Media Fairness-BMRowland

1 See Inquiry into Section 73.1910 of the Commission’s Rules & Regulations ConcerningAlternatives to the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 142(1985) (holding that the fairness doctrine no longer served the public interest).

2 STEPHEN L. CARTER, INTEGRITY 193 (1996).3 Id.4 ENCYCLOPEDIA BRITTANICA , ADAMS, SAMUEL; COMMITMENT TO AMERICAN

INDEPENDENCE, http://www.britannica.com/bcom/eb/article/6/0,5716,3716+2,00.html (last visitedJan. 12, 2001).

5 Press Now, at http://www.pressnow.org/dossier/whysupport.html (last visited Sept. 14,2001). Press Now is a Dutch organization dedicated to free press in countries such as Bosnia-Hercegovina, Albania, Kosovo, Bulgaria, Romania, and Croatia. See id. The Chairman of Press Now

MEDIA FAIRNESS: REGULATION, DIVERSITY, REALITY

By: Brian M. Rowland

I. INTRODUCTION

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

Should the media be held to a higher standard and be regulated intobehaving 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 especiallyits 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 Britishtroops during the Revolutionary War.4 Press Now, an organization that supports freepress in Central and Eastern Europe further explains that, “[w]hat can generally beasserted for most of the countries of Eastern Europe is that the media served theelites in power: they did this by misinforming the people, by creating stereotypes ofenemies and the West (i.e. the United States), by ‘educating’ the masses, byinterpreting Party directives and indoctrinating through ideology.”5 The ideological

68 Florida Coastal Law Journal [Vol. III:67

is Erik Jurgens, constitutional law professor at the Free University in Amsterdam, member of theUpper House of the Netherlands Parliament, and member of the Parliamentary Assembly Council ofEurope. See Press Now, at http://www.pressnow.org/about/board.html (last visited Jan. 15, 2001).

6 See Press Now, Why Should Independent Media Be Supported in Countries in Transition, athttp://www.pressnow.org/dossier/whysupport.html (last visited Jan. 15, 2001).

7 The term “choke-point” is used to describe the bottleneck effect of a monopoly upon thebroadcast media. A choke-point is characterized by the ease of affecting many broadcast stations bythe control of one owner, or the influence of another upon the owner. In the opposite, whenbroadcasters are limited as to the quantity of stations they may own, the result is a greater diversity ofowners that are less easily influenced or controlled. It is noteworthy that the Internet represents theutmost in decentralization both in the diversity of its content providers and the nature of itsarchitecture.

8 Fairness and diversity are interrelated as will be discovered.9 See FCC v. Pottsville Broad. Co., 309 U.S. 134, 137-8 (1940) (discussing Congressional intent

in the Communications Act of 1934 to be such that Congress feared that in the absence of certaingovernmental licensing control, the public interest would be subordinated if monopolistic control inthe broadcast industry occurred).

10 Such forms are recognizable to one who, like myself, has spent a significant time inbroadcast management and programming.

hegemony and the monopoly on power perpetuated by the media was based on twofoundations: the suppression of individual interests and the egalitarianism ofpoverty.6 Cries for media fairness in the United States are generally not the result ofa desire to avoid or initiate revolution, but recent history warns that the variouselectronic media have considerable power, and control should be diversified to amultitude of responsible gatekeepers and not subject to the central choke-point thata monopoly represents. 7

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

II. WHAT BIAS?

Complaints of media bias come from various directions and concern morethan just the television news industry. Bias may stem from an individualizeddecision 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 oftenappears in recognizable forms10 such as the purposeful exposure of one side of astory, or the omission of seemingly worthy news items altogether. Further, bias mayoccur when a disingenuous association between one person or point of view and thatof another is made, resulting in a false light being cast upon the former, and an

2001] Rowland 69

11 It is interesting, but diversionary, to note that apparent liberal bias has primarily risen totelevision at the top of the media “food chain,” while conservative bias has been largely relegated tothe AM radio band.

untrue relationship created between the two. Finally, bias or unfairness may occurwhen news reporters air a story and report, in bandwagon fashion, what others arereporting without conducting their own independent investigation of facts. Theseexamples are not exhaustive and are not intended to be ideological in nature. Theyare merely actual examples.

A. One Side Of The Story

On an October morning before the 2000 presidential election, my wife andI were going about our business preparing for the day. In the background, NBC’sToday Show was on the television. NBC Today Show host Katie Couric announcedthat Texas Governor George W. Bush had begun a new series of “negative attackads” against Vice President Al Gore. This comment alone was not substantial butwhat followed was incomprehensible. Without explaining the basis for Bush’s newad 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 merelymentioned, the entire ad was played on the air, uninterrupted. At any moment duringcandidate Gore’s ad, I expected Couric or co-host Matt Lauer to interrupt withcommentary. They did not. In the scope of about a minute one candidate wasstigmatized as having launched a negative attack campaign while the other candidatewas 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 realizesthat NBC owns 13 television stations and has over 220 network affiliates, multipliedby the stations’ commercial spot rates for thirty-second morning show ads, the dollaramount in free air time is considerable if one considers the cumulative effect.

Television, and such pro-Democratic Party bias that may occur, is not onan 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 afew minutes of listening to network radio hosts Rush Limbaugh, Dr. LauraSchlessinger, G. Gordon Liddy, Michael Savage, or Michael Reagan, proves thepoint.11

B. No Story At All – The Blind Eye

At first impression, one might think that only a radical revolutionary wouldpublicly declare approximately one-half of his countrymen “the real enemy.” Onewould certainly think that such a statement from a leader already in office would


12 During the February 21, 2000, presidential primary debate in New York, a defensive Al Gorefended-off Senator Bradley’s personal attacks by stating that “[the attacks] distract us from the realenemy . . . the republicans.” Amy Paulson, Gore Deflects Bradley’s Attacks During Democratic Debate, athttp://www.cnn.com/2000/ALLPOLITICS/stories/02/21/apollo.debate (last visited Jan. 11, 2001).

13 Ken Foskett, Bradley Scrambling for a Boost; But His Tactics in Washington State are Raising Questionsand McCain's Bandwagon is Hogging the Spotlight, THE ATLANTA JOURNAL-CONST ., Feb. 25, 2000, at 20A(discussing a radio advertising campaign paid for by Voters for Choice in which supported candidateGore in the democratic primary against candidate Bradley).

14 See id. (mentioning one of Gore’s statement was reported in an Internet article onCNN.com’s All Politics). The quote was not the subject of the article and was merely placed in the finalsentence of the last paragraph.

