Media Fairness; Regulation, Diversity, Reality

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

www.brianrowland.com

1. Introduction

Frequent complaints of those who observe or scrutinize the media are cries of bias,

unfairness, and agenda peddling. Such charges appear to be on the rise in recent

decades. A likely contributing factor is the Federal Communications Commission’s

(Commission, or FCC) relaxation of regulatory control over broadcast media content

enabling broadcasters to ignore certain fairness regulations previously imposed.1 A

correlative reason for concern is the Commission’s recent changes in broadcast group

ownership rules. The combination of these have arguably reduced diversity of voices in

the electronic media content, and conclusively reduced diversity in its ownership,

raising fears that fairness has been endangered by monopolization and centralized

programming control.

Should the media be held to a higher standard and be regulated into behaving with

integrity? Stephen L. Carter, professor of law at Yale University, asks, “if integrity is

such a good thing – and if we truly have less of it than we ought – then why not

mandate it?”.2 Carter suggests that regulation of media, and especially its political
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).
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
 The essence of this inquiry is the impact of the Commission’s deregulation of

broadcasting has had on content fairness and diversity since the repeal of the fairness

doctrine and the liberalization of ownership rules, or whether all such regulation is

made passé by new media and its accompanying technologies.8 These issues are

entangled and will be examined in separate divisions below.

2. What Bias?

Complaints of media bias come from various directions and concern more than just

the television news industry. Bias may stem from an individualized decision of an

editor or on-air talent or it may conceivably result from a centrally-controlled corporate

mandate.9 Whatever the motivation for the bias, it often appears in recognizable forms10

such as the purposeful exposure of one side of a story, or the omission of seemingly

worthy news items altogether. Further, bias may occur when a disingenuous

association between one person or point of view and that of another is made, resulting

in a false light being cast upon the former, and an untrue relationship created between

the two. Finally, bias or unfairness may occur when news reporters air a story and

report, in bandwagon fashion, what others are reporting without conducting their own

owner. In the opposite, when broadcasters are limited as to the quantity of stations they may own, the result is a greater diversity of
owners that are less easily influenced or controlled. It is noteworthy that the Internet represents the utmost in decentralization both
in the diversity of its content providers and the nature of its architecture.
8
Fairness and diversity are interrelated as will be discovered.
9
See FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137-138 (1940). The Court discusses Congressional intent in the
Communications Act of 1934 to be such that Congress feared that in the absence of certain governmental licensing control, the
public interest would be subordinated if monopolistic control in the broadcast industry occurred.
10
Such forms are recognizable to one who, like myself, has spent a significant time in broadcast management and programming.
independent investigation of facts. These examples are not exhaustive and are not

intended to be ideological in nature. They are merely actual examples.

A. One Side Of The Story

On an October morning before the 2000 presidential election, my wife and I were

going about our business preparing for the day. In the background NBC’s Today Show

was on the television. Katie Couric, NBC Today Show hostess, announced that Texas

Governor George W. Bush had begun a new series of “negative attack ads” against Vice

President Al Gore. This comment alone was not substantial but what followed was

incomprehensible. Without explaining the basis for Bush’s new ad or the content

therein, Couric proceeded to present Gore’s responsive counter-attack ad. The fact that

Gore had released a counter attack ad was not merely mentioned, the entire ad was

played on the air, uninterrupted. At any moment during candidate Gore’s ad, I

expected Couric or co-host Matt Lauer to interrupt with commentary. They didn’t. In

the scope of about a minute one candidate was stigmatized as having launched a

negative attack campaign while the other candidate was portrayed as a victim, and his

responding attack-ad was broadcast free of charge! The harm may not be readily

apparent to the casual observer, but when one realizes that NBC owns 13 television

stations and has over 220 network affiliates, multiplied by the stations’ commercial spot
rates for 30-second morning show ads, the dollar amount in free airtime is considerable

if one considers the cumulative effect.11

Television, and such pro-Democratic Party bias that may occur, is not on an island.

It is easily observed that radio is overrun by those who propagate one-sided stories,

generally propping up the ideology of the Republican Party. Only a few minutes

listening to network radio hosts Rush Limbaugh, Dr. Laura Schlessinger, G. Gordon

Liddy, Michael Savage, or Michael Reagan, proves the point.12

B. No Story At All – The Blind Eye

At first impression, one might think that only a radical revolutionary would publicly

declare approximately one-half of his countrymen “the real enemy.” One would

certainly think that such a statement from a leader already in office would make news.

