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

1 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).

regulation of media, and especially its political 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 3 Id.4 ENCYCLOPEDIA BRITTANICA, ADAMS, SAMUEL; COMMITMENT TO AMERICAN INDEPENDENCE (visited Jan. 12, 2001) <http://www.britannica.com/bcom/eb/article/6/0,5716,3716+2,00.html>.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)<http://www.dds.nl/~pressnow/about/board.html>.6 Why Should Independent Media Be Supported in Countries in Transition? Press Now (visited Jan. 15, 2001) <http://www.dds.nl/~pressnow/dossier/whysupport.html>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 owner. In the opposite, when broadcasters are limited as to the quantity of stations

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

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 was accidental, as it coincided with a

11 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.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) <http://www.cnn.com/2000/ALLPOLITICS/stories/02/21/apollo.debate/>.

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 14 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 <http://www.mediaresearch.org/news/reality/2001/Fax20010110.html>.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.

Thomas Jefferson’s view of the Second 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 18 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) <http://www.ushmm.org/outreach/92118-1.htm>.19 Frank Cerabino, Centennial Park Bombing; Fans crowd city as investigators search for bomber, The Atlanta Journal-Constitution, 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.

profile 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

21 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) <http://www.hfac.uh.edu/comm/media_libel/cases-conflicts/tv/jewell.html>.

Post column, 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?

25 See Richard Jewell v. New York Post, 23 F.Supp 2d 348, 380 (S.D.N.Y. 1998).26 Leonard Pallats, Jewell Settles with CNN; Sues Atlanta Newspapers, former employer, The Danbury News-Times, Jan 29, 1997, (visited January 19, 2001) <http://www.newstimes.com/archive97/jan2997/nad.htm>.

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

For purposes of this inquiry, the press’s right to access information is not

immediately relevant, rather its freedom from prior restraint is preeminent. 27 Henry L. Zuckman et al., Modern Communications Law, § 14.5, at 1234 (1999).28 See id.29 See Syracuse Peace Council, et al. v. FCC, 867 F.2d 654, 655 (U.S. App. D.C. 1989).

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 in the past tense,35 to the

30 See generally Near v. Minnesota, 283 U.S. 697 (1931).31 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.35 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.

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.

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).

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

39 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.

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 marketplace metaphor

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

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.

5. The Doctrine in Depth50 Donald E. Lively et al., Constitutional Law: Cases, History, and Dialogues 940 (2d ed. 2000). 51 Forthcoming questions are issues derived from personal observations after 17 years in the radio broadcast industry in positions of management and ownership of stations.

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

After nearly forty years in force,58 in 1985 the FCC began to dismantle

portions of the fairness doctrine. Preceding partial repeal, the commonly 52 FCC Fairness Report, 48 FCC 2d 1 (1974).53 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. § 73.1920.58 The Fairness Doctrine was initiated by an FCC report dated 1946, entitled Public Service Responsibilities of Broadcast Licensees.

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

that its reasoning to support the FCC’s decision to partially repeal the

doctrine was particularly based on the Commission’s findings that

59 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.

“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 rules that limited the number of broadcast stations an

62 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.

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 is not. Freedom of the press from

67 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).

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

70 See Associated Press et al. v. United States, 326 U.S. 1, 20 (1945).71 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) <http://www.arbitron.com/radiosurvey/mm051075.htm>.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.

commercial radio 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

75 See id.76 The Arbitron Company (visited Jan. 21, 2001), <http://www.arbitron.com/radiosurvey/mm251276.htm>.77 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.

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

80 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).

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

84 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.

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 88 See id. at 564, 565.89 See Adarand supra at 231.

Government’s use 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

90 See id. at 204.91 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) <http://www.clearchannel.com/calendar/cccbkgnd.htm>.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.

7. The Demise Of Scarcity – The Rise Of The Internet

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

94 Donald E. Lively et al., Communication Law: Media, Entertainment, and Regulation 297 (1997).95 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.

the newsprint, ink, delivery trucks, computers, and other resources that go

into the 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

98 Id. 99 Id. at 509.100 Id. at 508.

treatment. A publisher can deliver his 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.

103 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.

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 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 105 See generally Doug Vernier, Interference on the FM Band (visited Jan.21, 2001) <http://www.v-soft.com/MWBCSBEPaper/interference_paper.htm>.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 1999-2000, 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.

have a particular portion of the spectrum allocated exclusively for his or her

use. “Everyone could be a broadcaster.”110

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

110 Id.111 Id.112 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) <http://www.apple.com/airport/>.

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 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.

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

113 See generally FCC Mass Media Bureau LPFM Fact Sheet, (visited Jan. 25, 2001) <http://www.fcc.gov/mmb/prd/lpfm/>.

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

114 See note 67, supra.

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.

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

115 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 long-standing historical practice of permitting free speech.116 LESSIG at 185.