Media Fairness: Regulation, Diversity, Reality

Media Fairness; Regulation, Diversity, Reality

Brian M. Rowland Florida Coastal School of Law Journal January 31, 2001 www.brianrowland.com

1. Introduction Frequent complaints of those who observe or scrutinize the media are cries of bias, unfairness, and agenda peddling. Such charges appear to be on the rise in recent decades. A likely contributing factor is the Federal Communications Commission’s (Commission, or FCC) relaxation of regulatory control over broadcast media content enabling broadcasters to ignore certain fairness regulations previously imposed.1 A correlative reason for concern is the Commission’s recent changes in broadcast group ownership rules. The combination of these have arguably reduced diversity of voices in the electronic media content, and conclusively reduced diversity in its ownership, raising fears that fairness has been endangered by monopolization and centralized programming control.

Should the media be held to a higher standard and be regulated into behaving with integrity? Stephen L. Carter, professor of law at Yale University, asks, “if integrity is such a good thing – and if we truly have less of it than we ought – then why not mandate it?”.2 Carter suggests that regulation of media, and especially its political Inquiry Into Section 73.1910 of the Commission’s Rules and Regulations Concerning Alternatives to the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 143, 244 (1985). 2 Stephen L. Carter, Integrity 193 (1996). 1

content, is a problematic source of embarrassment as the two are “diabolically volatile.”3

Why is fairness and diversity in media important? In our nation’s history the media was an effective tool for Samuel Adams in rallying colonists against British troops during the Revolutionary War.4 Press Now, an organization that supports free press in Central and Eastern Europe further explains that, “[w]hat can generally be asserted for most of the countries of Eastern Europe is that the media served the elites in power: they did this by misinforming the people, by creating stereotypes of enemies and the West, by ‘educating’ the masses, by interpreting Party directives and indoctrinating through ideology.5 The ideological hegemony and the monopoly on power perpetuated by the media was based on two foundations: the suppression of individual interests and the egalitarianism of poverty.”6 Cries for media fairness in the United States are generally not the result of a desire to avoid or initiate revolution, but recent history warns that the various electronic media have considerable power, and control should be diversified to a multitude of responsible gatekeepers and not subject to the central choke-point that a monopoly represents. 7 Id. ENCYCLOPEDIA BRITTANICA, ADAMS, SAMUEL; COMMITMENT TO AMERICAN INDEPENDENCE (visited Jan. 12, 2001) . 5 Press Now is a Dutch organization dedicated to free press in countries such as Bosnia-Hercegovina, Albania, Kosovo, Bulgaria, Romania, and Croatia. The Chairman of Press Now is Erik Jurgens, constitutional law professor at the Free University in Amsterdam, member of the Upper House of the Netherlands Parliament, and member of the Parliamentary Assembly Council of Europe. (visited Jan. 15, 2001) . 6 Why Should Independent Media Be Supported in Countries in Transition? Press Now (visited Jan. 15, 2001) 7 The term “choke-point” is used to describe the bottleneck effect of a monopoly upon the broadcast media. A choke-point is characterized by the ease of affecting many broadcast stations by the control of one owner , or the influence of another upon the 3 4

The essence of this inquiry is the impact of the Commission’s deregulation of broadcasting has had on content fairness and diversity since the repeal of the fairness doctrine and the liberalization of ownership rules, or whether all such regulation is made passé by new media and its accompanying technologies.8 These issues are entangled and will be examined in separate divisions below.

2. What Bias? Complaints of media bias come from various directions and concern more than just the television news industry. Bias may stem from an individualized decision of an editor or on-air talent or it may conceivably result from a centrally-controlled corporate mandate.9 Whatever the motivation for the bias, it often appears in recognizable forms10 such as the purposeful exposure of one side of a story, or the omission of seemingly worthy news items altogether. Further, bias may occur when a disingenuous association between one person or point of view and that of another is made, resulting in a false light being cast upon the former, and an untrue relationship created between the two. Finally, bias or unfairness may occur when news reporters air a story and report, in bandwagon fashion, what others are reporting without conducting their own

owner. In the opposite, when broadcasters are limited as to the quantity of stations they may own, the result is a greater diversity of owners that are less easily influenced or controlled. It is noteworthy that the Internet represents the utmost in decentralization both in the diversity of its content providers and the nature of its architecture. 8 Fairness and diversity are interrelated as will be discovered. 9 See FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137-138 (1940). The Court discusses Congressional intent in the Communications Act of 1934 to be such that Congress feared that in the absence of certain governmental licensing control, the public interest would be subordinated if monopolistic control in the broadcast industry occurred. 10 Such forms are recognizable to one who, like myself, has spent a significant time in broadcast management and programming.

independent investigation of facts. These examples are not exhaustive and are not intended to be ideological in nature. They are merely actual examples. A. One Side Of The Story On an October morning before the 2000 presidential election, my wife and I were going about our business preparing for the day. In the background NBC’s Today Show was on the television. Katie Couric, NBC Today Show hostess, announced that Texas Governor George W. Bush had begun a new series of “negative attack ads” against Vice President Al Gore. This comment alone was not substantial but what followed was incomprehensible. Without explaining the basis for Bush’s new ad or the content therein, Couric proceeded to present Gore’s responsive counter-attack ad. The fact that Gore had released a counter attack ad was not merely mentioned, the entire ad was played on the air, uninterrupted. At any moment during candidate Gore’s ad, I expected Couric or co-host Matt Lauer to interrupt with commentary. They didn’t. In the scope of about a minute one candidate was stigmatized as having launched a negative attack campaign while the other candidate was portrayed as a victim, and his responding attack-ad was broadcast free of charge! The harm may not be readily apparent to the casual observer, but when one realizes that NBC owns 13 television stations and has over 220 network affiliates, multiplied by the stations’ commercial spot

rates for 30-second morning show ads, the dollar amount in free airtime is considerable if one considers the cumulative effect.11 Television, and such pro-Democratic Party bias that may occur, is not on an island. It is easily observed that radio is overrun by those who propagate one-sided stories, generally propping up the ideology of the Republican Party. Only a few minutes listening to network radio hosts Rush Limbaugh, Dr. Laura Schlessinger, G. Gordon Liddy, Michael Savage, or Michael Reagan, proves the point.12 B. No Story At All – The Blind Eye At first impression, one might think that only a radical revolutionary would publicly declare approximately one-half of his countrymen “the real enemy.” One would certainly think that such a statement from a leader already in office would make news. It did not. The statement was in fact made by Vice President Gore in a debate with Senator Bill Bradley as both men sought the Democratic Party presidential nomination. While battling off Bradley’s personal attacks, Gore attempted to redirect the debate by asserting that Bradley’s fault-finding (with Gore) was not solving any problems and that the “real enemy” was the Republicans. 13 One has to wonder whether such a comment