It did not. The statement was in fact made by Vice President Gore in a debate with

Senator Bill Bradley as both men sought the Democratic Party presidential nomination.

While battling off Bradley’s personal attacks, Gore attempted to redirect the debate by

asserting that Bradley’s fault-finding (with Gore) was not solving any problems and that

the “real enemy” was the Republicans. 13 One has to wonder whether such a comment

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/>.
was accidental, as it coincided with a radio commercial that was currently airing which

stated “[Bradley’s] unfair negative attacks divide us at the very moment we should

stand together against the real enemy --- the Republican candidates.”14 Presumably the

vice president did not intend to declare actual war upon half of his countrymen, but the

choice by the mainstream press15 to ignore such an inappropriate remark begs the

question: what if Bush or McCain had made the same comment of Democrats?

C. Disingenuous Associations

The practice of making illogical connections between persons or ideas that are

actually or contextually dissimilar is a subtle method of placing the original person or

idea (the object) of the statement into the light of the other. Such false associations serve

to chip away at the public image of the object. The comments of NBC News Reporter

Lisa Myers illustrate clearly. Discussing the viewpoints of Senator John Ashcroft, the

Bush nominee for attorney general, Myers reported that “Ashcroft has the same view of

the Second Amendment as Timothy McVeigh.”16 What possible effect can associating

Ashcroft’s view of the Second Amendment with that of McVeigh have other than to

tarnish Ashcroft’s image by a false association which suggests that Ashcroft and

McVeigh are of the same ilk? 17 Was not Thomas Jefferson’s view of the Second
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.
Amendment similar to McVeigh’s? What’s next? Will a news reporter point out that a

certain politician likes wearing brown shirts just like the ones Hitler’s men wore?18

In similar fashion, public persons are frequently identified as “far left”, “liberal left”,

“Christian right”, and “radical right-wing”. When such labels are tossed about by those

attempting to discredit their opponents, is not the media complicit if it does not

challenge the speaker? This complicity debatably allows the speaker to brand the object

with a false association subtly, though possibly as effectively as the overt association

NBC’s Lisa Myers made between Ashcroft and McVeigh .

D. All Aboard The Bandwagon

The 1996 Olympic Games in Atlanta were marred by a bomb explosion in

Centennial Olympic Park on July 27, 1996, wherein one person was killed and over 100

others injured.19 The very next day, security officer Richard Jewell was touted as one of

several security persons responsible for saving lives.20 Jewell’s status as post-bombing

hero declined quickly to nation-wide condemnation because of the print and broadcast

media’s haste to brand him as the guilty party. By July 30th, Jewell was described by the

Atlanta Journal-Constitution as “a former law enforcement officer, [who] fits the profile

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.
of the lone bomber. This profile generally includes a frustrated white man who is a

former police officer, member of the military or police ‘wannabe’ who seeks to become a

hero.”21 After Jewell was cleared of suspicion by the United States Department of

Justice in October of 1996,22 a multitude of lawsuits ensued in which Jewell charged the

likes of NBC, ABC/CapCities, The New York Post, CNN, and Cox Enterprises with

defamation or libel per se.23

The Jewell case is brought forth as an example of a sort of press bandwagon effect

where it is apparent that reporters were biased by the groundswell of the public opinion

they help to create.

It is not within the scope of this inquiry to delve into the actual legal issues and case

rulings of the lawsuits filed by Richard Jewell, however it is incredible to look back at

what was said by the media about this man before his exoneration by the Department of

Justice. Tom Brokaw, news anchor of NBC said, “[t]he speculation is that the FBI is

close to making the case. They probably have enough to arrest him right now, probably

enough to prosecute him, but you always want to have enough to convict him as well.

