No.3] ENHANCING THE SPECTRUM 125 son's minority status to his viewpoints. Moreover the Commission has failed to consider other means of y on sus pect race- and gender-based classifications. 27These same observations also apply to the Commission'sat tempts to vest broadcasting licenses with minority 2. Monopoly Promotes Programming Diversity The multiple ownership restrictions the Commission has imposed are effective at fostering competition in local media markets. A consequence of fostering that competition, however, might be a net decrease in the number of programming formats available within a particular media market. More specifically, broadcast ers receive their income from advertising revenues. In turn, these advertising revenues are contingent on the popularity of the station's programming with local viewers or listeners. The larger the audience the sta- tion generates, the higher the station's potential ad- vertising revenues. Broadcasters, therefore, attempt to find and air programming that will appeal to the largest possible audience. In doing so, broadcasters necessarily air programming that is likely to appeal to most people within the potential audience- that is they air programming that appeals to the majority cul ture′ s viewpoint In contrast, if a broadcast station owner owned multiple stations in a particular local market, he would be better able to target individual niche mar kets (minority culture viewpoints) via different pro gramming formats on separate stations without fearing a diminution in his core or base audience. 30 In the presence of a competing station with the same or 126. The Commission has been unable to point to a single piece of evi- dence" that links low-level employees to programming content. See Lutheran Church-Missouri syno FCC, 141 F 3d 344, 356 (D.c. Cir. 1998), see also amprecht v. FCC, 95 992)(holding that the Com mission's attempts to establish a sex-based preference were unconstitutional because the Commission failed to proffer evidence supporting a link between female ow! and "female programming") ee xt supra notes 37-67 and 130. See Schurz Comm, Inc. Fcc,982F.2d1043,1054-55(7 th Cir 1992) KRATTENMAKER POWE, supra note 3, at 40-45
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 125 son’s minority status to his viewpoints.126 Moreover, the Commission has failed to consider other means of promoting program diversity that do not rely on suspect race- and gender-based classifications.127 These same observations also apply to the Commission’s attempts to vest broadcasting licenses with minority station owners.128 2. Monopoly Promotes Programming Diversity The multiple ownership restrictions the Commission has imposed129 are effective at fostering competition in local media markets. A consequence of fostering that competition, however, might be a net decrease in the number of programming formats available within a particular media market. More specifically, broadcasters receive their income from advertising revenues. In turn, these advertising revenues are contingent on the popularity of the station’s programming with local viewers or listeners. The larger the audience the station generates, the higher the station’s potential advertising revenues. Broadcasters, therefore, attempt to find and air programming that will appeal to the largest possible audience. In doing so, broadcasters necessarily air programming that is likely to appeal to most people within the potential audience— that is, they air programming that appeals to the majority culture’s viewpoint. In contrast, if a broadcast station owner owned multiple stations in a particular local market, he would be better able to target individual niche markets (minority culture viewpoints) via different programming formats on separate stations without fearing a diminution in his core or base audience.130 In the presence of a competing station with the same or a 126. The Commission has been unable to point to “ a single piece of evidence” that links low-level employees to programming content. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 356 (D.C. Cir. 1998); see also Lamprecht v. FCC, 958 F.2d 382, 398 (D.C. Cir. 1992) (holding that the Commission’s attempts to establish a sex-based preference were unconstitutional because the Commission failed to proffer evidence supporting a link between female ownership and “ female programming” ). 127. See infra notes 252-56 and accompanying text. 128. See infra notes 257-316 and accompanying text. 129. See supra notes 37-67 and accompanying text. 130. See Schurz Comm., Inc. v. FCC, 982 F.2d 1043, 1054-55 (7th Cir. 1992); KRATTENMAKER & POWE, supra note 3, at 40-45