For example, in Jacksonville, according to WTLV sales department estimates, the thirty-second morning show ad rate on the local NBC affiliate is $250-$300. Using these figures as an average, multiplied by 233 stations, makes for nearly a $70,000 windfall for the Gore campaign. If one adds the additional commentary which staged the ad, it is arguable that the impact of the message was greater. 11

12

It is interesting, but diversionary, to note that apparent liberal bias has primarily risen to television at the top of the media “food chain”, while conservative bias has been largely relegated to the AM radio band. 13 During the February 21, 2000, presidential primary debate in New York, a defensive Al Gore fended-off Senator Bradley’s personal attacks by stating that “[the attacks] distract us from the real enemy … the republicans.” (visited Jan. 11, 2001) .

was accidental, as it coincided with a radio commercial that was currently airing which stated “[Bradley’s] unfair negative attacks divide us at the very moment we should stand together against the real enemy --- the Republican candidates.”14 Presumably the vice president did not intend to declare actual war upon half of his countrymen, but the choice by the mainstream press15 to ignore such an inappropriate remark begs the question: what if Bush or McCain had made the same comment of Democrats? C. Disingenuous Associations The practice of making illogical connections between persons or ideas that are actually or contextually dissimilar is a subtle method of placing the original person or idea (the object) of the statement into the light of the other. Such false associations serve to chip away at the public image of the object. The comments of NBC News Reporter Lisa Myers illustrate clearly. Discussing the viewpoints of Senator John Ashcroft, the Bush nominee for attorney general, Myers reported that “Ashcroft has the same view of the Second Amendment as Timothy McVeigh.”16 What possible effect can associating Ashcroft’s view of the Second Amendment with that of McVeigh have other than to tarnish Ashcroft’s image by a false association which suggests that Ashcroft and McVeigh are of the same ilk? 17 Was not Thomas Jefferson’s view of the Second Ken Foskett, Bradley Scrambling for a Boost; But his tactics in Washington state are raising questions and McCain's bandwagon is hogging the spotlight, The Atlanta Journal-Constitution, February 25, 2000, at 20A. The article discusses a radio advertising campaign paid for by Voters for Choice in which supported candidate Gore in the democratic primary against candidate Bradley. 15 See id. One mention of Gore’s statement was reported in an Internet article on CNN.com’s All Politics. The quote was not the subject of the article and was merely placed in the final sentence of the last paragraph. 16 See Media Research Center, Campign 2000 Media Reality Check, (visited Jan.18, 2001) quoting Lisa Myers from the NBC Today Show broadcast of January 10, 2001 . 17 McVeigh was convicted of bombing the Alfred P. Murrah Federal Building in which 168 persons were killed on April 19, 1995, in Oklahoma City. 14

Amendment similar to McVeigh’s? What’s next? Will a news reporter point out that a certain politician likes wearing brown shirts just like the ones Hitler’s men wore?18 In similar fashion, public persons are frequently identified as “far left”, “liberal left”, “Christian right”, and “radical right-wing”. When such labels are tossed about by those attempting to discredit their opponents, is not the media complicit if it does not challenge the speaker? This complicity debatably allows the speaker to brand the object with a false association subtly, though possibly as effectively as the overt association NBC’s Lisa Myers made between Ashcroft and McVeigh . D. All Aboard The Bandwagon The 1996 Olympic Games in Atlanta were marred by a bomb explosion in Centennial Olympic Park on July 27, 1996, wherein one person was killed and over 100 others injured.19 The very next day, security officer Richard Jewell was touted as one of several security persons responsible for saving lives.20 Jewell’s status as post-bombing hero declined quickly to nation-wide condemnation because of the print and broadcast media’s haste to brand him as the guilty party. By July 30th, Jewell was described by the Atlanta Journal-Constitution as “a former law enforcement officer, [who] fits the profile

United Stated Holocaust Memorial Museum (visited Jan. 10, 2001). As the environmentalist parties are called “greens” and Communists are called “reds”, the German Nazional Socialist Democrat Party (nazis) were referred to as “the browns” or “brownshirts” because of the color of their dress uniforms. (visited January 10, 2001) . 19 Frank Cerabino, Centennial Park Bombing; Fans crowd city as investigators search for bomber, The Atlanta JournalConstitution, July 28, 1996, at 01S. 20 Alice Dembner and Peter S. Canellos, An Act of Terror; Games go on as bombing is probed, The Boston Globe, July 28, 1996, at A1. It is often reported that two persons died in the bombing, but one person was actually killed by the bomb while another, a Turkish television cameraman, suffered a heart attack rushing to get to the scene to videotape the aftermath. 18

of the lone bomber. This profile generally includes a frustrated white man who is a former police officer, member of the military or police ‘wannabe’ who seeks to become a hero.”21 After Jewell was cleared of suspicion by the United States Department of Justice in October of 1996,22 a multitude of lawsuits ensued in which Jewell charged the likes of NBC, ABC/CapCities, The New York Post, CNN, and Cox Enterprises with defamation or libel per se.23 The Jewell case is brought forth as an example of a sort of press bandwagon effect where it is apparent that reporters were biased by the groundswell of the public opinion they help to create. It is not within the scope of this inquiry to delve into the actual legal issues and case rulings of the lawsuits filed by Richard Jewell, however it is incredible to look back at what was said by the media about this man before his exoneration by the Department of Justice. Tom Brokaw, news anchor of NBC said, “[t]he speculation is that the FBI is close to making the case. They probably have enough to arrest him right now, probably enough to prosecute him, but you always want to have enough to convict him as well. There are still some holes in this case.”24 In her July 31, 1996 New York Post column, Kathy Scruggs and Ron Martz, FBI Suspects ‘Hero’ Guard May Have Planted Bomb, The Atlanta Journal-Constitution P.M. Edition, July 30, 1996. 22 Roberto Suro, The FBI Questions Its Own Tactics With Jewell, Chicago Sun-Times, November 11, 1996 at 4. In this article concerning primarily the FBI’s tactics in questioning Richard Jewell, the author cites that Jewell received a letter from the Justice Department dated October 26, 1996, clearing him of suspicion. 23 BLACK’S LAW DICTIONARY 916 (6th ed. 1990). Libel per se occurs when words are of such a character that an action may be brought upon them without the necessity of showing any special damage, the imputation being that the law will presume that anyone so slandered must have suffered damage. 24 Media Libel, Cases and Conflicts, Richard Jewell v. NBC, and other Richard Jewell cases (visited on Jan. 19, 2001) . 21