15 Media Research Center, Campaign 2000 Media Real i ty Check, at,http://www.mediaresearch.org/news/reality/2001/Fax20010110.html (quoting Lisa Myers from theNBC Today Show broadcast of January 10, 2001) (last visited Jan. 18, 2001).

16 McVeigh was convicted of bombing the Alfred P. Murrah Federal Building in which 168persons were killed on April 19, 1995, in Oklahoma City.

make news. It did not. The statement was in fact made by Vice President Gore ina debate with Senator Bill Bradley as both men sought the Democratic Partypresidential nomination. While battling off Bradley’s personal attacks, Goreattempted 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. 12

One has to wonder whether such a comment was accidental, as it coincided with aradio commercial that was currently airing which stated “[Bradley’s] unfair negativeattacks divide us at the very moment we should stand together against the real enemy--- the Republican candidates.”13 Presumably, the vice president did not intend todeclare actual war upon half of his countrymen, but the choice by the mainstreampress14 to ignore such an inappropriate remark begs the question: what if Bush orMcCain had made the same comment of Democrats?

C. Disingenuous Associations

The practice of making illogical connections between persons or ideas thatare actually or contextually dissimilar is a subtle method of placing the originalperson or idea (the object) of the statement into the light of the other. Such falseassociations serve to chip away at the public image of the object. The comments ofNBC News Reporter Lisa Myers illustrate clearly. Discussing the viewpoints ofSenator John Ashcroft, the Bush nominee for attorney general, Myers reported that“Ashcroft has the same view of the Second Amendment as Timothy McVeigh.”1 5

What possible effect can associating Ashcroft’s view of the Second Amendment withthat of McVeigh have other than to tarnish Ashcroft’s image by a false associationthat suggests that Ashcroft and McVeigh are of the same ilk? 16 Was not ThomasJefferson’s view of the Second Amendment similar to McVeigh’s? What’s next?

2001] Rowland 71

17 See United Stated Holocaust Memorial Museum, The Holocaust a Learning Site for Students, athttp://www.ushmm.org/outreach/92118-1.htm stating that 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) (lastvisited Jan. 10, 2001).

18 See Frank Cerabino, Centennial Park Bombing; Fans Crowd City as Investigators Search for Bomber,THE ATLANTA JOURNAL-CONST ., July 28, 1996, at 01S.

19 See Alice Dembner and Peter S. Canellos, An Act of Terror; Games Go On as Attack is Probed,THE B. GLOBE, July 28, 1996, at A1. It is often reported that two persons died in the bombing, butone person was actually killed by the bomb while another, a Turkish television cameraman, suffereda heart attack rushing to get to the scene to videotape the aftermath.

20 Kathy Scruggs & Ron Martz, FBI Suspects ‘Hero’ Guard May Have Planted Bomb, THE ATLANTA

JOURNAL-CONST . P.M. ED., July 30, 1996, at 1.21 See Roberto Suro, The FBI Questions Its Own Tactics With Jewell, CHI. SUN-TIMES, Nov. 11,

1996, at 4 (discussing primarily the FBI’s tactics in questioning Richard Jewell, the author cites thatJewell received a letter from the Justice Department dated October 26, 1996, clearing him ofsuspicion).

Will a news reporter point out that a certain politician likes wearing brown shirts17

just like the ones Hitler’s men wore?

In similar fashion, public persons are frequently identified as “far left”,“liberal left”, “Christian right”, and “radical right-wing”. When such labels aretossed about by those attempting to discredit their opponents, is not the mediacomplicit if it does not challenge the speaker? This complicity debatably allows thespeaker to brand the object with a false association subtly, though possibly aseffectively as the overt association NBC’s Lisa Myers made between Ashcroft andMcVeigh .

D. All Aboard The Bandwagon

The 1996 Olympic Games in Atlanta were marred by a bomb explosion inCentennial Olympic Park on July 27, 1996, wherein one person was killed and over100 others injured.18 The very next day, security officer Richard Jewell was toutedas one of several security persons responsible for saving lives.19 Jewell’s status aspost-bombing “hero” declined quickly to nation-wide condemnation because of theprint 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 lawenforcement officer, [who] fits the profile of the lone bomber. This profile generallyincludes a frustrated white man who is a former police officer, member of themilitary or police ‘wannabe’ who seeks to become a hero.”20 After Jewell wascleared of suspicion by the United States Department of Justice in October of1996,21 a multitude of lawsuits ensued in which Jewell charged the likes of NBC,


22 Libel per se occurs when words are of such a character that an action may be brought uponthem without the necessity of showing any special damage, the imputation being that the law willpresume that anyone so slandered must have suffered damage. See BLACK’S LAW DICTIONARY 916(6th ed. 1990).

23 Media Libel, Cases and Conflicts, Richard Jewell v. NBC, and Other Richard Jewell Cases, athttp://www.hfac.uh.edu/comm/media_libel/cases-conflicts/tv/jewell.html (last visited Jan. 19, 2001).

24 Richard Jewell v. N. Y. Post, 23 F. Supp 2d 348, 380 (S.D.N.Y. 1998).25 Leonard Pallats, Jewell Settles With CNN; Sues Atlanta Newspapers, Former Employer, DANBURY

NEWS-TIMES, Jan. 29, 1997, available at http://www.newstimes.com/archive97/jan2997/nad.htm (lastvisited Jan. 19, 2001).

ABC/CapCities, The New York Post, CNN, and Cox Enterprises with defamationor libel per se.22

It is not within the scope of this inquiry to delve into the actual legal issuesand case rulings of the lawsuits filed by Richard Jewell; however, it is incredible tolook back at what was said by the media about this man before his exoneration bythe Department of Justice. Tom Brokaw, news anchor of NBC, said, “[t]hespeculation is that the FBI is close to making the case. They probably have enoughto arrest him right now, probably enough to prosecute him, but you always want tohave enough to convict him as well. There are still some holes in this case.”23 In herJuly 31, 1996, New York Post column, Andrea Peyser wrote,

Who checked ‘Rambo’ crossing guard’s record? . . . Richard Jewell, theOlympic security guard who’s reportedly turned into a prime suspect forSaturday’s deadly bombing, had a reputation for being the village Rambo inHabersham County . . . He was a fat, failed former sheriff’s deputy whospent most of his working days as a school crossing guard, and yearned togo further. But he lost his job on the county force, after six years when hewrecked a squad car.24

Jewell settled out of court with CNN for the broadcast of such statements as: “ . .. a bizarre employment history and an aberrant personality . . . .”25

Such statements demonstrate that there are occasions where the print andbroadcast media tend to stoke their own momentum in a story and lose sight of thefact that their words have the power to destroy lives. This effect, which I havelabeled “bandwagoning,” appears to cause reporters to lose sight of the truth infavor of expediency, sensation, and the desire not to be left behind by competitors.