126 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 similar format, however, the core local audience might simply tune in to the competitor if the broadcaster d not offer a host of fairly similar programming op- tions. Preventing or limiting the ability of broad casters to own multiple stations within a single mar ket significantly impairs the ability of broadcasters to target niche audiences, primarily because doing so would result in a net loss of advertising revenue Thus, the multiple ownership restrictions can actually diminish programming diversity within a single market On the other hand, significant benefits may be as sociated with diversifying the ownership of media out- gramming formats within a particular marke, er peche ets, even if such diversification leads to fe owners of a television or radio station possess a unique ability to influence the direction of public affairs through selective coverage of contemporary events and candidates for public office. Thus, the Commission must choose a course between pursuing poll cies likely to lead to diversity in program formats and policies designed to limit the concentration of media holdings in too few hands. Because the means to each objective are directly contradictory, it is not possible to pursue both objectives simultaneously D. Divided Media Power as Public good The Framers took great pains to divide and sepa- rate political power. Not content with creating a fed eral system in which the states and the federal gov- ernment would compete for power and influence, they further divided power at the federal level by estab- lish dependent branches of ment. 33 The Framers feared that undue concentrations of political power would lead to tyranny. If it 131. See infra notes 317-38 and accompanying text; see also Review of the Comrmission's Regulations Governing Television Broadcasting: Television s ellite Stations Review of Policy and Rules, 14 F C.C.R. 12,903, 12, 914-16 paras. 21-24)(1999)(report and order) 132. See office of Comm. of the United Church of christ v. FCC, 359 F 2d 994, 998(D.C. Cir. 1966)i see also Review of the Commissions Regulations Governing Television Broadcasting: Television Satellite stations Review of Policy and Rules, Report and Order, 14 F.C. C.R. at 12,911-14 (paras. 17-21) 33. See THE FEDERALIST No. 9, at 47(Alexander Hamilton) (Random House 937)THE FEDERALIST No. 46, at 304 (James Madison) (Random House 1937)THE EDERALIST No. 47, at 312 (James Madison) (Random House 1937):THE FEDERALIST N t 335 (Alexander Hamilton James Madison)(Random House 1937) 134. See John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L
KROTO.DOC 12/07/00 9:35 AM 126 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 similar format, however, the core local audience might simply tune in to the competitor if the broadcaster did not offer a host of fairly similar programming options. Preventing or limiting the ability of broadcasters to own multiple stations within a single market significantly impairs the ability of broadcasters to target niche audiences, primarily because doing so would result in a net loss of advertising revenue. Thus, the multiple ownership restrictions can actually diminish programming diversity within a single market. On the other hand, significant benefits may be associated with diversifying the ownership of media outlets, even if such diversification leads to fewer programming formats within a particular market.131 The owners of a television or radio station possess a unique ability to influence the direction of public affairs through selective coverage of contemporary events and candidates for public office.132 Thus, the Commission must choose a course between pursuing policies likely to lead to diversity in program formats and policies designed to limit the concentration of media holdings in too few hands. Because the means to each objective are directly contradictory, it is not possible to pursue both objectives simultaneously. D. Divided Media Power as Public Good The Framers took great pains to divide and separate political power. Not content with creating a federal system in which the states and the federal government would compete for power and influence, they further divided power at the federal level by establishing three largely independent branches of government.133 The Framers feared that undue concentrations of political power would lead to tyranny.134 If it was 131. See infra notes 317-38 and accompanying text; see also Review of the Commission’s Regulations Governing Television Broadcasting; Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,914-16 (paras. 21-24) (1999) (report and order). 132. See Office of Comm. of the United Church of Christ v. FCC, 359 F.2d 994, 998 (D.C. Cir. 1966); see also Review of the Commission’s Regulations Governing Television Broadcasting; Television Satellite Stations Review of Policy and Rules, Report and Order, 14 F.C.C.R. at 12,911-14 (paras. 17-21). 133. See THE FEDERALIST NO. 9, at 47 (Alexander Hamilton) (Random House 1937); THE FEDERALIST NO. 46, at 304 (James Madison) (Random House 1937); THE FEDERALIST NO. 47, at 312 (James Madison) (Random House 1937); THE FEDERALIST NO. 51, at 335 (Alexander Hamilton & James Madison) (Random House 1937). 134. See John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L