Andrea Peyser wrote, “Who checked ‘Rambo’ crossing guard’s record? … Richard Jewell, the Olympic security guard who’s reportedly turned into a prime suspect for Saturday’s deadly bombing, had a reputation for being the village Rambo in Habersham County … He was a fat, failed former sheriff’s deputy who spent most of his working days as a school crossing guard, and yearned to go further. But he lost his job on the county force, after six years when he wrecked a squad car.”25 Jewell settled out of court with CNN for the broadcast of such statements as: “…a bizarre employment history and an aberrant personality…”26 Such statements demonstrate that there are occasions where the print and broadcast media tend to stoke their own momentum in a story and lose sight of the fact that their words have the power to destroy lives. This effect, which I’ve labeled “bandwagoning”, appears to cause reporters to lose sight of the truth in favor of expediency, sensation and the desire not to be left behind by competitors. 3. Foundational Information In a free society can there ever be a preventive cure for the types of unfairness and bias the print and broadcast media occasionally exhibit? Should private citizens like Richard Jewell be forced to rely on remedial cures to prevent the press from conducting repeat performances? See Richard Jewell v. New York Post, 23 F.Supp 2d 348, 380 (S.D.N.Y. 1998). Leonard Pallats, Jewell Settles with CNN; Sues Atlanta Newspapers, former employer, The Danbury News-Times, Jan 29, 1997, (visited January 19, 2001) . 25 26

After developing a sense of the types of unfairness and bias which occur, it is necessary to examine a few applicable fundamentals of First Amendment and Communications law. The fairness doctrine, freedom of the press, the public interest concept, and the marketplace of ideas are appropriate starting points. A. The Fairness Doctrine The doctrine is more deeply explored below, however for purposes of introduction, a brief explanation is warranted. The fairness doctrine is the earmark of broadcast media’s weakened constitutional status as compared to other media such as cable, print and the Internet. “The doctrine gives the government the authority to oversee broadcasters’ coverage of controversial issues of public importance.”27 When originally enacted the doctrine was thought to expand broadcasters’ rights because prior to the doctrine, broadcasters were under a complete ban on editorializing.28 In its original form, the doctrine imposed dual responsibilities upon broadcast licensees. Broadcasters were required to devote reasonable time to the coverage of public issues, and it was incumbent upon them to give air time for opposing points of view.29 B. Freedom of the Press

Henry L. Zuckman et al., Modern Communications Law, § 14.5, at 1234 (1999). See id. 29 See Syracuse Peace Council, et al. v. FCC, 867 F.2d 654, 655 (U.S. App. D.C. 1989). 27 28

For purposes of this inquiry, the press’s right to access information is not immediately relevant, rather its freedom from prior restraint is preeminent. A prior restraint is the imposition of a governmental restraint on a publication or speaker before publication or speech occurs.30 Justice Holmes in Patterson v. Colorado, considered the free press guarantees of the First Amendment to prevent all prior restraints upon publications as had been practiced by other governments.31 The essence of Holmes’ belief was that restrictions on the press prior to publication should not be sustained, instead he believed that statements contrary to the public welfare should be punished after their publication.32 Subsequently, the Court expressed its opinion that prior restraints “[bear] a heavy presumption against [their] constitutional validity.”33 In the broadcast context, the rights of a free press have experienced a fundamental shift over time from a right inhered in the public to “receive suitable access to social, political, esthetic, moral and other ideas,”34 to a curious position Justice Brennan once took where he referred to the public’s right to receive a balanced presentation of views

See generally Near v. Minnesota, 283 U.S. 697 (1931). See Patterson v. Colorado, 205 U.S. 454, 462 (1907). 32 See id. 33 See Bantam Books Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (declaring unconstitutional the activities of commission created by the Rhode Island legislature that warned book distributors of objectionable books in effort to thwart their distribution in the state). 34 See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). The Court upheld the Fairness Doctrine’s personal attack rules against Red Lion’s WGCB after it carried a 15 minute broadcast by the Reverend Billy James Hargis wherein Hargis attacked author Fred J. Cook. Red Lion failed to meet its Fairness Doctrine obligation allowing Cook rebuttal time. The Court approved the Doctrine’s right to reply provisions for persons who were personally attacked and for editorial response. In it’s ruling the Court established a less than strict level of scrutiny for content-based broadcast regulation stating that such regulation was valid only if narrowly tailored to further a substantial government interest. 30 31

in the past tense,35 to the present position where the Court openly recognizes broadcasters’ freedom of expression.36 Acknowledgement of broadcasters’ rights to free expression was fortified when the United States Court of Appeals for the District of Columbia upheld the Commission’s decision not to enforce the doctrine stating that “[i]n sum, the fairness doctrine in operation disserves … the broadcaster’s interest in free expression.”37 Driving the point home, Judge Starr in his concurrence in Syracuse Peace Council, pointed out that the Commission interpreted the Court’s decision in Red Lion Broadcasting Co. v. FCC, as rendering the doctrine unconstitutional if regulation “(1) chills speech and results in the net reduction of the presentation of controversial issues of public importance and (2) excessively infringes on the editorial discretion of broadcast journalists and involves unnecessary government intervention to the extent that it is no longer narrowly tailored to meet its objective.”38 From these examples it is arguable that the focus of free press rights concerning broadcast licensees has shifted over time from one which previously viewed such rights as held by the public at large to receive fair and balanced information to one which now recognizes the free expression rights of broadcasters. See FCC v. League of Women Voters, 468 U.S. 364, 380 (1984). In the final paragraph of section II, Justice Brennan curiously referred to the public’s First Amendment interest in receiving a balanced presentation of views, as a restriction on the press whose nature “has” been to secure such access by the public. It is not apparent whether this reference to the public’s interest was intentionally placed in the past tense or merely interestingly placed therein. 36 See generally In Re Syracuse Peace Council, 2 F.C.C.R. 5043 (1987). 37 See Syracuse Peace Council v. FCC at 659. 38 See id at 682 (Starr, J. concurring). 35

C. Public Interest Radio and television broadcasting licensees have been regarded as operating in the public interest.39 The public interest standard was originally set forth in the Radio Act of 1927,40 and was later recognized by Justice Frankfurter as the “touchstone” of authority for the FCC.41 “[T]he weighing of policies under the ‘public interest’ standard is a task that Congress has delegated to the Commission in the first instance,”42 however it should be noted that the Commission’s view of what is actually in the public interest does change, as commission personnel changes, and their underlying philosophies and experiences differ.43 The public interest standard is rooted in the limited capacity of the electromagnetic spectrum, conveniently labeled - “scarcity”.44 Scarcity stems from the fact that more individuals wish to hold broadcast licenses than can be permitted. This result is due to limited spectrum bandwidth which results in a limitation of allocable broadcast frequencies45 in order to avoid signal interference.46

