancy R. Selbst, “ Unregulation” and Broadcast Financing: New Ways for the Federal Communications Commission to Serve the Public Interest, 58 U. CHI. L. REV. 1423, 1426
108 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 tions are necessary to ensure that those granted the privilege of broadcasting do not abuse that privilege by failing to operate their stations in the public Interest consistent with furthering the public interest, the Commission's regulation of broadcasters has his- torically been guided by two goals: competition and diversity. Despite the existence of these dual goals, the diversity project has served as the pri mary justification for the majority of the Commis sion's broadcast regulations, particularly its race based affirmative action regulations. More specifi- cally, the Commission's diversity regulations and policies are designed to advance three types of di versity: viewpoint, outlet, and source A. Definitional difficulties For a concept of such sweeping importance, the Commission's core definition of diversity has re mained conspicuously elusive. As used by the Commis sion over time, the concept of diversity can and does 1991)( Many courts and the Fcc [have] rejected the scarcity rationale ring the FCC's primary justification for regulation. " concept. See Charles W. Logan, Jr, Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, 85. CAL. L. REV. 1687, 1702(1997)(" Has the Supreme Court gotten the message? It may be inking in, however slowly. ") Both the desirability and the continuing validity of the scarcity rationale are beyond the scope of this article L8. See 1998 Biennial Regulat Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 f the Telecommunications Act of 1996, 13 F C.C.R. 11, 276, 11,277(para. 4) (1998)(notice of inquiry) [hereinafter 1998 Biennial Review] 9. See Metro Broad, 497 U.s. at 566("[T]he Fcc has selected the mi- nority ownership policies primarily to promote programming diver The diversity goal is separate from the goal of promoting competition. See id. (" Indeed, the Supreme Court has recently stated that al policy has long favored preserving a multiplicity of broad- tlets regardless of whether the conduct that threatens it is moti anticompetitive animus or rises to the level of an antitrust vio 1998 Biennial note 18 11,278(para.6)V point diversity occurs when the material presented by the media reflects a wide range of diverse refers to a variety of delivery services (e broadcast stations newspapers, cable and DBs) that select and present programming di rectly to the public Source diversity refers to promoting variety of program or information producers an
KROTO.DOC 12/07/00 9:35 AM 108 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 tions are necessary to ensure that those granted the privilege of broadcasting do not abuse that privilege by failing to operate their stations in the public interest. Consistent with furthering the public interest, the Commission’s regulation of broadcasters has historically been guided by two goals: competition and diversity.18 Despite the existence of these dual goals, the diversity project has served as the primary justification for the majority of the Commission’s broadcast regulations, particularly its racebased affirmative action regulations.19 More specifically, the Commission’s diversity regulations and policies are designed to advance three types of diversity: viewpoint, outlet, and source.20 A. Definitional Difficulties For a concept of such sweeping importance, the Commission’s core definition of diversity has remained conspicuously elusive. As used by the Commission over time, the concept of diversity can and does (1991) (“ Many courts and the FCC [have] rejected the scarcity rationale, thereby removing the FCC’s primary justification for regulation.” ). To date, however, the Supreme Court has proven unwilling to scrap the scarcity concept. See Charles W. Logan, Jr., Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, 85 CAL. L. REV. 1687, 1702 (1997) (“ Has the Supreme Court gotten the message? It may be sinking in, however slowly.” ). Both the desirability and the continuing validity of the scarcity rationale are beyond the scope of this article. 18. See 1998 Biennial Regulatory Review— 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, 11,277 (para. 4) (1998) (notice of inquiry) [hereinafter 1998 Biennial Review]. 19. See Metro Broad., 497 U.S. at 566 (“ [T]he FCC has selected the minority ownership policies primarily to promote programming diversity . . . .” ). The diversity goal is separate from the goal of promoting competition. See id. (“ Indeed, the Supreme Court has recently stated that ‘federal policy . . . has long favored preserving a multiplicity of broadcast outlets regardless of whether the conduct that threatens it is motivated by anticompetitive animus or rises to the level of an antitrust violation.’” ); see also 1998 Biennial Review, supra note 18, at 11,277 (para. 4). 20. See 1998 Biennial Review, supra note 18, at 11,278 (para. 6). Viewpoint diversity occurs when the material presented by the media reflects a wide range of diverse and antagonistic opinions and interpretations . . . . Outlet diversity refers to a variety of delivery services (e.g., broadcast stations, newspapers, cable and DBS) that select and present programming directly to the public . . . . Source diversity refers to promoting a variety of program or information producers and owners. Id