No.3] ENHANCING THE SPECTRUM 127 prudent for the Framers to fear the ill effects of un checked political power, we should consider carefully 1 effects associated with unchecked concentrations of media power To be sure, concentrations of political power pre sent a more direct kind of threat to democracy than do concentrations of media power. That said, it is possi ble to use media power as a means of channeling, if not controlling, the flow of political power. 35The owner of a television or radio station has a unique opportunity to influence the outcomes of electoral contests- both by reporting on candidates favorably and unfavorably and through benign (or malign)ne- glect. Media exposure is like oxygen to candidates for political office, particularly at the federal level If a television station pretends that a candidate does not exist, her chances of election are considerabl reduced. 36 It is certainly true that candidates for federal office have a statutory right of access to television and radio stations. 37 Accordingly if a candidate for federal office has sufficient funds available, she can use the mass media to reach the electorate regardless f whether a particular radio or television station's owners support the candidate or her policies.. As a practical matter, however, this right of access means little in the face of concerted negative media cover age. Ross Perot, for example, spent millions of dol lars to promote his candidacy for the presidency in REV.1311,13 1403-05(1997) 135. As Professor Patricia Williams has explained T]he property of the communications industry is all about the production of ideas, images, nd cultural representations, but it also selectively silences even as it Patricia J. Williams, Comment, Metro Broadcasting, Inc. v. FC grouping in singular Times, 104 HARV. L. REV. 523, 537 (1990) 136. In this regard, consider the fate of minor party presidential candi dates.Very few readers could even name the LibertarianParty'scandidate appeared on every stae ballot S election, even though Harry Brownes name n the country. See Donald P. Baker, Third Party "Musketeers" Duel on Tv, WASH. PosT, Oct. 23, 1996, at A20. But see rkansas Educ. Television Comm. v. Forbes, 523 U.s. 666, 683(1998)(uphold- ing against a First Amendment challenge the editorial discretion of a pub icly owned and operated television station to exclude "minor" candidate rom a televised candidates debate). In the 1996 presidential election, lo cal television and radio stations did not go out of their way to disparag the Libertarian Party candidate- they simply ignored him. The net effect wa le 137.See47u.s.c.ss312(a)(7),315(1994) 138. See generally Buckley v. Valeo, 424 U.s. 1(1976)
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 127 prudent for the Framers to fear the ill effects of unchecked political power, we should consider carefully the potential ill effects associated with unchecked concentrations of media power. To be sure, concentrations of political power present a more direct kind of threat to democracy than do concentrations of media power. That said, it is possible to use media power as a means of channeling, if not controlling, the flow of political power.135 The owner of a television or radio station has a unique opportunity to influence the outcomes of electoral contests— both by reporting on candidates favorably and unfavorably and through benign (or malign) neglect. Media exposure is like oxygen to candidates for political office, particularly at the federal level. If a television station pretends that a candidate does not exist, her chances of election are considerably reduced.136 It is certainly true that candidates for federal office have a statutory right of access to television and radio stations.137 Accordingly, if a candidate for federal office has sufficient funds available, she can use the mass media to reach the electorate regardless of whether a particular radio or television station’s owners support the candidate or her policies.138 As a practical matter, however, this right of access means little in the face of concerted negative media coverage. Ross Perot, for example, spent millions of dollars to promote his candidacy for the presidency in REV. 1311, 1362-74, 1403-05 (1997). 135. As Professor Patricia Williams has explained: “ [T]he property of the communications industry is all about the production of ideas, images, and cultural representations, but it also selectively silences even as it creates.” Patricia J. Williams, Comment, Metro Broadcasting, Inc. v. FCC: Regrouping in Singular Times, 104 HARV. L. REV. 523, 537 (1990). 136. In this regard, consider the fate of minor party presidential candidates. Very few readers could even name the Libertarian Party’s candidate for president in the 1996 general election, even though Harry Browne’s name appeared on every state ballot in the country. See Donald P. Baker, Third Party “ Musketeers” Duel on TV, WASH. POST, Oct. 23, 1996, at A20. But see Arkansas Educ. Television Comm. v. Forbes, 523 U.S. 666, 683 (1998) (upholding against a First Amendment challenge the editorial discretion of a publicly owned and operated television station to exclude “ minor” candidates from a televised candidates’ debate). In the 1996 presidential election, local television and radio stations did not go out of their way to disparage the Libertarian Party candidate— they simply ignored him. The net effect was quite the same. 137. See 47 U.S.C. §§ 312(a)(7), 315 (1994). 138. See generally Buckley v. Valeo, 424 U.S. 1 (1976)