BLACK’S LAW DICTIONARY 1229 (6th ed. 1990), generally defines a public interest as one that is granted by public permission, making use of public property requiring the permitted to bear an affirmative obligation to deal with the public on reasonable terms. 40 Radio Act of 1927, Pub. L. No. 632, §11 (1927). 41 See FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137-138 (1940) (holding that it was outside the scope of the court's power to dictate procedures or priorities of applications to petitioner under the Communications Act, and stating that judicial review of agency actions was limited to correction of legal errors). 42 See FCC v. Nat'l Citizens Comm. for Brdcst., 436 U.S. 775, 810 (1978). 43 See Pinellas Broadcasting Co. v. FCC, 230 F.2d 204, 206 (U.S. App. D.C. 1956), cert. denied, 350 U.S. 1007 (1956). 44 See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-376 (1969). The Court discusses the fact that prior to the Radio Act of 1927, the private sector chaotically attempted to allocate frequencies to broadcasters. Footnote 5 containing the comments of Congressman White are especially predictive of the necessity for regulation based upon a public interest standard. 45 See id. at 383. 46 See id. at 388. 39

The FCC’s desire for diverse voices on the air also drives the public interest standard. In the Commission’s 1953 Amendment of Multiple Ownership Rules, this position was amplified by the FCC’s declaration that the fundamental purpose of the rules was “to promote diversification of ownership in order to maximize diversification of program and service viewpoints as well as to prevent undue concentration of economic power contrary to the public interest.”47 D. The Marketplace of Ideas Justice Holmes viewed free speech and press as a function of a marketplace of ideas whereby “the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”48 Holmes emphatically believed that “we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”49 The marketplace of ideas proposes that speech should be protected from government interference because exposing the public to different viewpoints is the best way to discover truth. The

See Amendment of Multiple Ownership Rules (Docket No. 8967), 18 FCC 288 (1953). See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting). 49 See id. 47 48

marketplace metaphor has dominated the Supreme Court’s interpretation of the First Amendment in the days since Abrams v. United States.50 4. Exploration: Issues & Standards Certain questions come to mind before approaching the legal detail-work of the fairness doctrine, diversity, the Commission’s relaxation of ownership rules, and the effects of new media. 51 Armed with the fact that for decades the FCC considered the broadcast media a scarce commodity and utilized that principle to underlie strict ownership policies and certain content regulation, how or why was such a scheme undone? Did scarcity truly disappear? Does broadcasting no longer embody unique qualities, such that the vast quantity of “voices” brought on by the Internet now evens the “diversity of voices” playing field? How do the years of focus on diversity square with the Commission’s recent deregulation of ownership rules? Much of FCC policy seems diametrically opposed. Perhaps it has been driven by the private interests of the National Association of Broadcasters, the shift in the Court’s analysis of the First Amendment rights of broadcasters, an increasing unmanageability of the broadcast spectrum, the onslaught of new media and technology, or some combination of these and other factors. Donald E. Lively et al., Constitutional Law: Cases, History, and Dialogues 940 (2d ed. 2000). Forthcoming questions are issues derived from personal observations after 17 years in the radio broadcast industry in positions of management and ownership of stations. 50 51

5. The Doctrine in Depth The fairness doctrine required a broadcast licensee to provide coverage of vitally important controversial issues of interest in their local community and to provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues.52 The fairness doctrine spawned several corresponding doctrines which also affected broadcasters.53 Those included the Cullman doctrine which provided that when only one side of a controversial issue was presented during a sponsored program, the other side must be presented even if no one was willing to pay for the presentation.54 The Zapple doctrine dictated that stations that sold time to political supporters of one candidate during an election campaign were required to provide equal time to supporters of the candidate’s opponent(s).55 When broadcasters politically endorsed or opposed candidates, they were required to notify the subject and offer equal time to respond.56 Under the personal attack rule, a broadcaster was obliged to notify and offer equal time to the victim of an on-air attack wherein that person’s honesty, character, integrity of similar personal qualities were attacked during the broadcast of a program concerning a controversial issue of public importance.57

FCC Fairness Report, 48 FCC 2d 1 (1974). See ZUCKMAN, supra at 1235. 54 Id. Citing to Cullman Broadcasting Co., 40 FCC 576 (1963). 55 Id. Citing to Letter to Nicholas Zapple, 23 FCC 2d 707 (1970). 56 47 C.F.R. § 73.1930 (1997). 57 Id. § 73.1920. 52 53

After nearly forty years in force,58 in 1985 the FCC began to dismantle portions of the fairness doctrine. Preceding partial repeal, the commonly held notion of spectrum scarcity as the rationale for retaining fairness regulation began to erode as the FCC started to interpret the public interest standard under the “marketplace of ideas” concept. FCC Chairman Mark Fowler took the position that regulation was necessary only when the marketplace failed to protect the public interest.59 In the Commission’s Inquiry Into General Fairness Doctrine Obligations (1985 Fairness Report), the Commission concluded that the doctrine “operated to chill broadcaster speech on controversial issues and that recent increases in broadcasting outlets undercut the need for the doctrine.”60 This decision was not based on Constitutional grounds, rather it was policy made by congressionally delegated power and FCC expertise. Interpreting the 1985 Fairness Report the Federal District Court in Syracuse Peace Council stated that “the fairness doctrine in operation disserves both the public’s right to diverse sources of information and the broadcaster’s interest in free expression. Its chilling effect thwarts its intended purpose, and it results in excessive and unnecessary government intervention into the editorial processes of broadcast journalists.”61 In Syracuse Peace Council, the court emphasized The Fairness Doctrine was initiated by an FCC report dated 1946, entitled Public Service Responsibilities of Broadcast Licensees. See Mark S. Fowler & Daniel L. Brenner, A Marketplace Approach to Broadcast Regulation, 60 Tex. L. Rev. 207 (1982). Critical of the use of the public interest standard to impose programming restrictions, they concluded that in light of advances in electronic radio technology, the scarcity rationale was no longer viable and that the marketplace, the listeners and viewers should define the public interest. In their view, the public interest standard abridged broadcasters' First Amendment rights. 60 See Syracuse Peace Council at 660. 61 Id. at 559. 58 59

that its reasoning to support the FCC’s decision to partially repeal the doctrine was particularly based on the Commission’s findings that “increased diversity of [broadcast] outlets and programming, [gave adequate grounds for] removal of the first prong [of the fairness doctrine].”62 By 1999, the last effective remnants of the fairness doctrine were the personal attack and political editorial rules.63 The Commission came under increasing pressure from the United States District Court for the District of Columbia to “explain why the public interest would benefit from rules that raise [certain] policy and constitutional doubts.”64 In response, in early October 2000, the Commission suspended its political editorial and personal attack rules for 60 days.65 One week later, the District Court issued a writ of mandamus directing the Commission to immediately repeal the rules, permanently.66 6. Diversity of Ownership With or without the fairness doctrine in force, the FCC has also sought to satisfy the public interest standard and ensure a diverse mix of voices in the marketplace with