There are still some holes in this case.”24 In her July 31, 1996 New York Post column,

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>.
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

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

immediately relevant, rather its freedom from prior restraint is preeminent. A prior

restraint is the imposition of a governmental restraint on a publication or speaker before

publication or speech occurs.30 Justice Holmes in Patterson v. Colorado, considered the

free press guarantees of the First Amendment to prevent all prior restraints upon

publications as had been practiced by other governments.31 The essence of Holmes’

belief was that restrictions on the press prior to publication should not be sustained,

instead he believed that statements contrary to the public welfare should be punished

after their publication.32 Subsequently, the Court expressed its opinion that prior

restraints “[bear] a heavy presumption against [their] constitutional validity.”33

In the broadcast context, the rights of a free press have experienced a fundamental

shift over time from a right inhered in the public to “receive suitable access to social,

political, esthetic, moral and other ideas,”34 to a curious position Justice Brennan once

took where he referred to the public’s right to receive a balanced presentation of views

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.
in the past tense,35 to the present position where the Court openly recognizes

broadcasters’ freedom of expression.36

Acknowledgement of broadcasters’ rights to free expression was fortified when the

United States Court of Appeals for the District of Columbia upheld the Commission’s

decision not to enforce the doctrine stating that “[i]n sum, the fairness doctrine in

operation disserves … the broadcaster’s interest in free expression.”37 Driving the point

home, Judge Starr in his concurrence in Syracuse Peace Council, pointed out that the

Commission interpreted the Court’s decision in Red Lion Broadcasting Co. v. FCC, as

rendering the doctrine unconstitutional if regulation “(1) chills speech and results in the

net reduction of the presentation of controversial issues of public importance and (2)

excessively infringes on the editorial discretion of broadcast journalists and involves

unnecessary government intervention to the extent that it is no longer narrowly tailored

to meet its objective.”38

From these examples it is arguable that the focus of free press rights concerning

broadcast licensees has shifted over time from one which previously viewed such rights

as held by the public at large to receive fair and balanced information to one which now

recognizes the free expression rights of broadcasters.

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.
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

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.
marketplace metaphor has dominated the Supreme Court’s interpretation of

the First Amendment in the days since Abrams v. United States.50

4. Exploration: Issues & Standards

Certain questions come to mind before approaching the legal detail-work of the

fairness doctrine, diversity, the Commission’s relaxation of ownership rules, and the

effects of new media. 51

Armed with the fact that for decades the FCC considered the broadcast media a

scarce commodity and utilized that principle to underlie strict ownership policies and

certain content regulation, how or why was such a scheme undone? Did scarcity truly

disappear? Does broadcasting no longer embody unique qualities, such that the vast

quantity of “voices” brought on by the Internet now evens the “diversity of voices”

playing field? How do the years of focus on diversity square with the Commission’s

recent deregulation of ownership rules?

Much of FCC policy seems diametrically opposed. Perhaps it has been driven by the

private interests of the National Association of Broadcasters, the shift in the Court’s

analysis of the First Amendment rights of broadcasters, an increasing unmanageability

of the broadcast spectrum, the onslaught of new media and technology, or some

combination of these and other factors.

Donald E. Lively et al., Constitutional Law: Cases, History, and Dialogues 940 (2d ed. 2000).
50

Forthcoming questions are issues derived from personal observations after 17 years in the radio broadcast industry in positions of
51

management and ownership of stations.

 5. The Doctrine in Depth

The fairness doctrine required a broadcast licensee to provide coverage of vitally

important controversial issues of interest in their local community and to provide a

reasonable opportunity for the presentation of contrasting viewpoints on such issues.52

The fairness doctrine spawned several corresponding doctrines which also affected

broadcasters.53 Those included the Cullman doctrine which provided that when only

one side of a controversial issue was presented during a sponsored program, the other

side must be presented even if no one was willing to pay for the presentation.54 The

Zapple doctrine dictated that stations that sold time to political supporters of one

candidate during an election campaign were required to provide equal time to

supporters of the candidate’s opponent(s).55 When broadcasters politically endorsed or

opposed candidates, they were required to notify the subject and offer equal time to

respond.56 Under the personal attack rule, a broadcaster was obliged to notify and offer

equal time to the victim of an on-air attack wherein that person’s honesty, character,

integrity of similar personal qualities were attacked during the broadcast of a program

concerning a controversial issue of public importance.57

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

fairness doctrine. Preceding partial repeal, the commonly held notion of spectrum

scarcity as the rationale for retaining fairness regulation began to erode as the FCC

started to interpret the public interest standard under the “marketplace of ideas”

concept. FCC Chairman Mark Fowler took the position that regulation was necessary

only when the marketplace failed to protect the public interest.59

In the Commission’s Inquiry Into General Fairness Doctrine Obligations (1985 Fairness