128 UNIVERSITY OF ILLINOIS LAW REVIEW [Vo 2 and 1996, but persistent negati edia covera of his candidacy significantly blunted the effective ness of those expenditures. Although money can be used to influence the outcome of elections, sometimes even distorting the process of democratic delibera- its power is significantly limited by the broadcast media's ability to drown out any message it ental This linkage between media power and political power gives rise to a compelling need to check media power to avoid disruption of the electoral process Just as unchecked political power presents an unac ceptable threat to liberty, so, too, unchecked media power requires structural controls to maintain a vi able marketplace of ideas. To the extent that the Commission's diversity policies have as their objec tive dividing and checking media power, these policies serve a critical function. Critics of the commission's policies who advocate sole reliance on market forces to protect diversity have simply failed to consider the importance of maintaining structural diversity among the electronic media as a means of enhancing de- mocracy. Of course, to concede that a strong rationale exists for structural regulations that promote diver sity within the broadcast media is not to say that the Commission's current regulations meet this need effec tively 139. This is not to say, however, that Mr. Perot's own efforts did his andidacy much good. See Kenneth T. Walsh Linda Ulman, The Gilded Age or American Politics: Millionaires Are Lining up to Run for office, U.S.NEWS WORLD REP, May 20, 1996, at 26. Although Mr. Perot spent over $60 million of his own money on his 1992 presidential campaign, he won only 198 of the popular vote. See id. Other unsuccessful candidates who have expended large cal success include Michae uffington spent $30 millio is 1994 California senate race: Steve spent $37 million 1996 primary campaign for the GOP pres" oP.primary campaign for governor of California but received only ntial nomination; and Al Checchi, who spent a record-setting $38 mil- 228 of the popular vote. See Dan Balz, Once Again, It's Okay to Be a Politi cian, WASH. POsT, June 4, 1998, at Al: Jack Germond Jules witcover, Ele tions for Sale? Not Very Often, SAN DIEGO UNION-TRIBONE, Nov. 29, 1997, at B10; Big Spenders Facing California Voters, NEWSDAY, June 3, 1998,at 140. See Owen M. Fis 97 COLUM. L 2470(1997) 141. See infra notes 317-38 and accompanying text: see also ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 56(1948)
KROTO.DOC 12/07/00 9:35 AM 128 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 1992 and 1996, but persistent negative media coverage of his candidacy significantly blunted the effectiveness of those expenditures.139 Although money can be used to influence the outcome of elections, sometimes even distorting the process of democratic deliberation,140 its power is significantly limited by the broadcast media’s ability to drown out any message it does not find congenial. This linkage between media power and political power gives rise to a compelling need to check media power to avoid disruption of the electoral process. Just as unchecked political power presents an unacceptable threat to liberty, so, too, unchecked media power requires structural controls to maintain a viable marketplace of ideas.141 To the extent that the Commission’s diversity policies have as their objective dividing and checking media power, these policies serve a critical function. Critics of the Commission’s policies who advocate sole reliance on market forces to protect diversity have simply failed to consider the importance of maintaining structural diversity among the electronic media as a means of enhancing democracy. Of course, to concede that a strong rationale exists for structural regulations that promote diversity within the broadcast media is not to say that the Commission’s current regulations meet this need effectively. 