See Syracuse Peace Council at 669. This notion, recognized by the court in which the FCC justifies its actions based on diversity, sets the stage for one of the primary curiosities in FCC regulative history. It is notable at this point that such diversity was underpinned by strict ownership limitation rules sharply limiting the quantity of outlets and overlap of signals in which one entity could be licensed. 63 See Radio-Television News Dir. Ass’n v. FCC, 229 F.3d 269 (U.S. App. D.C. 2000). 64 See Radio-Television News Dir. Ass’n v. FCC, 184 F.3d 872, 882 (D.C. Cir. 1999). In August of 1999, the District Court held that it was incumbent upon the Commission to explain why the public interest would continue to benefit from fairness regulations. The Court was concerned with government entanglement in day to day media operations and interference with the editorial judgment of professional journalists. 65 FCC News Release, FCC Suspends Political Editorial and Personal Attack Rules for 60 Days, (Oct. 4, 2000). The Commission ordered a 60 day suspension of the personal attack and political editorial rules, rejecting discussion in Syracuse Peace Council v. FCC which kept the attack and editorializing prongs of the doctrine in effect. Interestingly, the Commission’s decision paved the way for unchecked editorial content to be broadcast a mere month before the 2000 presidential election. 66 See Radio-Television News Dir. Ass’n v. FCC, 229 F.3d 269, 272 (U.S. App. D.C. 2000). The Appellate Court, frustrated that the FCC had not appropriately responded to its request in the District Court, pointed out that the petitioner’s request for the rules to be vacated had been pending since 1980! After declaring the FCC’s action “unreasonably delayed”, the Court issued the writ. 62

rules that limited the number of broadcast stations an entity may operate and by utilizing minority-friendly licensing policies to enhance the number of minority owned broadcast stations. The Commission, in 1953, set forth strict regulations limiting to seven the number of FM, AM, and TV stations one entity could own.67 Later, in 1986, the Court upheld the use of minority preferences in the broadcast licensing process. These preferences lasted until 1995.68 The combination of ownership limitations and minority preferences in license allocation worked to assure diversity of voices on the air. A. Foundations For Diversity The need for diverse voices in media to protect the public interest is well documented. The First Amendment, said Judge Learned Hand, “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.”69 “[The] Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society … Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing See ZUCKMAN, supra at 1199-1201. Describes the beginnings of ownership limitation rules and their subsequent evolution. An operator could own seven FM, seven AM, and seven TV stations, with a limit to the ability to combine stations in one market to one AM and FM, but not an AM, FM, and TV. Some operators were grandfathered in with 3-way combinations, and some waivers were permitted. 68 See Adarand Constructors, Inc., v. Pena, 515 U.S. 200, 231 (1995) (calling for strict scrutiny for federal as well as state and local governmental acts which seek to employ race-conscious criteria to achieve remedial action favoring minorities). 69 See New York Times v. Sullivan, 376 U.S. 254, 270 (1964) citing to United Stated v. Associated Press et al., 52 F.Supp 362, 372 (S.D.N.Y. 1943). 67

is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.”70 B. Media Monopolization Marches Forward Despite forewarned perils of concentrated ownership and control of the electronic media,71 in 1985 the Commission raised the number of TV, AM and FM stations one entity could own to twelve apiece. The number of FM and AM stations was increased to eighteen in 1992, and to twenty in 1994.72 Later, the Telecommunications Act of 1996 eliminated all numerical limits for the ownership of radio stations. After 1985, the Commission took a different track with TV ownership rules and prohibited an owner from holding multiple television stations which had an audience reach of greater than twenty-five percent in a single market. Jacksonville, Florida is near the median of the top 100 radio markets in America.73 In Jacksonville, there are currently three ownership groups that own seventeen of the local commercial radio stations, and the remaining stations that reach the market are situated either outside of the market, broadcast during daytime hours only, or are local stations of inferior signal strength.74 In second largest radio market, Los Angeles, Infinity Broadcasting and Clear Channel Communications each own eight commercial radio See Associated Press et al. v. United States, 326 U.S. 1, 20 (1945). See Pottsville supra note 2. 72 See ZUCKMAN supra at 1200. 73 Jacksonville is the 52nd largest radio market in the United States as determined by The Arbitron Company. (visited Jan. 21, 2001) . 74 The Radio Locator (visited January 20, 2001) < http://www.radio-locator.com>. By entering the city and state into the search engine, one can determine what stations are in a given market, who owns them, what their signal strength is, and what their licensed operating hours are. 70 71

stations while the two next largest stakeholders in the market merely own three apiece.75 At the other end of the market-size spectrum, in Brunswick, Georgia, the 282nd largest radio market76, one local owner holds six stations, while the two other local commercial stations are each owned by separate persons or entities.77 Standing alone, such numbers may not impress. However if one considers that prior to the unraveling of the FCC’s broadcast ownership rules, the most any one person or entity could hold in a market was a single AM and FM license, and at most a total of seven apiece nationwide, diversity in ownership clearly has become a relic of the past as media ownership consolidation has caused an implosion in the number of individual licensees nationwide.78 As for television ownership, the Commission did relax rules enough to allow ownership of more than one station per market by a single owner in special circumstances. “The new FCC standards will allow dual ownership in cities where there are a sufficient number of media voices, which include all radio and TV stations, large daily newspapers and cable systems. Specifically, a city must have at least eight independently owned television stations for one company to own two. And a company cannot own more than one of the four top-rated stations in any market.”79

See id. The Arbitron Company (visited Jan. 21, 2001), . See id. 78 See note 89 infra. 79 Bill Carter, The Media Business; FCC Will Permit Owning 2 Stations In Big TV Markets, N.Y. Times, August 6, 1999, A1. 75 76 77