Report), the Commission concluded that the doctrine “operated to chill broadcaster

speech on controversial issues and that recent increases in broadcasting outlets

undercut the need for the doctrine.”60 This decision was not based on Constitutional

grounds, rather it was policy made by congressionally delegated power and FCC

expertise. Interpreting the 1985 Fairness Report the

Federal District Court in Syracuse Peace Council stated that “the fairness doctrine in

operation disserves both the public’s right to diverse sources of information and the

broadcaster’s interest in free expression. Its chilling effect thwarts its intended purpose,

and it results in excessive and unnecessary government intervention into the editorial

processes of broadcast journalists.”61 In Syracuse Peace Council, the court emphasized

58
The Fairness Doctrine was initiated by an FCC report dated 1946, entitled Public Service Responsibilities of Broadcast Licensees.
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.
that its reasoning to support the FCC’s decision to partially repeal the doctrine was

particularly based on the Commission’s findings that “increased diversity of [broadcast]

outlets and programming, [gave adequate grounds for] removal of the first prong [of

the fairness doctrine].”62

By 1999, the last effective remnants of the fairness doctrine were the personal attack

and political editorial rules.63 The Commission came under increasing pressure from

the United States District Court for the District of Columbia to “explain why the public

interest would benefit from rules that raise [certain] policy and constitutional doubts.”64

In response, in early October 2000, the Commission suspended its political editorial and

personal attack rules for 60 days.65 One week later, the District Court issued a writ of

mandamus directing the Commission to immediately repeal the rules, permanently.66

6. Diversity of Ownership

With or without the fairness doctrine in force, the FCC has also sought to satisfy the

public interest standard and ensure a diverse mix of voices in the marketplace with

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.
rules that limited the number of broadcast stations an entity may operate and by

utilizing minority-friendly licensing policies to enhance the number of minority owned

broadcast stations.

The Commission, in 1953, set forth strict regulations limiting to seven the number of

FM, AM, and TV stations one entity could own.67 Later, in 1986, the Court upheld the

use of minority preferences in the broadcast licensing process. These preferences lasted

until 1995.68 The combination of ownership limitations and minority preferences in

license allocation worked to assure diversity of voices on the air.

A. Foundations For Diversity

The need for diverse voices in media to protect the public interest is well

documented. The First Amendment, said Judge Learned Hand, “presupposes that right

conclusions are more likely to be gathered out of a multitude of tongues, than through

any kind of authoritative selection.”69 “[The] Amendment rests on the assumption that

the widest possible dissemination of information from diverse and antagonistic sources

is essential to the welfare of the public, that a free press is a condition of a free society …

Freedom to publish means freedom for all and not for some. Freedom to publish is

guaranteed by the Constitution, but freedom to combine to keep others from publishing
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).
is not. Freedom of the press from governmental interference under the First

Amendment does not sanction repression of that freedom by private interests.”70

B. Media Monopolization Marches Forward

Despite forewarned perils of concentrated ownership and control of the electronic

media,71 in 1985 the Commission raised the number of TV, AM and FM stations one

entity could own to twelve apiece. The number of FM and AM stations was increased

to eighteen in 1992, and to twenty in 1994.72 Later, the Telecommunications Act of 1996

eliminated all numerical limits for the ownership of radio stations. After 1985, the

Commission took a different track with TV ownership rules and prohibited an owner

from holding multiple television stations which had an audience reach of greater than

twenty-five percent in a single market.

Jacksonville, Florida is near the median of the top 100 radio markets in America.73 In

Jacksonville, there are currently three ownership groups that own seventeen of the local

commercial radio stations, and the remaining stations that reach the market are situated

either outside of the market, broadcast during daytime hours only, or are local stations

of inferior signal strength.74 In second largest radio market, Los Angeles, Infinity

Broadcasting and Clear Channel Communications each own eight commercial radio
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.
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 Government’s use