139. This is not to say, however, that Mr. Perot’s own efforts did his candidacy much good. See Kenneth T. Walsh & Linda Kulman, The Gilded Age of American Politics: Millionaires Are Lining up to Run for Office, U.S. NEWS & WORLD REP., May 20, 1996, at 26. Although Mr. Perot spent over $60 million of his own money on his 1992 presidential campaign, he won only 19% of the popular vote. See id. Other unsuccessful candidates who have expended large sums of money without generating much electoral success include Michael Huffington, who spent $30 million on his 1994 California senate race; Steve Forbes, who spent $37 million on his 1996 primary campaign for the GOP presidential nomination; and Al Checchi, who spent a record-setting $38 million on his primary campaign for governor of California but received only 22% of the popular vote. See Dan Balz, Once Again, It’s Okay to Be a Politician, WASH. POST, June 4, 1998, at A1; Jack Germond & Jules Witcover, Elections for Sale? Not Very Often, SAN DIEGO UNION-TRIBUNE, Nov. 29, 1997, at B10; Big Spenders Facing California Voters, NEWSDAY, June 3, 1998, at A19. 140. See Owen M. Fiss, Money and Politics, 97 COLUM. L. REV. 2470 (1997). 141. See infra notes 317-38 and accompanying text; see also ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 56 (1948)
No.3] ENHANCING THE SPECTRUM 129 III DIVERSITY AS RACE: A PROBLEMATIC APPROACH TO IMPLEMENTING Even conceding the utility of diversity as a cor- nerstone principle in federal broadcast regulation, the Commission's efforts to implement this goal have been wildly wide of the mark. Consider, for example the Commission's attempts to increase the number of minority-owned radio and television stations and its concurrent efforts to promote the employment of mi- orities by broadcast licensees. Using the rubric of diversity, the Commission has attempted to implement a variety of race- and gender-based programs. Although the federal courts once demonstrated a willingness to acquiesce in such efforts, recent developments suggest that this aspect of the Commission's diversity agenda ould be in grave danger In 1990, the Supreme Court issued its landmark Metro Broadcasting, Inc. V. FCC Broadcasting upheld the validity of the Commission's comparative preference and distress sale policies against ar nts that these iolated the equal protection principle implicit in the concept of due process of law. The Court held that ostensibly benign" racial classifications would pass constitu- tional muster only if the classifications " serve im- portant governmental objectives within the power of Congress and are substantially related to the achieve ment of those objectives. Applying that standard the Court concluded that programming diversity is an important governmental objective" and can a constitutional basis for the preference poll cies. "45 The Court then found program diversity sub- stantially related" to minority ownership. In so doing, however, the Court gave Congress and the FCC every possible benefit of the doubt. In fact, 143. Id. at 552; see Bolling v. Sharpe, 347 497,500(1954);seea】s U. S. CONST. amend. xIV, s 144. Metro Broad, 497 U.s. at 54 14 147. Dubin s r,supra note 97, at 849-50. As a preliminary matter. the Court noted that "[i]t is of overriding significance
KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 129 III.DIVERSITY AS RACE: A PROBLEMATIC APPROACH TO IMPLEMENTING THE DIVERSITY PROGRAM Even conceding the utility of diversity as a cornerstone principle in federal broadcast regulation, the Commission’s efforts to implement this goal have been wildly wide of the mark. Consider, for example, the Commission’s attempts to increase the number of minority-owned radio and television stations and its concurrent efforts to promote the employment of minorities by broadcast licensees. Using the rubric of diversity, the Commission has attempted to implement a variety of race- and gender-based programs. Although the federal courts once demonstrated a willingness to acquiesce in such efforts, recent developments suggest that this aspect of the Commission’s diversity agenda could be in grave danger. A. Metro Broadcasting and Diversity In 1990, the Supreme Court issued its landmark opinion Metro Broadcasting, Inc. v. FCC.142 Metro Broadcasting upheld the validity of the Commission’s comparative preference and distress sale policies against arguments that these policies violated the equal protection principle implicit in the concept of due process of law.143 The Court held that ostensibly “ benign” racial classifications would pass constitutional muster only if the classifications “ serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives.” 144 Applying that standard, the Court concluded that programming diversity is an “ important governmental objective” and can “ serve as a constitutional basis for the preference policies.” 145 The Court then found program diversity “ substantially related” to minority ownership.146 In so doing, however, the Court gave “ Congress and the FCC every possible benefit of the doubt.” 147 In fact, 142. 497 U.S. 547 (1990). 143. Id. at 552; see Bolling v. Sharpe, 347 U.S. 497, 500 (1954); see also U.S. CONST. amend. XIV, § 1. 144. Metro Broad., 497 U.S. at 549. 145. Id. at 566. 146. Id. 147. Dubin & Spitzer, supra note 97, at 849-50. As a preliminary matter, the Court noted that “ [i]t is of overriding significance . . . that the