The FCC’s recent relaxation of its ownership rules has been designed to provide clear, “commonsense rules that recognize the dramatic changes [in] . . . the media marketplace” —in order to “provide broadcasters with flexibility to seize opportunities and compete in this increasingly dynamic media marketplace . . . [and] help preserve free local broadcast service.”80 The Commission has attempted to counteract any reduction in diversity of ownership resulting from the relaxed television rules by allowing a “new entrant bidding credit” as part of their broadcast license auction procedures.81 C. The Minority Voice To enhance diversity by increasing minority ownership, the Commission issued its 1978 Policy Statement. The statement enunciated the use of comparative hearing preferences favoring minority applicants, the distress sale policy, and the award of tax certificates to the owners of broadcast or cable systems that sold their properties to minority-controlled businesses.82 The policies set forth by the 1978 Policy Statement to increase the level of broadcast facility ownership by minorities, defined minorities as “Black, Hispanic Surnamed, American Eskimo, Aleut, American Indian, and Asian American extraction.”83

In the Matter of Review of the Commission's Regulations Governing Television Broadcasting, Report and Order, 14 FCCR. 12903, (1999) (Comm’r Kennard concurring). 81 Id. at para 13 (1999). 82 Statement of Policy on Minority Ownership of Broadcast Facilities, Public Notice, 68 FCC2d 979 (1978). 83 See Metro Broadcasting Inc., v. FCC, 497 U.S. 547, n1 (1990) (upholding the FCC’s minority preference - comparative hearings and distress sale policies). 80

First, the comparative hearing minority preference policy worked by adding minority ownership to the criteria set forth in the Commission’s 1965 Policy Statement.84 This “‘plus’ [was] awarded only to the extent the minority owner actively participate[d] in the day-to-day management of the station.”85 Second, the distress sale was a plan which eliminated the existing policy that “a licensee whose qualifications to hold a broadcast license [that had] come into question [could] not assign or transfer that license until the FCC ha[d] resolved its doubts in a non-comparative hearing.” Instead, “[t]he distress sale policy [was] an exception to that practice, [which allowed] a broadcaster whose license ha[d] been designated for a revocation hearing, or whose renewal application ha[d] been designated for hearing, to assign the license to an FCC-approved minority enterprise.”86 Finally, tax certificates were offered to broadcasters that sold their properties to organizations with a minority ownership share of over 50%. The certificates “permit[ted] sellers of broadcast properties to defer capital gains taxation on a sale whenever it [was] deemed necessary or appropriate to effectuate a change in a policy of, or the adoption of a new policy by, the Commission with respect to the ownership and control of radio broadcasting stations.”87

Policy Statement on Comparative Broadcast Hearings, Public Notice, 1 FCC2d 393 (1965). The Commission set forth various factors to be examined when awarding a broadcast license. Such factors included; diversification of control, full-time participation in station operation by owners, proposed program service, past broadcast record, and efficient use of frequency. 85 See Metro Broadcasting at 557. 86 See id. 87 See id. at n19. 84

The 1990s were ushered in by the Supreme Court’s confirmation of the legitimacy of the FCC’s comparative hearing and distress sale policies in Metro Broadcasting, Inc., v. FCC. An important aspect of Metro Broadcasting was the Court’s adoption of the intermediate standard of review for determining the validity of the racial classification policies mandated by Congress. In declaring the standard, Justice Brennan stated that “[w]e hold that benign raceconscious [sic] measures mandated by Congress -- even if those measures are not ‘remedial’ in the sense of being designed to compensate victims of past governmental or societal discrimination -- are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.” 88 In Adarand Constructors,Inc., v. Pena, Justice O’Connor led the Supreme Court’s majority opinion overruling Metro Broadcasting, stating that strict scrutiny must be applied to race-based affirmative action plans and that “Metro Broadcasting undermined important principles of this Court’s equal protection jurisprudence, established in a line of cases stretching back over 50 years.”89 In Adarand, which concerned minority set-aside programs in the construction industry, the plaintiff claimed that “the Federal Government’s practice of giving general contractors on Government projects a financial incentive to hire subcontractors controlled by ‘socially and economically disadvantaged individuals,’ and in particular, the Government’s use 88 89

See id. at 564, 565. See Adarand supra at 231.

of race-based presumptions in identifying such individuals, violates the equal protection component of the Fifth Amendment’s Due Process Clause.”90 D. Questioning Change Curiously, after creating sizable monopolies for a handful of broadcasters91 with the elimination radio ownership limits, relaxing the television ownership rules, and the loss of minority preference licensing programs in Adarand, the FCC continues to maintain that “[o]ne of the most important purposes of our multiple ownership rules is to encourage diversity in the ownership of broadcast stations so as to foster a diversity of viewpoints in the material presented over the airwaves.”92 How does a commitment to diversity square with regulations which, in the case of radio, have radically reduced the number of individual licensees? Does such a scheme benefit any but the well-heeled who’ve been effectively given a green light to buy out their competitors? In December 2000, recognizing that diversity of ownership has decreased, the FCC requested further studies on the effects of minority ownership of the Telecommunications Act of 1996.93 7.

The Demise Of Scarcity – The Rise Of The Internet

See id. at 204. As an example, Clear Channel Communications operates 900 radio and 19 television stations in America. Harkening back to the day when an owner could only own a total of 14 radio stations (7 AM, and 7 FM), this shows that Clear Channel’s current holdings at minimum have eliminated 63 owners – and that is only if each of the former 63 owned the maximum 14 stations! Clear Channel ownership data acquired from corporate home page (visited January 21, 2000) . 92 In the Matter of Review of the Commission's Regulations Governing Television Broadcasting, Report and Order, 14 FCCR. 12903, para 17, (1999). 93 Paige Albiniak, Kennard Pushes For Inclusion; FCC Dems want changes to boost minority media ownership, Broadcasting and Cable, Dec. 18, 2000, at 38. 90 91

As noted, the Commission and the courts have reasoned their regulatory efforts to enhance diversity of ownership and content with the notions of spectrum scarcity.94 “Given an architecture of spectrum allocation, more regulation is justified, since someone must make choices about allocation.” 95 However, the notion that the electromagnetic spectrum is scarce has come into question, and because of this, doubt in the continued validity of the scarcity rationale resounds, and the foundation of related FCC broadcast regulation is in disrepair. If the electromagnetic spectrum is in fact on the verge of no longer being scarce, this should spell fewer limitations to access and ultimately translate to increased diversity. What might cause this reversal of scarcity? A.

Spectrum Scarcity; Is The Patient Dead Yet?