III. FOUNDATIONAL INFORMATION

In a free society can there ever be a preventive cure for the types ofunfairness and bias the print and broadcast media occasionally exhibit? Should

2001] Rowland 73

26 HARVEY L. ZUCKMAN ET AL., MODERN COMMUNICATION LAW § 14.5 (1999).27 See id.28 See Syracuse Peace Council v. FCC, 867 F.2d 654, 655 (D.C. Cir. 1989).29 See generally Near v. Minnesota, 283 U.S. 697 (1931).30 See Patterson v. Colorado, 205 U.S. 454, 463 (1907)(citing Commonwealth v. Blanding, 3

Pick. 304, 313-14 (1825)).

private citizens like Richard Jewell be forced to rely on remedial cures to prevent thepress from conducting repeat performances?

After developing a sense of the types of unfairness and bias that occur, it isnecessary to examine a few applicable fundamentals of First Amendment andCommunications law. The fairness doctrine, freedom of the press, the publicinterest concept, and the marketplace of ideas are appropriate starting points.

A. The Fairness Doctrine

The doctrine is more deeply explored below; however for purposes ofintroduction, a brief explanation is warranted. The fairness doctrine is the earmarkof broadcast media’s weakened constitutional status as compared to other mediasuch as cable, print, and the Internet. “The doctrine gives the government theauthority to oversee broadcasters’ coverage of controversial issues of publicimportance.”26 When originally enacted the doctrine was thought to expandbroadcasters’ rights because prior to the doctrine, broadcasters were under acomplete ban on editorializing.27

In its original form, the doctrine imposed dual responsibilities uponbroadcast licensees. Broadcasters were required to devote reasonable time to thecoverage of public issues, and it was incumbent upon them to give air time foropposing points of view.28

B. Freedom of the Press

For purposes of this inquiry, the press’s right to access information is notimmediately relevant, rather its freedom from prior restraint is preeminent. A priorrestraint is the imposition of a governmental restraint on a publication or speakerbefore publication or speech occurs.29 Justice Holmes, in Patterson v. Colorado,considered the free press guarantees of the First Amendment to prevent all priorrestraints upon publications as had been practiced by other governments.30 Theessence of Holmes’ belief was that restrictions on the press prior to publicationshould not be sustained. Instead, he believed that statements contrary to the public


31 See id. 32 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 ofobjectionable books in effort to thwart their distribution in the state).

33 Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (upholding the Fairness Doctrine’spersonal attack rules against Red Lion’s WGCB after it carried a 15 minute broadcast by the ReverendBilly James Hargis wherein Hargis attacked author Fred J. Cook).

34 See FCC v. League of Women Voters, 468 U.S. 364, 380 (1984). In the final paragraph ofsection II, Justice Brennan curiously referred to the public’s First Amendment interest in receiving abalanced presentation of views, as a restriction on the press whose nature “has” been to secure suchaccess by the public. See id. at 380. It is not apparent whether this reference to the public’s interestwas intentionally placed in the past tense or merely interestingly placed therein.

35 See generally In re Syracuse Peace Council, 2 F.C.C.R. 5043 (1987). 36 Syracuse Peace Council v. FCC, 867 F.2d 654, 659 (D.C. Cir. 1989).37 Id. at 682 (Starr, J. concurring).

welfare should be punished after their publication.31 Subsequently, the Courtexpressed its opinion that prior restraints “[bear] a heavy presumption against [their]constitutional validity.”32

In the broadcast context, the rights of a free press have experienced afundamental shift over time from a right inhered in the public to “receive suitableaccess to social, political, esthetic, moral, and other ideas,”33 to a curious positionJustice Brennan once took where he referred to the public’s right to receive abalanced presentation of views in the past tense,34 to the present position where theCourt openly recognizes broadcasters’ freedom of expression.35

Acknowledgment of broadcasters’ rights to free expression was fortifiedwhen the United States Court of Appeals for the District of Columbia upheld theCommission’s decision not to enforce the doctrine stating that “[i]n sum, the fairnessdoctrine in operation disserves . . . the broadcaster’s interest in free expression.”36

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 LionBroadcasting Co. v. FCC as rendering the doctrine unconstitutional if regulation “(1)chills speech and results in the net reduction of the presentation of controversialissues of public importance and (2) excessively infringes on the editorial discretionof broadcast journalists and involves unnecessary government intervention to theextent that it is no longer narrowly tailored to meet its objective.”37

From these examples it is arguable that the focus of free press rightsconcerning broadcast licensees has shifted over time from one which previouslyviewed such rights as held by the public at large to receive fair and balancedinformation to one which now recognizes the free expression rights of broadcasters.

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38 See BLACK’S LAW DICTIONARY 1229 (6th ed. 1990) (defining a public interest as one that isgranted by public permission, making use of public property requiring the permitted to bear anaffirmative obligation to deal with the public on reasonable terms).

39 Radio Act of 1927, Pub. L. No. 632, §11 (1927).40 See FCC v. Pottsville Broad. 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 underthe Communications Act, and stating that judicial review of agency actions was limited to correctionof legal errors).

41 FCC v. Nat'l Citizens Comm. for Broad., 436 U.S. 775, 810 (1978).42 See Pinellas Broad. Co. v. FCC, 230 F.2d 204, 206 (D.C. Cir. 1956), cert. denied, 350 U.S. 1007

(1956).43 See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375-76 (1969) (discussing the fact that prior

to the Radio Act of 1927, the private sector chaotically attempted to allocate frequencies tobroadcasters). The comments of Congressman White, are especially predictive of the necessity forregulation based upon a public interest standard. See id. at n.5.