88
See id. at 564, 565.
89
See Adarand supra at 231.
of race-based presumptions in identifying such individuals, violates the equal

protection component of the Fifth Amendment’s Due Process Clause.”90

D. Questioning Change

Curiously, after creating sizable monopolies for a handful of broadcasters91 with the

elimination radio ownership limits, relaxing the television ownership rules, and the loss

of minority preference licensing programs in Adarand, the FCC continues to maintain

that “[o]ne of the most important purposes of our multiple ownership rules is to

encourage diversity in the ownership of broadcast stations so as to foster a diversity of

viewpoints in the material presented over the airwaves.”92

How does a commitment to diversity square with regulations which, in the case of

radio, have radically reduced the number of individual licensees? Does such a scheme

benefit any but the well-heeled who’ve been effectively given a green light to buy out

their competitors? In December 2000, recognizing that diversity of ownership has

decreased, the FCC requested further studies on the effects of minority ownership of the

Telecommunications Act of 1996.93

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

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.
 As noted, the Commission and the courts have reasoned their regulatory efforts to

enhance diversity of ownership and content with the notions of spectrum scarcity.94

“Given an architecture of spectrum allocation, more regulation is justified, since

someone must make choices about allocation.” 95 However, the notion that the

electromagnetic spectrum is scarce has come into question, and because of this, doubt in

the continued validity of the scarcity rationale resounds, and the foundation of related

FCC broadcast regulation is in disrepair.

If the electromagnetic spectrum is in fact on the verge of no longer being scarce, this

should spell fewer limitations to access and ultimately translate to increased diversity.

What might cause this reversal of scarcity?

A. Spectrum Scarcity; Is The Patient Dead Yet?

In 1986, in Telecommunications Research and Action Center v. FCC, Judge Bork

diminished the concept of spectrum scarcity when he compared the characteristics of

the broadcast and print media, and proclaimed that scarcity is “a distinction without a

difference.”96 He added that “[e]mploying the scarcity concept as an analytical tool,

particularly with respect to new and unforeseen technologies, inevitably leads to

strained reasoning and artificial results.”97 “All economic goods are scarce, not least the

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

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.
production and dissemination of print journalism. Not everyone who wishes to publish

a newspaper, or even a pamphlet, may do so. Since scarcity is a universal fact, it can

hardly explain regulation in one context and not another. The attempt to use a

universal fact as a distinguishing principle necessarily leads to analytical confusion.”98

Bork’s logic carries him to the conclusion that the scarcity argument for governmental

regulation of broadcast licensees is an incapable rationale for broadcast content

regulation.99

The following statements reveal Judge Bork’s mindset in Telecommunications Research:

“[W]hile scarcity characterizes both print and broadcast media, [some suggest

that] the latter must be operating under conditions of greater “scarcity” than the

former. This, however, is unpersuasive. There is nothing uniquely scarce about

the broadcast spectrum.”100

“Neither is content regulation explained by the fact that broadcasters face the

problem of interference, so that the government must define usable frequencies

and protect those frequencies from encroachment. This governmental definition

of frequencies is another instance of a universal fact that does not offer an

explanatory principle for differing treatment. A publisher can deliver his

98
Id.
99
Id. at 509.
100
Id. at 508.
 newspapers only because government provides streets and regulates traffic on

the streets by allocating rights of way. Yet no one would contend that the

necessity for these governmental functions, which are certainly analogous to the

government’s function in allocating broadcast frequencies, could justify

regulation of the content of a newspaper to ensure that it serves the needs of the

citizens.”101

Given the technology of 1986, Bork’s logic seems baffling. Beyond efforts to increase the

number of licensees by reducing standards for interference,102 there was simply no

possible way the government could continue to allocate more and more frequencies for

broadcast use. To put it in layman’s terms, a publisher is free to toss his newspaper on

the lawn of one who already receives the newspaper of his competitor, but one who

wishes to broadcast cannot legally hijack the frequency licensed to another and start his

own radio or television service. The fact that the fundamental tools and supplies to

produce a newspaper are scarce resources is considerate recognition of the expenses

related to publishing, however the physical impossibility of transmitting more than one

message on the same broadcast frequency is a law of nature that Bork brushed aside.

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

101
Id. at 509.
102
See generally In the Matter of Modification of FM Broadcast Station Rules to Increase the Availability of Commercial FM
Broadcast Assignments. BC Docket No. 80-90, 78 F.C.C.2d 1235, para 7 (1980).
 The Internet is a communications revolution. 103 With minimal barriers to entry the

Internet permits diversity of views to be communicated on a global scale. The

technology of the Internet holds keys to the possible shattering of barriers to entry into

the electronic broadcast media. As a result, the effect of the Internet on notions of

media fairness and diversity are twofold (at least).