No.3] ENHANCING THE SPECTRUM mean a great many things: it can refer to the race or gender of a broadcast station's owners; it can refer the ideology of the owners; it can refer to the net number of separately owned media outlets, whether locally or nationally 23 it can refer to the types of programs that a particular television or radio sta tion owner broadcasts or it can refer to the sourc f broadcast programming. As will be demonstrated in greater detail below, the diversity concept means all of these things (or so the Commission would have us believe). Given its highly protean nature, the con cept of diversity in mass media regulation seems in anger of becoming so hopelessly amorphous as to verge on being meaningless. Notwithstanding this lack of clarity, the Commission invokes the concept with a egularity suggesting that, although the Commission may have difficulty defining diversity, the Commis sioners, like Justice Potter Stewart with respect to obscenity, know it when [they] see it The Commission's inability to define coherently the concept of diversity has resulted in a confused mix of regulatory policies- a regulatory gumbo that road, 497 U.s 554: Lamprecht v. FCC, 958 F 2d 382 390(D.C.cir.1992) 22. See Red Lion Broad. Co. v. FCC, 395 U.s. 367(1969) KRATTENMAKER PONE, supra note 3, at 237-75 23. See Review of the Commissions Regulations Governing Television Broadcasting, Television Satellite stations Review of Policy and Rules, 10 F.C.C.R.3524,3550-53,3573-74 paras.62-65,113-15)(1995)( further no- tice of pro See Capital 309, 316(7thc x 1994): Schurz Communications, Inc. v. FCC, 982 F 2d 1043, 1054(7th Cir 1992) 25. Jacobellis v. ohio, 378 U.s. 184, 197(1964)(Stewart, J, concur ring)i cf. Neel Devins, Congress, the FCC, and the Search for the Public tee, 56 LAK CoNTEMP. PROBS. 145, 147(1993)(describing the m public in- erest" standard as so *ill-defined that it verges on w the point of be- ing meaningless"). Some years ago, the Commission conducted a comprehensie study of its diversity policies. See Review of the Commission's Regulations Governing Television Broadcasting, Television Satellite stations Review of Policy and Rules, 10 F.C. C.R. at 3524. Incident to this project, the Com nission's staff cons idered the mish mash of policies that collectively con titute the Commission's diversity project. See id. at 3546-59 (paras. 54 80). Notwithstanding this promising start, the Commission has made litt dering its diversity programs in a comprehensive fash- ion. As Commissioner Michael K. Powell recently explained, "diversity is Governing Television Broadcasting, Television Satellite Stations Review o Policy and Rules, 14 F.C.C. R. 12, 903, 12,987(1999) (report and order) (separate statement of Commissioner Michael K. Powell)
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 109 mean a great many things: it can refer to the race or gender of a broadcast station’s owners;21 it can refer to the ideology of the owners;22 it can refer to the net number of separately owned media outlets, whether locally or nationally;23 it can refer to the types of programs that a particular television or radio station owner broadcasts; or it can refer to the sources of broadcast programming.24 As will be demonstrated in greater detail below, the diversity concept means all of these things (or so the Commission would have us believe). Given its highly protean nature, the concept of diversity in mass media regulation seems in danger of becoming so hopelessly amorphous as to verge on being meaningless. Notwithstanding this lack of clarity, the Commission invokes the concept with a regularity suggesting that, although the Commission may have difficulty defining diversity, the Commissioners, like Justice Potter Stewart with respect to obscenity, “ know it when [they] see it.” 25 The Commission’s inability to define coherently the concept of diversity has resulted in a confused mix of regulatory policies— a regulatory gumbo that 21. See Metro Broad., 497 U.S. at 554; Lamprecht v. FCC, 958 F.2d 382, 390 (D.C. Cir. 1992). 22. See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969); see also KRATTENMAKER & POWE, supra note 3, at 237-75. 23. See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 10 F.C.C.R. 3524, 3550-53, 3573-74 (paras. 62-65, 113-15) (1995) (further notice of proposed rulemaking). 24. See Capital Cities/ABC, Inc. v. FCC, 29 F.3d 309, 316 (7th Cir. 1994); Schurz Communications, Inc. v. FCC, 982 F.2d 1043, 1054 (7th Cir. 1992). 25. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring); cf. Neel Devins, Congress, the FCC, and the Search for the Public Trustee, 56 LAW & CONTEMP. PROBS. 145, 147 (1993) (describing the “ public interest” standard as so “ ill-defined” that it verges on “ the point of being meaningless” ). Some years ago, the Commission conducted a comprehensive study of its diversity policies. See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 10 F.C.C.R. at 3524. Incident to this project, the Commission’s staff considered the mish mash of policies that collectively constitute the Commission’s diversity project. See id. at 3546-59 (paras. 54- 80). Notwithstanding this promising start, the Commission has made little progress on reconsidering its diversity programs in a comprehensive fashion. As Commissioner Michael K. Powell recently explained, “ diversity is very hard to define, and is at some level a visceral concept.” Broadcast Television National Ownership Rules, Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,987 (1999) (report and order) (separate statement of Commissioner Michael K. Powell)