44 See id. at 383.45 See id. at 388.46 Amendment of Multiple Ownership Rules, 18 F.C.C. 288, 291-92 (1953).

C. Public Interest

Radio and television broadcasting licensees have been regarded as operatingin the public interest.38 The public interest standard was originally set forth in theRadio Act of 1927,39 and was later recognized by Justice Frankfurter as the“touchstone” of authority for the FCC.40 “[T]he weighing of policies under the‘public interest’ standard is a task that Congress has delegated to the Commission inthe first instance,”41 however it should be noted that the Commission’s view of whatis actually in the public interest does change, as commission personnel changes, andtheir underlying philosophies and experiences differ.42

The public interest standard is rooted in the limited capacity of theelectromagnetic spectrum, conveniently labeled - “scarcity.”43 Scarcity stems fromthe fact that more individuals wish to hold broadcast licenses than can be permitted.This result is due to limited spectrum bandwidth that results in a limitation ofallocable broadcast frequencies44 in order to avoid signal interference.45

The FCC’s desire for diverse voices on the air also drives the public intereststandard. In the Commission’s 1953 Amendment of Multiple Ownership Rules, thisposition was amplified by the FCC’s declaration that the fundamental purpose of therules was “to promote diversification of ownership in order to maximizediversification of program and service viewpoints as well as to prevent undueconcentration of economic power contrary to the public interest.”46


47 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).48 Id.49 See id., cited in DONALD E. LIVELY ET AL., CONSTITUTIONAL LAW: CASES, HISTORY, AND

DIALOGUES 940 (2d ed. 2000). 50 Forthcoming questions are issues derived from personal observations after 17 years in the

radio broadcast industry in positions of management and ownership of stations.

D. The Marketplace of Ideas

Justice Holmes viewed free speech and press as a function of a marketplaceof 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 thecompetition of the market, and that truth is the only ground upon which their wishessafely can be carried out.”4 7 Holmes emphatically believed that “we should beeternally vigilant against attempts to check the expression of opinions that we loatheand believe to be fraught with death, unless they so imminently threaten immediateinterference with the lawful and pressing purposes of the law that an immediatecheck is required to save the country.”48 The marketplace of ideas proposes thatspeech should be protected from government interference because exposing thepublic to different viewpoints is the best way to discover the truth. Themarketplace metaphor has dominated the Supreme Court’s interpretation of the FirstAmendment in the days since Abrams v. United States.49

IV. EXPLORATION: ISSUES & STANDARDS

Certain questions come to mind before approaching the legal detail-workof the fairness doctrine, diversity, the Commission’s relaxation of ownership rules,and the effects of new media. 50

Armed with the fact that for decades the FCC considered the broadcastmedia a scarce commodity and utilized that principle to underlie strict ownershippolicies and certain content regulation, how or why was such a scheme undone? Didscarcity truly disappear? Does broadcasting no longer embody unique qualities, suchthat 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 squarewith the Commission’s recent deregulation of ownership rules?

Much of FCC policy seems diametrically opposed. Perhaps it has beendriven by the private interests of the National Association of Broadcasters, the shiftin the Court’s analysis of the First Amendment rights of broadcasters, an increasing

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51 See FCC Fairness Report, 48 F.C.C.2d 1, 19 (1974).52 See ZUCKMAN, supra note 26, at 1235.53 See id. (citing Cullman Broad. Co., 40 F.C.C. 576 (1963)).54 See id. (citing Letter to Nicholas Zapple, 23 F.C.C.2d 707 (1970)).55 See 65 Fed. Reg. §§ 66643, 66644 (2001).56 See id.57 The Fairness Doctrine was initiated by a FCC report dated 1946, entitled Public Service

Responsibilities of Broadcast Licensees.58 See Mark S. Fowler & Daniel L. Brenner, A Marketplace Approach to Broadcast Regulation, 60

TEX. L. REV. 207, 256 (1982) (concluding that in light of advances in electronic radio technology, thescarcity rationale was no longer viable and that the marketplace, the listeners and viewers should definethe public interest). In their view, the public interest standard abridged broadcasters' First Amendmentrights. See id.

unmanageability of the broadcast spectrum, the onslaught of new media andtechnology, or some combination of these and other factors.

V. THE FAIRNESS DOCTRINE IN DEPTH

The fairness doctrine required a broadcast licensee to provide coverage ofvitally important controversial issues of interest in their local community and toprovide a reasonable opportunity for the presentation of contrasting viewpoints onsuch issues.51 The fairness doctrine spawned several corresponding doctrines thatalso affected broadcasters.52 Those included the Cullman doctrine that provided thatwhen only one side of a controversial issue was presented during a sponsoredprogram, the other side must be presented even if no one was willing to pay for thepresentation.53 The Zapple doctrine dictated that stations that sold time to politicalsupporters of one candidate during an election campaign were required to provideequal time to supporters of the candidate’s opponent(s).54 When broadcasterspolitically endorsed or opposed candidates, they were required to notify the subjectand offer equal time to respond.55 Under the personal attack rule, a broadcaster wasobliged to notify and offer equal time to the victim of an on-air attack wherein thatperson’s honesty, character, integrity of similar personal qualities were attackedduring the broadcast of a program concerning a controversial issue of publicimportance.56

After nearly forty years in force,57 in 1985 the FCC began to dismantleportions of the fairness doctrine. Preceding partial repeal, the commonly heldnotion of spectrum scarcity as the rationale for retaining fairness regulation beganto erode as the FCC started to interpret the public interest standard under the“marketplace of ideas” concept. FCC Chairman Mark Fowler took the position thatregulation was necessary only when the marketplace failed to protect the publicinterest.58


59 Syracuse Peace Council v. FCC, 867 F.2d 654, 660 (D.C. Cir. 1989).60 Id. at 659.61 Id. 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 notableat this point that such diversity was underpinned by strict ownership limitation rules sharply limitingthe quantity of outlets and overlap of signals in which one entity could be licensed.

62 See Radio-Television News Dir. Ass’n v. FCC, 229 F.3d 269, 270-71 (D.C. Cir. 2000).63 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 publicinterest would continue to benefit from fairness regulations. See id. The Court was concerned withgovernment entanglement in day to day media operations and interference with the editorial judgmentof professional journalists. See id.

64 See FCC News Release, FCC Suspends Political Editorial and Personal Attack Rules for 60 Days,at http://www.fcc.gov /bureaus/MassMedia/Orders/2000/fcc00360 (last visited Sept. 10, 2000). TheCommission ordered a 60 day suspension of the personal attack and political editorial rules, rejectingdiscussion in Syracuse Peace Council v. FCC that kept the attack and editorializing prongs of thedoctrine in effect. Interestingly, the Commission’s decision paved the way for unchecked editorialcontent to be broadcast a mere month before the 2000 presidential election.