It’s unlikely one may ascertain accurate numbers as to how many persons log-on,

how many websites are designed and uploaded, or how the volume of electronic mail

travels upon the Internet on a daily basis. The Google search engine has now counted

1.3 billion web pages.104 Content diversity is steadily increasing. How this type of global

diversity affects the Commission’s regulation of the allocation of broadcast licenses and

the inherent fairness of broadcast content is unsettled. Whether it should weigh in to

the equation can be hotly debated.

Meanwhile, certain technologies used by the Internet are being proposed for use in

the propagation of radio and television signals. One such proposal would undercut

much of the logic and foundational principles from the FCC’s regulatory scheme.

Typically, broadcast interference occurs when two or more signals are propagated on

the same or adjacent frequencies in the same geographic area. When this occurs, signals

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.
are cancelled out and are not listenable.105 Stanford Law Professor Lawrence Lessig106

claims that the problem of interference is actually caused by dumb receivers, not

conflicting signals. He states that if broadcast receivers were designed so that they

knew which message to focus on, interference would cease and spectrum scarcity

would be nonexistent.107

Lessig’s idea works because it would transform the nature of the architecture of the

broadcast paradigm into a packeted data distribution model not unlike TCP/IP,108 the

data routing method utilized by the Internet. Lessig says, “a smart receiver could

distinguish the transmissions. It could tell which it was to receive and ignore all others,

without any coordination of the transmissions.”109 His theory continues by explaining

that broadcasting could operate similarly whereby the technology of receivers would

regulate reception, instead of the government regulating transmission due to the

confines of the electromagnetic spectrum. This would create a “spread spectrum”

design wherein no sender would have to have a particular portion of the spectrum

allocated exclusively for his or her use. “Everyone could be a broadcaster.”110

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.
110
Id.
 This alternative architecture for broadcasting that eliminates much of the need for

government regulation. It facilitates a vastly more efficient use of the finite spectrum

and creates greater competition among current packet transmission methods such as

copper wire or fiber-optic cable. Lessig challenges the reader to consider whether

transformation of the architecture of broadcasting into a packeted data delivery system

would result in a model that is “more consistent with First Amendment designs.”111

Apple Computers has already begun marketing the AirPort which is a wireless Internet

delivery system designed to be used within a home or small office. 112 Such an item

serves as a model of what, with greater transmission power, could deliver digital

broadcast signals to smart receivers.

8. Concluding Remarks - Opinions

Setting aside speculation on the future mode of broadcasting, what exists today

appears to be in a state of limbo. The present state of affairs is marked by weak

defenses to questions of fundamental fairness in news and editorial content, less

diversity in ownership, and great monopolies that represent choke-points on speech.

All are contrary to past policy with no legitimate remedies realistically in sight.

Questions of media fairness are all too often met with “avert the eyes” or “change

the channel” responses. Is it acceptable for those in the broadcast media to hold licenses

Id.
111

The AirPort is a device that allows wireless Internet access within a given radius of the device. One can set up the AirPort system
112

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/>.
granted by our government of the people, while simultaneously enjoying the liberty to

pour out half-truths and falsehoods upon us? If market forces truly allow truth to rise

to the top, it appears a generation (at least) has been lost awaiting its ascension!

Certainly what is “truth” is in the eyes (or ears) of the beholder, but the longer the

debate over truth lasts, the more numbed society becomes by the mire. Many people

are not turning the channel. Many people are not keen to the dulling of their senses and

take the messenger and the message at face value. I contend that the media’s “they can

just tune out” defense while technically true, is disingenuous and intentionally ignores

reality. What media mogul would suggest otherwise?

Diversity has been dramatically cut because of the ownership rules changes.

Recently the Commission has made efforts to facilitate diversity by allowing the

licensing of Low Power FM (LPFM) licenses. LPFM will likely create more signal

interference as thousands of frequencies will be allocated in the already crowded

allocable frequency range. The LPFM operator may get his voice on the air, but the

signal strength of such LPFM licenses will be so minimal as to render the license

valueless, and it’s a good thing, because they must be used for non-profit purposes and

are also non-transferable.113 It is clear that with LPFM the Commission is attempting to

right the wrong created by the deregulation of ownership rules which created the

blessed few monopolies in radio today.

