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35 Fed. Comm. L.J. 117 (1983)
Economic Efficiency and Broadcast Content Regulation

handle is hein.journals/fedcom35 and id is 127 raw text is: Economic Efficiency and Broadcast Content Regulation Timothy J. Brennan* INTRODUCTION In a recent Texas Law Review article,' FCC Chairman Mark Fowler and Daniel Brenner (legal assistant to Chairman Fowler) proposed that the ownership of broadcast airwaves, and the content of television and radio programming made available over those airwaves, be determined by the market- place, rather than the federal agency traditionally charged with that task.2 This argument departs from the public trus- teeship view of the 1934 Communications Act, which deems broadcasters to be federally-licensed trustees of an essentially public resource, the radio spectrum. Although many of the authors' conclusions may be cor- rect, they employ economic theory without examining whether broadcasting markets meet the conditions for efficient eco- nomic performance. This Article sets out the conditions for efficient economic performance and examines whether they ap- ply to broadcasting, and whether content regulation is an ap- propriate remedy for potential market failures. Three purposes guide the discussion of these issues: to strengthen the arguments supporting those conclusions of Fowler and Bren- ner that are correct, to show what premises justify government intervention in broadcast content, and to illustrate how careful * Ph.D., University of Wisconsin, 1978. The author is an economist with the Antitrust Division of the U.S. Department of Justice. The comments of Robert Mc- Guckin and Phillip Warren and the clerical assistance of Helen Freitag are most appreciated. Responsibility for remaining errors is my own. The opinions ex- pressed are not necessarily those of the Department. 1. Fowler & Brenner, A Marketplace Approach to Broadcast Regulation, 60 Tex. L. REv. 207 (1982). 2. Id. at 207. 3. Id at 213-14.

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