In 1986, in Telecommunications Research and Action Center v. FCC, Judge Bork diminished the concept of spectrum scarcity when he compared the characteristics of the broadcast and print media, and proclaimed that scarcity is “a distinction without a difference.”96 He added that “[e]mploying the scarcity concept as an analytical tool, particularly with respect to new and unforeseen technologies, inevitably leads to strained reasoning and artificial results.”97 “All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into the Donald E. Lively et al., Communication Law: Media, Entertainment, and Regulation 297 (1997). Lawrence Lessig, Code And Other Laws Of Cyberspace 183 (1999). 96 See Telecommunications Research and Action Center v. FCC, 801 F.2d 501, 508 (D.C. Cir. 1986), cert denied, 482 U.S. 919 (1987). 97 Id. 94 95

production and dissemination of print journalism. Not everyone who wishes to publish a newspaper, or even a pamphlet, may do so. Since scarcity is a universal fact, it can hardly explain regulation in one context and not another. The attempt to use a universal fact as a distinguishing principle necessarily leads to analytical confusion.”98 Bork’s logic carries him to the conclusion that the scarcity argument for governmental regulation of broadcast licensees is an incapable rationale for broadcast content regulation.99 The following statements reveal Judge Bork’s mindset in Telecommunications Research:

“[W]hile scarcity characterizes both print and broadcast media, [some suggest that] the latter must be operating under conditions of greater “scarcity” than the former. This, however, is unpersuasive. There is nothing uniquely scarce about the broadcast spectrum.”100

“Neither is content regulation explained by the fact that broadcasters face the problem of interference, so that the government must define usable frequencies and protect those frequencies from encroachment. This governmental definition of frequencies is another instance of a universal fact that does not offer an explanatory principle for differing treatment. A publisher can deliver his

Id. Id. at 509. 100 Id. at 508. 98 99

newspapers only because government provides streets and regulates traffic on the streets by allocating rights of way. Yet no one would contend that the necessity for these governmental functions, which are certainly analogous to the government’s function in allocating broadcast frequencies, could justify regulation of the content of a newspaper to ensure that it serves the needs of the citizens.”101

Given the technology of 1986, Bork’s logic seems baffling. Beyond efforts to increase the number of licensees by reducing standards for interference,102 there was simply no possible way the government could continue to allocate more and more frequencies for broadcast use. To put it in layman’s terms, a publisher is free to toss his newspaper on the lawn of one who already receives the newspaper of his competitor, but one who wishes to broadcast cannot legally hijack the frequency licensed to another and start his own radio or television service. The fact that the fundamental tools and supplies to produce a newspaper are scarce resources is considerate recognition of the expenses related to publishing, however the physical impossibility of transmitting more than one message on the same broadcast frequency is a law of nature that Bork brushed aside. B. TCP/IP – A Stake In The Heart Of Scarcity, A Savior For Diversity

101

Id. at 509.

102

See generally In the Matter of Modification of FM Broadcast Station Rules to Increase the Availability of Commercial FM Broadcast Assignments. BC Docket No. 80-90, 78 F.C.C.2d 1235, para 7 (1980).

The Internet is a communications revolution. 103 With minimal barriers to entry the Internet permits diversity of views to be communicated on a global scale. The technology of the Internet holds keys to the possible shattering of barriers to entry into the electronic broadcast media. As a result, the effect of the Internet on notions of media fairness and diversity are twofold (at least). It’s unlikely one may ascertain accurate numbers as to how many persons log-on, how many websites are designed and uploaded, or how the volume of electronic mail travels upon the Internet on a daily basis. The Google search engine has now counted 1.3 billion web pages.104 Content diversity is steadily increasing. How this type of global diversity affects the Commission’s regulation of the allocation of broadcast licenses and the inherent fairness of broadcast content is unsettled. Whether it should weigh in to the equation can be hotly debated. Meanwhile, certain technologies used by the Internet are being proposed for use in the propagation of radio and television signals. One such proposal would undercut much of the logic and foundational principles from the FCC’s regulatory scheme. Typically, broadcast interference occurs when two or more signals are propagated on the same or adjacent frequencies in the same geographic area. When this occurs, signals It is critical for the reader to understand the basic architecture of the Internet at this time. Put in its simplest form, when a file (email, web page, etc) is sent over the Internet, it does not travel on one wire as a single file. Instead, it is broken into packets. Each packet “knows” the address of the destination computer, and each packet finds its own way to that destination. When all the packets reach the destination they are reassembled into the single file. This creates an architecture which represents the opposite of the “choke-point” theory which has been mentioned above. If one path is “down”, the data simply finds another route. 104 Thomas E. Weber, E-World; Net’s Explosive Growth Spurs Entrepreneurs To Build Better Links, The Wall Street Journal, Dec. 4, 2000 at B1. 103

are cancelled out and are not listenable.105 Stanford Law Professor Lawrence Lessig106 claims that the problem of interference is actually caused by dumb receivers, not conflicting signals. He states that if broadcast receivers were designed so that they knew which message to focus on, interference would cease and spectrum scarcity would be nonexistent.107 Lessig’s idea works because it would transform the nature of the architecture of the broadcast paradigm into a packeted data distribution model not unlike TCP/IP,108 the data routing method utilized by the Internet. Lessig says, “a smart receiver could distinguish the transmissions. It could tell which it was to receive and ignore all others, without any coordination of the transmissions.”109 His theory continues by explaining that broadcasting could operate similarly whereby the technology of receivers would regulate reception, instead of the government regulating transmission due to the confines of the electromagnetic spectrum. This would create a “spread spectrum” design wherein no sender would have to have a particular portion of the spectrum allocated exclusively for his or her use. “Everyone could be a broadcaster.”110 See generally Doug Vernier, Interference on the FM Band (visited Jan.21, 2001) . 106 Lawrence Lessig is a Professor of Law at the Stanford Law School. He was the Berkman Professor of Law at Harvard Law School. From 1991 to 1997, he was a professor at the University of Chicago Law School. He graduated from Yale Law School in 1989, and then clerked for Judge Richard Posner of the 7th Circuit Court of Appeals, and Justice Antonin Scalia on the Supreme Court. Lessig teaches and writes in the areas of constitutional law, contracts, comparative constitutional law, and the law of cyberspace. In 19992000, he was a fellow at the Wissenschaftskolleg zu Berlin. (visited Jan. 25, 2001) < http://cyberlaw.stanford.edu/lessig/bio/index.html>. 107 See LESSIG at 184. 108 See id. at 32. TCP/IP stands for Transmission Control Protocol/Internet Protocol, the scheme by which data is broken into small information packets for transmission and reception via the public Internet. Lessig explains that these data packets should be thought of as small packages of information wrapped in an envelope with the address stamped on the outside. 109 See id. at 184. 110 Id. 105

This alternative architecture for broadcasting that eliminates much of the need for government regulation. It facilitates a vastly more efficient use of the finite spectrum and creates greater competition among current packet transmission methods such as copper wire or fiber-optic cable. Lessig challenges the reader to consider whether transformation of the architecture of broadcasting into a packeted data delivery system would result in a model that is “more consistent with First Amendment designs.”111 Apple Computers has already begun marketing the AirPort which is a wireless Internet delivery system designed to be used within a home or small office. 112 Such an item serves as a model of what, with greater transmission power, could deliver digital broadcast signals to smart receivers. 8.