65 See Radio-Television News Dir. Ass’n v. FCC, 229 F.3d 269, 272 (D.C. Cir. 2000) (pointing

In the Commission’s Inquiry Into General Fairness Doctrine Obligations (1985Fairness Report), the Commission concluded that the doctrine “operated to chillbroadcaster speech on controversial issues and that recent increases in broadcastingoutlets undercut the need for the doctrine.”5 9 This decision was not based onconstitutional grounds, rather it was policy made by congressionally delegated powerand FCC expertise. Interpreting the 1985 Fairness Report, theFederal District Court in Syracuse Peace Council stated that “the fairness doctrine inoperation disserves both the public’s right to diverse sources of information and thebroadcaster’s interest in free expression. Its chilling effect thwarts its intendedpurpose, and it results in excessive and unnecessary government intervention intothe editorial processes of broadcast journalists.”60 In Syracuse Peace Council, the courtemphasized that its reasoning to support the FCC’s decision to partially repeal thedoctrine was particularly based on the Commission’s findings that “increaseddiversity of [broadcast] outlets and programming, [gave adequate grounds for]removal of the first prong [of the fairness doctrine].”61

By 1999, the last effective remnants of the fairness doctrine were thepersonal attack and political editorial rules.62 The Commission came underincreasing pressure from the United States District Court for the District ofColumbia to “explain why the public [interest] would benefit from rules that raise[certain] policy and constitutional doubts.”63 In response, in early October 2000, theCommission suspended its political editorial and personal attack rules for 60 days.64

One week later, the district court issued a writ of mandamus directing theCommission to immediately repeal the rules, permanently.65

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out that the petitioner’s request for the rules to be vacated had been pending since 1980 and declaringthat the FCC’s action “unreasonably delayed,” the court issued the writ).

66 See ZUCKMAN, supra note 26, at 1199-1201 (describing the beginnings of ownershiplimitation rules and their subsequent evolution). An operator could own seven FM, seven AM, andseven 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. See id. Some operators were grandfathered in with 3-way combinations,and some waivers were permitted. See id.

67 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231 (1995) (calling for strict scrutinyfor federal as well as state and local governmental acts which seek to employ race-conscious criteriato achieve remedial action favoring minorities).

68 N. Y. Times v. Sullivan, 376 U.S. 254, 270 (1964) (citing United States v. Assoc. Press, 52F. Supp 362, 372 (S.D.N.Y. 1943)).

VI. DIVERSITY OF OWNERSHIP

With or without the fairness doctrine in force, the FCC has also sought tosatisfy the public interest standard and ensure a diverse mix of voices in themarketplace with rules that limited the number of broadcast stations an entity mayoperate and by utilizing minority-friendly licensing policies to enhance the numberof minority owned broadcast stations.

The Commission, in 1953, set forth strict regulations limiting to seven thenumber of FM, AM, and TV stations one entity could own.66 Later, in 1986, theCourt upheld the use of minority preferences in the broadcast licensing process.These preferences lasted until 1995.67 The combination of ownership limitations andminority preferences in license allocation worked to assure diversity of voices on theair.

A. Foundations For Diversity

The need for diverse voices in media to protect the public interest is welldocumented. The First Amendment, said Judge Learned Hand, “presupposes thatright conclusions are more likely to be gathered out of a multitude of tongues, thanthrough any kind of authoritative selection.”68 Judge Hand goes on to say:

[The] Amendment rests on the assumption that the widest possibledissemination of information from diverse and antagonistic sources is essential tothe welfare of the public, that a free press is a condition of a free society … Freedomto publish means freedom for all and not for some. Freedom to publish isguaranteed by the Constitution, but freedom to combine to keep others from


69 Assoc. Press v. United States, 326 U.S. 1, 20 (1945).70 See FCC v. Pottsville Broad. Co., 309 U.S. 134, 137-38 n.2 (1940).71 See ZUCKMAN, supra note 26, at 1200.72 See Arbitron Company, at http://www.arbitron.com/radiosurvey/mm051075.htm (stating

that Jacksonville is the 52nd largest radio market in the United States as determined by The ArbitronCompany) (last visited Jan. 21, 2001).

73 See Radio Locator, at http://www.radio-locator.com (last visited Jan. 21, 2001). By enteringthe city and state into the search engine, one can determine what stations are in a given market, whoowns them, what their signal strength is, and what their licensed operating hours are.

74 See id.75 See Arbitron Company, at http://www.arbitron.com/radiosurvey/mm251276.htm (last

visited Jan. 21, 2001).76 See id.

publishing is not. Freedom of the press from governmental interference under theFirst Amendment does not sanction repression of that freedom by private interests.69

B. Media Monopolization Marches Forward

Despite forewarned perils of concentrated ownership and control of theelectronic media,70 in 1985 the Commission raised the number of TV, AM and FMstations one entity could own to twelve a piece. The number of FM and AMstations was increased to eighteen in 1992, and to twenty in 1994.71 Later, theTelecommunications Act of 1996 eliminated all numerical limits for the ownershipof radio stations. After 1985, the Commission took a different track with TVownership rules and prohibited an owner from holding multiple television stationsthat 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 inAmerica.72 In Jacksonville, there are currently three ownership groups that ownseventeen of the local commercial radio stations, and the remaining stations thatreach the market are situated either outside of the market, broadcast during daytimehours only, or are local stations of inferior signal strength.73 In the second largestradio market, Los Angeles, Infinity Broadcasting and Clear ChannelCommunications each own eight commercial radio stations while the two nextlargest stakeholders in the market merely own three a piece.74 At the other end ofthe market-size spectrum, in Brunswick, Georgia, the 282nd largest radio market,75

one local owner holds six stations, while the two other local commercial stations areeach owned by separate persons or entities.76

Standing alone, such numbers may not impress. However, if one considersthat prior to the unraveling of the FCC’s broadcast ownership rules the most anyone person or entity could hold in a market was a single AM and FM license (and

2001] Rowland 81

77 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231 (1995) 78 Bill Carter, The Media Business: FCC Will Permit Owning 2 Stations in Big TV Markets, N.Y.

TIMES, Aug. 6, 1999, at A1.79 In re Review of the Commission's Regulations Governing Television Broad., Report & Order,

14 F.C.C.R. 12903 (1999) (Kennard, Comm’r, concurring).80 See id. at ¶ 13.81 See Statement of Policy on Minority Ownership of Broadcast Facilities, Public Notice, 68

F.C.C.2d 979 (1978).

at most a total of seven apiece nationwide), diversity in ownership clearly hasbecome a relic of the past as media ownership consolidation has caused an implosionin the number of individual licensees nationwide.77

As for television ownership, the Commission did relax rules enough to allowownership of more than one station per market by a single owner in specialcircumstances.

