20 Berkeley Tech. L.J. 743 (2005)
Prometheus Radio Project v. FCC: The Persistence of Scarcity

handle is hein.journals/berktech20 and id is 773 raw text is: ANTITRUST

By Aaron PerZanowski
A well-informed citizenry forms the very basis of a functioning de-
mocracy.I Newspapers, radio, television, and, more recently, the Internet
serve as essential wellsprings of information for the American public. Me-
dia concentration, because it results in an ever-decreasing number of
sources of publicly available information, poses a serious threat to the de-
velopment of an informed public.
Not surprisingly, the recent efforts by the Federal Communications
Commission (FCC) to allow further consolidation among already concen-
trated sources of news and information have met with harsh and sustained
criticism.2 In 2003, the FCC called for significant deregulation of its limits
on media concentration. This Note examines these rule changes, their his-
torical context, the litigation they sparked, and their underlying justifica-
Part I traces the history of broadcast regulation, emphasizing the de-
velopment of the scarcity doctrine and the subsequent deregulatory trend.
Part II examines the FCC's 2003 rule changes and the Third Circuit's
analysis of those modifications in Prometheus Radio Project v. FCC.3 Part
III analyzes the assumptions underlying the FCC's proffered explanation
for its rule changes, ultimately concluding that they lack justification, and
offers suggestions for responsible ownership deregulation. Part IV calls on
Congress to reassert itself as the final arbiter of media policy.
© 2005 Aaron Perzanowski
The author hereby permits the reproduction of this Note subject to the Creative
Commons Attribution-ShareAlike 2.0 License, the full terms of which can be accessed at
http://creativecommons.orgllicenses/by-sa/2.0/legalcode, and provided that the following
notice be preserved: This note was first published by the Regents of the University of
California in the Berkeley Technology Law Journal's Annual Review of Law and Tech-
1. See Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S.
575, 585 (1983) (stating an informed public is the essence of working democracy).
2. See Gregory M. Prindle, No Competition: How Radio Consolidation Has Dimin-
ished Diversity and Sacrificed Localism, Note, 14 FORDHAM INTELL. PROP. MEDIA &
ENT. L.J. 279, 306-20 (2003); Brian Lowry, Viewers, It's Time to Wake Up and Smell the
Mergers, L.A. TIMES, Feb. 27, 2002, at 6-1; Media Conglomeration, N.Y. TIMES, Aug.
23, 2003, at A4.
3. 373 F.3d 372 (3d Cir. 2004).

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