Concluding Remarks - Opinions

Setting aside speculation on the future mode of broadcasting, what exists today appears to be in a state of limbo. The present state of affairs is marked by weak defenses to questions of fundamental fairness in news and editorial content, less diversity in ownership, and great monopolies that represent choke-points on speech. All are contrary to past policy with no legitimate remedies realistically in sight. Questions of media fairness are all too often met with “avert the eyes” or “change the channel” responses. Is it acceptable for those in the broadcast media to hold licenses Id. The AirPort is a device that allows wireless Internet access within a given radius of the device. One can set up the AirPort system and connect to the Internet with any properly configured computer without being “wired” to a network. Apple Computers Incorporated (visited Jan. 23, 2001) . 111

112

granted by our government of the people, while simultaneously enjoying the liberty to pour out half-truths and falsehoods upon us? If market forces truly allow truth to rise to the top, it appears a generation (at least) has been lost awaiting its ascension! Certainly what is “truth” is in the eyes (or ears) of the beholder, but the longer the debate over truth lasts, the more numbed society becomes by the mire. Many people are not turning the channel. Many people are not keen to the dulling of their senses and take the messenger and the message at face value. I contend that the media’s “they can just tune out” defense while technically true, is disingenuous and intentionally ignores reality. What media mogul would suggest otherwise? Diversity has been dramatically cut because of the ownership rules changes. Recently the Commission has made efforts to facilitate diversity by allowing the licensing of Low Power FM (LPFM) licenses. LPFM will likely create more signal interference as thousands of frequencies will be allocated in the already crowded allocable frequency range. The LPFM operator may get his voice on the air, but the signal strength of such LPFM licenses will be so minimal as to render the license valueless, and it’s a good thing, because they must be used for non-profit purposes and are also non-transferable.113 It is clear that with LPFM the Commission is attempting to right the wrong created by the deregulation of ownership rules which created the blessed few monopolies in radio today. 113

See generally FCC Mass Media Bureau LPFM Fact Sheet, (visited Jan. 25, 2001) .

LPFM will prove to be an inadequate remedy. It is not just the opportunity to be heard which has been lost by the minority or “mom and pop” broadcaster to monopolization, but the opportunity for advertising sponsors to patronize such broadcasters as well. An era of “mom and pop” and minority-owned broadcasting which in earnest delivered the news, reflected the views, and catered to the listeners of the local community has been blighted by the Commission that originally enabled it. The trend towards monopoly ownership in radio and television serve to create more discernible control centers for mass communication, but concerns over media monopolization reach beyond notions of anti-competitiveness. Two effects are enabled by the elimination of the broadcast paradigm that fostered a multiplicity of owners. First, a monopoly can propagate the domineering single voice of centralized management. If such a management group has an agenda, their message can be broadly forced upon the public by both subtle and overt methods with little recourse. Often this fear is allayed by the response previously mentioned which suggests that people simply should turn the channel. Second, the current choke-point design of America’s media ownership scheme could actually serve a darker purpose. If the public will not allow the government to control all broadcast media, what is the next best thing? Logic dictates that the next best thing is the consolidation of ownership into large centralized ownership groups. Fifty large

broadcaster companies are easier to monitor, regulate and influence than 500! If a politician can get one monopolistic broadcast manager in his back pocket he now has influence over hundreds of broadcast stations, whereas prior to deregulation the most the politician could influence with such a relationship was twenty-one.114 The opposite of entirely centralized control of broadcasting is complete diversity – this is what the FCC was striving for up until fifteen years ago. Diversity lets the government get away with nothing, while complete centralization can facilitate limitless government mischief. America is by no means on the verge of such centralized media control as was experienced in Eastern Europe during the Cold War or in China today, but the trend is in that direction. It is a long road from Justice Holmes’ notion of a marketplace of ideas to Lawrence Lessig’s vision of an Internet-like architecture being utilized for broadcasting. One must wonder whether such a free-wheeling use of the airwaves would be wise. Would the truth continue to rise to the top, or would such a system merely create noise? Perhaps after reviewing the conflicted path the FCC has taken in bringing the broadcast industry to today’s state of existence, those who consider fairness and diversity, and revere balance and integrity will begin to rethink the architectural structure of the broadcast media as Lessig has done, and ponder whether control and fair play might best be regulated at the point of reception, rather than the source. 114

See note 67, supra.

Reenactment of the fairness doctrine is likely an option that the Commission should not consider. The First Amendment rights of broadcasters have evolved to a level of freedom previously unattained. The curtailment of broadcasters’ new-found freedom would pose predictable difficulties. What the FCC should discern from its policy and regulatory history is that it must make all efforts to act in concurrence with technological changes and societal demands. From a macro perspective, the Commission has worked in patchwork fashion to craft diversity and fairness regulatory schemes that have largely failed. In 1985 the fairness doctrine ceased to ensure that the public at large received even a modicum of balance in news and information, while ownership restrictions have never resulted in much more than the prevention of monopolistic control by the few. Those regulatory schemes are now part of a bygone era. The current regulatory scheme has made fairness the burden of the listener by submitting to the notion that listeners and viewers should merely tune-out, while the Commission has made a “last gasp” effort to foster diversity by doling out relatively worthless LPFM licenses. Too little, too late on both counts. The Commission’s failures with fairness and diversity will perhaps no longer be their worry. The resolution to these issues could lie in the architectural model of the Internet if it becomes the model for the broadcast media. The ability to transmit information, music, or other data on a shared frequency in a given geographic area

using a so-called “smart receiver” represents a monumental breakthrough that would make the airwaves virtually equivalent to a public forum.115 Such an environment would more nearly reflect First Amendment notions of free speech and unbridled expression, and more thoroughly facilitate Holmes’ marketplace of ideas. In Lessig’s words, “A faithful reading [of the Constitution] would reject an architecture that so strongly concentrates power. The model for speech that the framers embraced was the model of the Internet – distributed, noncentralized, fully free and diverse.”116

See ZUCKMAN, supra at 124. Quoting from International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 679 (1992) describing a public forum as public property that has the traditional purpose of the free exchange of ideas as shown by a longstanding historical practice of permitting free speech. 116 LESSIG at 185. 115