The new FCC standards will allow dual ownership in cities where there area sufficient number of media voices, which include all radio and TVstations, large daily newspapers and cable systems. Specifically, a city musthave at least eight independently owned television stations for one companyto own two. And a company cannot own more than one of the four top-rated stations in any market.78

The FCC’s recent relaxation of its ownership rules has been designed toprovide clear, “commonsense rules that recognize the dramatic changes [in] . . . themedia marketplace,” in order to “provide broadcasters with flexibility to seizeopportunities and compete in this increasingly dynamic media marketplace . . . [and]help preserve free local broadcast service.”79 The Commission has attempted tocounteract any reduction in diversity of ownership resulting from the relaxedtelevision rules by allowing a “new entrant bidding credit” as part of their broadcastlicense auction procedures.80

C. The Minority Voice

To enhance diversity by increasing minority ownership, the Commissionissued its 1978 Policy Statement. The statement enunciated the use of comparativehearing preferences favoring minority applicants, the distress sale policy, and theaward of tax certificates to the owners of broadcast or cable systems that sold theirproperties to minority-controlled businesses.81 The policies set forth by the 1978Policy Statement to increase the level of broadcast facility ownership by minorities,


82 Metro Broad., Inc. v. FCC, 497 U.S. 547, n.1 (1990) (upholding the FCC’s minoritypreference - comparative hearings and distress sale policies).

83 Policy Statement on Comparative Broadcast Hearings, Public Notice, 1 F.C.C.2d 393 (1965)(stating various factors to be examined when awarding a broadcast license, including diversification ofcontrol, full-time participation in station operation by owners, proposed program service, pastbroadcast record, and efficient use of frequency).

84 Metro Broad., 497 U.S. at 557.85 Id.86 Id.87 Id. at n.19.

defined minorities as “Black, Hispanic Surnamed, American Eskimo, Aleut,American Indian, and Asian American extraction.”82

First, the comparative hearing minority preference policy worked by addingminority ownership to the criteria set forth in the Commission’s 1965 PolicyStatement.83 This “‘plus’ [was] awarded only to the extent the minority owneractively participate[d] in the day-to-day management of the station.”84

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 intoquestion [could] not assign or transfer that license until the FCC ha[d] resolved itsdoubts in a non-comparative hearing.”85 Instead, “[t]he distress sale policy [was] anexception to that practice, [which allowed] a broadcaster whose license ha[d] beendesignated for a revocation hearing, or whose renewal application ha[d] beendesignated for hearing, to assign the license to an FCC-approved minorityenterprise.”86

Finally, tax certificates were offered to broadcasters that sold theirproperties to organizations with a minority ownership share of over 50%. Thecertificates “permit[ted] sellers of broadcast properties to defer capital gains taxationon a sale whenever it [was] deemed necessary or appropriate to effectuate a changein a policy of, or the adoption of a new policy by, the Commission with respect tothe ownership and control of radio broadcasting stations.”87

The 1990s were ushered in by the Supreme Court’s confirmation of thelegitimacy of the FCC’s comparative hearing and distress sale policies in MetroBroadcasting, Inc., v. FCC. An important aspect of Metro Broadcasting was the Court’sadoption of the intermediate standard of review for determining the validity of theracial classification policies mandated by Congress. In declaring the standard, theCourt held that “benign raceconscious [sic] measures mandated by Congress -- evenif those measures are not ‘remedial’ in the sense of being designed to compensatevictims of past governmental or societal discrimination -- are constitutionally

2001] Rowland 83

88 Id. at 564- 65.89 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231 (1995).90 Id. at 204.91 See Clear Channel, at http://www.clearchannel.com (exemplifying that Clear Channel

Communications operates 900 radio and 19 television stations in America) (last visited Jan. 20, 2001).Harkening back to the day when an owner could only own a total of 14 radio stations (7 AM, and 7FM), this shows that Clear Channel’s current holdings at minimum have eliminated 63 owners – andthat is only if each of the former 63 owned the maximum 14 stations!

92 In re Review of the Commission's Regulations Governing Television Broadcasting, Report& Order, 14 F.C.C.R. 12903, at ¶ 17 (1999).

permissible to the extent that they serve important governmental objectives withinthe power of Congress and are substantially related to achievement of thoseobjectives.” 88

In Adarand Constructors,Inc., v. Pena, Justice O’Connor led the SupremeCourt’s majority opinion overruling Metro Broadcasting, stating that strict scrutiny mustbe applied to race-based affirmative action plans and that “Metro Broadcastingundermined important principles of this Court’s equal protection jurisprudence,established in a line of cases stretching back over 50 years.”89 In Adarand, whichconcerned minority set-aside programs in the construction industry, the plaintiffclaimed that “the Federal Government’s practice of giving general contractors onGovernment projects a financial incentive to hire subcontractors controlled by‘socially and economically disadvantaged individuals,’ and in particular, theGovernment’s use of race-based presumptions in identifying such individuals,violates the equal protection component of the Fifth Amendment’s Due ProcessClause.”90

D. Questioning Change

Curiously, after creating sizable monopolies for a handful of broadcasters91

creation of elimination radio ownership limits, relaxing the television ownershiprules, and the loss of minority preference licensing programs in Adarand, the FCCcontinues to maintain that “[o]ne of the most important purposes of our multipleownership rules is to encourage diversity in the ownership of broadcast stations soas to foster a diversity of viewpoints in the material presented over the airwaves.”92

How does a commitment to diversity square with regulations that, in thecase of radio, have radically reduced the number of individual licensees? Does sucha scheme benefit any but the well-heeled who have been effectively given a greenlight to buy out their competitors? In December 2000, recognizing that diversity of


93 See Paige Albiniak, Kennard Pushes For Inclusion; FCC Dems Want Changes to Boost Minority MediaOwnership, BROADCASTING & CABLE, Dec. 18, 2000, at 38.

94 See 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 Telecommunications Research & Action Ctr. v. FCC, 801 F.2d 501, 508 (D.C. Cir. 1986),

cert. denied, 482 U.S. 919 (1987).97 Id.

ownership has decreased, the FCC requested further studies on the effects ofminority ownership of the Telecommunications Act of 1996.93

VII. THE DEMISE OF SCARCITY – THE RISE OF THE INTERNET

As noted, the Commission and the courts have reasoned their regulatoryefforts to enhance diversity of ownership and content with the notions of spectrumscarcity.94 “Given an architecture of spectrum allocation, more regulation is justified,since someone must make choices about allocation.” 95 However, the notion thatthe electromagnetic spectrum is scarce has come into question, and because of this,doubt in the continued validity of the scarcity rationale resounds, and the foundationof related FCC broadcast regulation is in disrepair.