113
See generally FCC Mass Media Bureau LPFM Fact Sheet, (visited Jan. 25, 2001) <http://www.fcc.gov/mmb/prd/lpfm/>.
 LPFM will prove to be an inadequate remedy. It is not just the opportunity to be

heard which has been lost by the minority or “mom and pop” broadcaster to

monopolization, but the opportunity for advertising sponsors to patronize such

broadcasters as well. An era of “mom and pop” and minority-owned broadcasting

which in earnest delivered the news, reflected the views, and catered to the listeners of

the local community has been blighted by the Commission that originally enabled it.

The trend towards monopoly ownership in radio and television serve to create more

discernible control centers for mass communication, but concerns over media

monopolization reach beyond notions of anti-competitiveness. Two effects are enabled

by the elimination of the broadcast paradigm that fostered a multiplicity of owners.

First, a monopoly can propagate the domineering single voice of centralized

management. If such a management group has an agenda, their message can be

broadly forced upon the public by both subtle and overt methods with little recourse.

Often this fear is allayed by the response previously mentioned which suggests that

people simply should turn the channel.

Second, the current choke-point design of America’s media ownership scheme could

actually serve a darker purpose. If the public will not allow the government to control

all broadcast media, what is the next best thing? Logic dictates that the next best thing

is the consolidation of ownership into large centralized ownership groups. Fifty large
broadcaster companies are easier to monitor, regulate and influence than 500! If a

politician can get one monopolistic broadcast manager in his back pocket he now has

influence over hundreds of broadcast stations, whereas prior to deregulation the most

the politician could influence with such a relationship was twenty-one.114

The opposite of entirely centralized control of broadcasting is complete diversity –

this is what the FCC was striving for up until fifteen years ago. Diversity lets the

government get away with nothing, while complete centralization can facilitate limitless

government mischief. America is by no means on the verge of such centralized media

control as was experienced in Eastern Europe during the Cold War or in China today,

but the trend is in that direction.

It is a long road from Justice Holmes’ notion of a marketplace of ideas to Lawrence

Lessig’s vision of an Internet-like architecture being utilized for broadcasting. One must

wonder whether such a free-wheeling use of the airwaves would be wise. Would the

truth continue to rise to the top, or would such a system merely create noise? Perhaps

after reviewing the conflicted path the FCC has taken in bringing the broadcast industry

to today’s state of existence, those who consider fairness and diversity, and revere

balance and integrity will begin to rethink the architectural structure of the broadcast

media as Lessig has done, and ponder whether control and fair play might best be

regulated at the point of reception, rather than the source.

114
See note 67, supra.
 Reenactment of the fairness doctrine is likely an option that the Commission should

not consider. The First Amendment rights of broadcasters have evolved to a level of

freedom previously unattained. The curtailment of broadcasters’ new-found freedom

would pose predictable difficulties. What the FCC should discern from its policy and

regulatory history is that it must make all efforts to act in concurrence with

technological changes and societal demands. From a macro perspective, the

Commission has worked in patchwork fashion to craft diversity and fairness regulatory

schemes that have largely failed. In 1985 the fairness doctrine ceased to ensure that the

public at large received even a modicum of balance in news and information, while

ownership restrictions have never resulted in much more than the prevention of

monopolistic control by the few. Those regulatory schemes are now part of a bygone

era. The current regulatory scheme has made fairness the burden of the listener by

submitting to the notion that listeners and viewers should merely tune-out, while the

Commission has made a “last gasp” effort to foster diversity by doling out relatively

worthless LPFM licenses. Too little, too late on both counts.

The Commission’s failures with fairness and diversity will perhaps no longer be

their worry. The resolution to these issues could lie in the architectural model of the

Internet if it becomes the model for the broadcast media. The ability to transmit

information, music, or other data on a shared frequency in a given geographic area

using a so-called “smart receiver” represents a monumental breakthrough that would

make the airwaves virtually equivalent to a public forum.115 Such an environment

would more nearly reflect First Amendment notions of free speech and unbridled

expression, and more thoroughly facilitate Holmes’ marketplace of ideas. In Lessig’s

words, “A faithful reading [of the Constitution] would reject an architecture that so

strongly concentrates power. The model for speech that the framers embraced was the

model of the Internet – distributed, noncentralized, fully free and diverse.”116

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.