21 Comm. Law. 12 (2003-2004)
More than a Toaster with Pictures: Defending Media Ownership Limits

handle is hein.journals/comlaw21 and id is 72 raw text is: More Than a Toaster with Pictures:
Defending Media Ownership Limits
CHERYL LEANZA AND HAROLD FELD

The reccnt Federal Communications
Commission (FCC) vote rolling hack
virtually all of tie existing media owner-
ship limits attracted widespread attention
from the American public.' At last count,
over two million cormnunicalions were
directed to the FCC, 99 percent of them
opposed to any diminution of protection.
Nor has the furor abated with the
conclusion of the FCC's ntlenlaking,
A survey by the Pew Research Centler
for People and the Press in July 2003
showed that many people had not
known of the FCC's proceeding until
news of its release and that as they
learned of the FCC's decision, opposi-
tion to it increased.! Democratic presi-
dential canlidates have spoken out
against the FCC's decision with sitting
senators vowing to take action.3
Advocacy groups attacking the FCC's
decision have reported a sharp surge
in public support for their positions.'
At the time of this writing, the Senate
Commerce Committee has reported out
two bills rolling back the bulk of the
FCC's rules changes.! Thirty-live sena-
tors signed a resolution of disapproval,
a rare procedure under the Contract with
America Act tfat peromits Congress to
veto an agency action, and forced a vote
over the objections of the Senate leader-
ship. The resolution of disapproval
passed by a 55--40 vote over the objec-
lions of Senate Majority l[Aader Bill
Frist and Commerce Committee Chair
John McCain.
In the Ilouse, when Commerce
Commoitittee Chair Billy Tauzin refused
to consider legislation to reverse the
FCC, the Appropriations Comnittee
approved an appropriations rider to
CheI Leanza (catza@tnediaacc.ss.org)
is the Deputy Director, antd Harnold Feld
(/tfeld@,,,ediaacce.ss.org) is the Associate
Director of tiw Media Access Project
(MAP), a tonprofit, public-interest
law firm that represents consumer and
citizens groups oit telecommunications
isues. MAP opposes the FCC's JApe
2, 200.3, decision I relax media
ownership restrictions.

restore the television national ownership
cap to 35 percent. More remarkably,
the bipartisan 40-25 vote in favor of
tile amendment came in tile face of stiff
opposition from Billy Tauzin, Majority
Whip Tom DeLay, and a veto threat from
the While House. For many in Congress,
this has become a matter of principle
over party discipline, Virginia Republican
To ii Wolfe angrily declared that I did
not get elected here to be a potted plant
and I don't care how tile White lose
feels about the Amendment.' The meas-
ure passed as part ol a broader spending
bill by a vote of 400 to 2 1;1 an effort by
the Republican leadership to recruit
pledges not to override a veto failed to
garner suppot fromn the rank attd fle.'0
What has inspired such a response
froti the public? Issues of media con-
solidation go to the heart of our democ-
racy. The U.S. Supreme Court hats
stated that the widest possible dissemi-
nation of infornation fron diverse and
antagonistic sources is essential to the
welfare of the public, The Court has
applied this principle of diversity of
views as a necessary stimulus of
democracy lnd vigorous public debale
to entertainment as well as news pro-
duction.' Many fear a world in which
a few atedia gatekeepers control access
to the mass media. At best, these multime-
dia conglomerates will homogenize news
and entertanment into a single infotain-
ment package leveraged atcross tuhitc-
dia platforms and targeted primarily at
advetliser-coveted demographics. At
worst, the few media gatekeepers may
suppress news or perspectives that run
counter to their economic or ideological
interests, or to cuny lavor with the gov-
entment. The perception by the viewing
and listening public that this already had
begun it happen under the prior rules
accounts for the public's visceral reaction
against firther relaxation of the rnles.0
The Media Market is Not Competitive
Contrary to the assertions of those
favoring deregultion, the media innr-
kelplace is not open and competitive.

12 U Communicallons Lawyer 0 Fall 2003

The government prohibition oit broad-
casting without a license, together with
the economic structure of tie cable
industry, has created a highly concen-
trated market with effectively impene-
trable barriers to entry. Moreover, even
il the media marketplace were competi-
tive, legal principles as old as this
counlry hold that the precious lifeblood
of news and information deserve treat-
menrt as something more than a mere
commodity. Democracy depends upon
a competitive marketplace of ideas; it is
a compelling governmental purpose of
the highest order to take prophylactic
steps to ensure that that market does not
fail. Because the connections that allow
large corporate interests to influence
content are complex and subtle, structur-
al rules that protect diversity by frag-
menting ownership are essential. Indeed,
if media ownership restrictions were
removed, the only way to ensure diversi-
ty would be to impose explicit content
mandates and access rules. Ownership
restrictions nfier a flr more effective
means of achieving the needed diversity
to ensure a robust democracy with less
damage to the First Amendment.
Media Concentration Will Exacerbate
Existing Market Failures
Contrary to the arguments of those
favoring deregulation, the cirrenl inmtr-
ket in news and entertainment is not
marked by competitive entry or abtun-
dance. Further, the majority of media
owners are vertically integrated, multi-
national conglomerates with diverse
economic interests. Accordingly, even
excliding incompetent actors or irra-
tional ones who might make program-
uing choices based on ideology rather
than efficiency, the economic incentives
of media content suppliers do not neces-
sarily align with the interests of viewers
and citizens. Even where broadcasters
or other providers of programming rely
solely on their interests in the broadcast
markets, the results can still he detrinie-
lal to the broader cuncerns of dernocracy
and civic discourse. Two recent cases-
(Comttintsed on page 18

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