If the electromagnetic spectrum is in fact on the verge of no longer beingscarce, this should spell fewer limitations to access and ultimately translate toincreased 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 Borkdiminished the concept of spectrum scarcity when he compared the characteristicsof the broadcast and print media, and proclaimed that scarcity is “a distinctionwithout a difference.”96 He added that “[e]mploying the scarcity concept as ananalytical tool, particularly with respect to new and unforeseen technologies,inevitably leads to strained reasoning and artificial results.”97 Judge Bork thenexplains his logic:

All economic goods are scarce, not least the newsprint, ink, delivery trucks,computers, and other resources that go into the production anddissemination of print journalism. Not everyone who wishes to publish anewspaper, 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

2001] Rowland 85

98 Id. 99 Id. at 509.

100 Id. at 508.101 Id. at 509.102 See generally In re Modification of FM Broadcast Station Rules to Increase the Availability of

Commercial FM Broadcast Assignments, 78 F.C.C.2d 1235, ¶ 7 (1980).

attempt to use a universal fact as a distinguishing principle necessarily leadsto analytical confusion.98

“Bork’s logic carries him to the conclusion that the scarcity argument forgovernmental regulation of broadcast licensees is an incapable rationale forbroadcast content regulation.”99

The following statements further reveal Judge Bork’s mindset inTelecommunications Research:

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

Neither is content regulation explained by the fact that broadcasters face theproblem of interference, so that the government must define usablefrequencies and protect those frequencies from encroachment. Thisgovernmental definition of frequencies is another instance of a universalfact that does not offer an explanatory principle for differing treatment. Apublisher can deliver his newspapers only because government providesstreets and regulates traffic on the streets by allocating rights of way. Yet noone would contend that the necessity for these governmental functions,which are certainly analogous to the government’s function in allocatingbroadcast frequencies, could justify regulation of the content of anewspaper to ensure that it serves the needs of the citizens.101

Given the technology of 1986, Bork’s logic seems baffling. Beyond efforts toincrease the number of licensees by reducing standards for interference,102 there wassimply no possible way the government could continue to allocate more and morefrequencies for broadcast use. To put it in layman’s terms, a publisher is free to tosshis newspaper on the lawn of one who already receives the newspaper of hiscompetitor, but one who wishes to broadcast cannot legally hijack the frequencylicensed to another and start his own radio or television service. The fact that thefundamental tools and supplies to produce a newspaper are scarce resources isconsiderate recognition of the expenses related to publishing; however, the physical


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 travelon one wire as a single file. Instead, it is broken into packets. Each packet “knows” the address ofthe destination computer, and each packet finds its own way to that destination. When all the packetsreach the destination they are reassembled into the single file. This creates an architecture thatrepresents the opposite of the “choke-point” theory that has been mentioned above. If one path is“down”, the data simply finds another route.

104 See Thomas E. Weber, E-World: Net’s Explosive Growth Spurs Entrepreneurs to Build Better Links ,THE WALL ST. J., Dec. 4, 2000, at B1.

105 Se e g en e ra l l y Doug Vernier, Inter ference on the FM Band , athttp://www.vsoft.com/MWBCSBEPaper/interference_paper.htm (last visited Jan. 21, 2001).

106 Stanford University School of Law, Lawrence Lessig Resume, at http://cyberlaw.stanford.edu/lessig/bio/index.html (last visited Jan. 25, 2001). Lawrence Lessig is a Professor of Law at theStanford Law School. See id. He was the Berkman Professor of Law at Harvard Law School. See id.

impossibility of transmitting more than one message on the same broadcastfrequency is a law of nature that Bork brushed aside.

B. TCP/IP – A Stake In The Heart Of Scarcity, A Savior For Diversity

The Internet is a communications revolution. 103 With minimal barriers toentry, 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 toentry into the electronic broadcast media. As a result, the effect of the Internet onnotions of media fairness and diversity are twofold (at least).

It is unlikely one may ascertain accurate numbers as to how many personslog-on, how many websites are designed and uploaded, or how the volume ofelectronic mail travels upon the Internet on a daily basis. The Google search enginehas 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 theallocation of broadcast licenses and the inherent fairness of broadcast content isunsettled. Whether it should weigh in to the equation can be hotly debated.

Meanwhile, certain technologies used by the Internet are being proposed foruse in the propagation of radio and television signals. One such proposal wouldundercut much of the logic and foundational principles from the FCC’s regulatoryscheme.

Typically, broadcast interference occurs when two or more signals arepropagated on the same or adjacent frequencies in the same geographic area. Whenthis occurs, signals are interfered with and are not listenable.105 Stanford LawProfessor Lawrence Lessig106 claims that the problem of interference is actually

2001] Rowland 87

From 1991 to 1997, he was a professor at the University of Chicago Law School. See id. He graduatedfrom Yale Law School in 1989, and then clerked for Judge Richard Posner of the 7th Circuit Court ofAppeals, and Justice Antonin Scalia on the Supreme Court. See id. Lessig teaches and writes in theareas of constitutional law, contracts, comparative constitutional law, and the law of cyberspace. Seeid. In 1999-2000, he was a fellow at the Wissenschaftskolleg zu Berlin. See id.

107 See LESSIG, supra note 94, 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 thepublic Internet. See id. Lessig explains that these data packets should be thought of as small packagesof information wrapped in an envelope with the address stamped on the outside. See id.

109 Id. at 184.110 Id.111 Id.112 See Apple Computers, Inc., at http://www.apple.com/airport/ (stating that the AirPort is

a device that allows wireless Internet access within a given radius of the device, and one can set up theAirPort system and connect to the Internet with any properly configured computer without being“wired” to a network) (last visited Jan. 23, 2001).

caused by dumb receivers, not conflicting signals. He states that if broadcastreceivers were designed so that they knew which message to focus on, interferencewould cease and spectrum scarcity would be nonexistent.107

Lessig’s idea works because it would transform the nature of thearchitecture of the broadcast paradigm into a packeted data distribution model notunlike TCP/IP,108 the data routing method utilized by the Internet. Lessig says, “asmart receiver could distinguish the transmissions. It could tell which it was toreceive and ignore all others, without any coordination of the transmissions.”109 Histheory continues by explaining that broadcasting could operate similarly whereby thetechnology of receivers would regulate reception, instead of the governmentregulating transmission due to the confines of the electromagnetic spectrum. Thiswould create a “spread spectrum” design wherein no sender would have to have aparticular portion of the spectrum allocated exclusively for his or her use.“Everyone could be a broadcaster.”110

This alternative architecture for broadcasting eliminates much of the needfor government regulation. It facilitates a vastly more efficient use of the finitespectrum and creates greater competition among current packet transmissionmethods, such as copper wire or fiber-optic cable. Lessig challenges the reader toconsider whether transformation of the architecture of broadcasting into a packeteddata delivery system would result in a model that is “more consistent with FirstAmendment designs.”111 Apple Computers has already begun marketing theAirPort, which is a wireless Internet delivery system designed to be used within ahome or small office. 112 Such an item serves as a model of what, with greatertransmission power, could deliver digital broadcast signals to smart receivers.


