For Almost 60 Years the Supreme Court Has Articulated a Bold Aspiration for the First Amendment

SETTING LIMITS ON MEDIA OWNERSHIP:

PROMOTING THE PUBLIC INTEREST WHILE PASSING THE COURT TEST

Statement of

Dr. Mark Cooper

Director of Research

Media Monopoly?

Should the FCC Permit the Consolidation of Media Ownership?

Russell Senate Office Building

Washington, D.C.

May 9, 2003

Commissioners Copps and Adelstein have repeatedly cautioned that the record in these proceedings is not complete. I agree, but I want to take a somewhat different tack today. I submit that what is in the record does not support a substantial relaxation of the limits on media ownership. In fact, in some areas is cries out for a strengthening of the limits. To make this point, I will review three areas of the record – law, media use and economics.

Law

For almost 60 years the Supreme Court has articulated a bold aspiration for the First Amendment in the age of electronic mass media. It has declared that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Hold that phrase on you tongue a moment. The Court did not talk about some or a lot – its set the objective as the “widest possible dissemination,” a truly bold aspiration. The Court has recognized that the press is not just an economic commodity “like peanuts or potatoes,” to use Justice Frankfuter’s phrase. It has refused to treat citizens as just passive listeners, couch potatoes, but has envisioned them as active speakers. Because electronic broadcast voices are so powerful and scarce, the court has declared that “where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast.” And the court has made it clear that “Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.”

The political needs of citizens take precedence over the economic needs of consumers. Economics focuses on increasing efficiency and maximizing profit. Civic discourse focuses on participation and understanding.

In the two decades since the deregulation of the broadcast media was kicked off by a chairman of the FCC who declared that television is just a toaster with pictures, the FCC and the antitrust authorities have sold this bold aspiration short. And, in the past two years, the current FCC Chairman has carried this campaign to new heights. By belittling the public interest standard and attacking the watchdog role of journalism, he has replaced the citizen’s rights to speak with the right of media conglomerates to make a profit as the objective of First Amendment policy.

Media Use

The empirical evidence before the Federal Communications Commission shows that there has been no great revolution of news sources. TV and newspapers still dominate, especially local news. The number of people who say that TV and newspapers are their primary source of news is twelve times greater than those who say they rely primarily on the Internet. When you examine where people go on the Internet for news, you discover it is primarily to the web sites of TV stations and newspapers. TV and newspapers are cited eight times more frequently than radio, and when you look at radio news, you discover it contains almost no independent reporting.

Newspapers provide original, in-depth investigative reporting and coverage of a wide range of local events. TV provides vivid images. Further, there is no simple common “currency” by which TV viewing and newspaper reading can be measured and little substitutability between them. Different media are used in different ways, have different impacts, and play different roles in civic discourse. We are an increasingly diverse population in and increasingly complex and interconnected world. We need a more diverse, accessible, responsible and responsive media. That is not what we have.

Economics

Using the standard market definition and the analytic approach applied by the Department of Justice and the Federal Trade Commission for over twenty years, we find that lax First Amendment implementation and weak antitrust enforcement have allowed media markets to become alarmingly concentrated.

Every local newspaper market in the country is already highly concentrated.
Over 95 percent of the local TV and radio markets are highly concentrated.
Even adding together television and newspaper outlets, we find that virtually every local market in the country is concentrated.
National markets for prime time programming are concentrated and national news markets are highly concentrated.

Limits on Media Ownership Based on Rigorous Market Structure Analysis Driven by First Amendment Principles

Those who believe that media policy cannot be reduced to simple economics and that the limits on media ownership should not be relaxed can find strong support in the record. At the same time, I believe that the courts have set an economic standard that can balance First Amendment policy and economic analysis. Market structure analysis driven by First Amendment jurisprudence provides a solid basis for limits on media ownership that serve the public interest, as long as it is based on rigorous analysis and high competitive standards.

Given the importance of civic discourse, responsible public policy should not encourage or tolerate combined local TV/newspaper media markets that are concentrated. It should not allow specific product to become highly concentrated. It should apply these principles based on rigorous analysis of actual usage of the media, not some hope or hype about the next generation of technology deployment.

These simple rules would limit TV-newspaper mergers to a handful and actually reduce the number of markets in which TV-TV mergers would be allowed. This is certainly not what the industry or the Chairman of the FCC had in mind, and perhaps not what critics of the commercial mass media envisioned, but it reflects the bold aspiration of the First Amendment and is based on an empirical and analytical approach that will pass the court test. While holding the limits on concentration of the commercial mass media is critical at this stage, there are at least three other important policies that must move forward if substantial media reform is to be accomplished – resurrecting the public interest obligations of broadcasters, promoting the development of community media, and expanding the role of public broadcasting.