113 Se e g en e ra l l y FCC Mass Media Bureau, LPFM Fact Shee t , athttp://www.fcc.gov/mmb/prd/lpfm/ (last visited Jan. 25, 2001).

VIII. CONCLUDING REMARKS - OPINIONS

Setting aside speculation on the future mode of broadcasting, what existstoday appears to be in a state of limbo. The present state of affairs is marked byweak defenses to questions of fundamental fairness in news and editorial content,less diversity in ownership, and great monopolies that represent choke-points onspeech. All are contrary to past policy with no legitimate remedies realistically insight.

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 mediato hold licenses granted by our government of the people, while simultaneouslyenjoying the liberty to pour out half-truths and falsehoods upon us? If market forcestruly allow truth to rise to the top, it appears a generation (at least) has been lostawaiting its ascension! Certainly what is “truth” is in the eyes (or ears) of thebeholder, but the longer the debate over truth lasts, the more numbed societybecomes by the mire. Many people are not turning the channel. Many people arenot keen to the dulling of their senses and take the messenger and the message atface value. I contend that the media’s “they can just tune out” defense whiletechnically true, is disingenuous and intentionally ignores reality. What media mogulwould suggest otherwise?

Diversity has been dramatically cut because of the ownership rules changes.Recently the Commission has made efforts to facilitate diversity by allowing thelicensing of Low Power FM (LPFM) licenses. LPFM will likely create more signalinterference as thousands of frequencies will be allocated in the already crowdedallocable frequency range. The LPFM operator may get his voice on the air, but thesignal strength of such LPFM licenses will be so minimal as to render the licensevalueless, and it’s a good thing, because they must be used for non-commercialpurposes and are also non-transferable.113 It is clear that with LPFM theCommission is attempting to right the wrong created by the deregulation ofownership rules which created the blessed few monopolies in radio today.

LPFM will prove to be an inadequate remedy. It is not just the opportunityto be heard which has been lost by the minority or “mom and pop” broadcaster tomonopolization, but the opportunity for advertising sponsors to patronize suchbroadcasters as well. An era of “mom and pop” and minority-owned broadcasting

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114 See ZUCKMAN, supra note 26, at 1199-201.

which in earnest delivered the news, reflected the views, and catered to the listenersof the local community has been blighted by the Commission that originally enabledit.

The trend towards monopoly ownership in radio and television serve tocreate more discernible control centers for mass communication, but concerns overmedia monopolization reach beyond notions of anti-competitiveness. Two effectsare enabled by the elimination of the broadcast paradigm that fostered a multiplicityof owners.

First, a monopoly can propagate the domineering single voice of centralizedmanagement. If such a management group has an agenda, their message can bebroadly forced upon the public by both subtle and overt methods with littlerecourse. Often this fear is allayed by the response previously mentioned whichsuggests that people simply should turn the channel.

Second, the current choke-point design of America’s media ownershipscheme could actually serve a darker purpose. If the public will not allow thegovernment to control all broadcast media, what is the next best thing? Logicdictates that the next best thing is the consolidation of ownership into largecentralized ownership groups. Fifty large broadcaster companies are easier tomonitor, regulate and influence than 500! If a politician can get one monopolisticbroadcast manager in his back pocket he now has influence over hundreds ofbroadcast stations, whereas prior to deregulation the most the politician couldinfluence with such a relationship was twenty-one.114

The opposite of entirely centralized control of broadcasting is completediversity – this is what the FCC was striving for up until fifteen years ago. Diversitylets the government get away with nothing, while complete centralization canfacilitate limitless government mischief. America is by no means on the verge ofsuch centralized media control as was experienced in Eastern Europe during theCold 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 toLawrence Lessig’s vision of an Internet-like architecture being utilized forbroadcasting. One must wonder whether such a free-wheeling use of the airwaveswould be wise. Would the truth continue to rise to the top, or would such a systemmerely create noise? Perhaps after reviewing the conflicted path the FCC has takenin bringing the broadcast industry to today’s state of existence, those who consider


115 See id. at 124 (quoting from Int’l Society for Krishna Consciousness v. Lee, 505 U.S. 672, 679(1992) and describing a public forum as public property that has the traditional purpose of the freeexchange of ideas as shown by a long-standing historical practice of permitting free speech).

116 LESSIG, supra note 94, at 185.

fairness and diversity, and revere balance and integrity will begin to rethink thearchitectural structure of the broadcast media as Lessig has done, and ponderwhether control and fair play might best be regulated at the point of reception, ratherthan the source.

Reenactment of the fairness doctrine is likely an option that theCommission should not consider. The First Amendment rights of broadcasters haveevolved to a level of freedom previously unattained. The curtailment ofbroadcasters’ new-found freedom would pose predictable difficulties. What the FCCshould discern from its policy and regulatory history is that it must make all effortsto act in concurrence with technological changes and societal demands. From amacro perspective, the Commission has worked in patchwork fashion to craftdiversity and fairness regulatory schemes that have largely failed. In 1985, thefairness doctrine ceased to ensure that the public at large received even a modicumof balance in news and information, while ownership restrictions have never resultedin much more than the prevention of monopolistic control by the few. Thoseregulatory schemes are now part of a bygone era. The current regulatory scheme hasmade fairness the burden of the listener by submitting to the notion that listenersand 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 longerbe their worry. The resolution to these issues could lie in the architectural model ofthe Internet if it becomes the model for the broadcast media. The ability to transmitinformation, music, or other data on a shared frequency in a given geographic areausing a so-called “smart receiver” represents a monumental breakthrough that wouldmake the airwaves virtually equivalent to a public forum.115 Such an environmentwould more nearly reflect First Amendment notions of free speech and unbridledexpression, and more thoroughly facilitate Holmes’ marketplace of ideas. In Lessig’swords, “A faithful reading [of the Constitution] would reject an architecture that sostrongly concentrates power. The model for speech that the framers embraced wasthe model of the Internet – distributed, noncentralized, fully free and diverse.”116

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