When the Fcc Was Attempting to Again Deregulate the Media in 2003 What Was It Trying to Do?
 | The FCC'south New Media Ownership Rules: |
| Midweek, Jun. 11, 2003 |
On June ii, 2003, the Federal Communications Commission (FCC) announced its decision to relax media ownership rules. The decision was a close telephone call, the event of a 3-2 vote among the commissioners. Commentary has focused on three major changes in the rules. First, a single company may now own Television receiver stations reaching, at nearly, 45 percentage of United states of america households. Previously, a single company could own TV stations reaching, at most, 35 percentage of U.S. households. Second, the prior ban against a unmarried company's owning both a broadcast outlet and a newspaper in a given market has been effectively lifted - in all just the smallest markets (those with less than 9 TV stations). Tertiary, and finally, the rules increase individual companies' ability to ain more than i TV station. Duopolies are permitted in markets where there are at least five TV stations. In markets with eighteen or more stations, triopolies may be- as long equally no more one of the top 4 stations belongs to a given owner. The FCC has argued that these more than flexible rules volition aid the public interest, and serve the agency'southward ain mandate. For instance, in his press statement regarding the new rules, Commissioner Michael Powell defended them as having been designed to "promote the cherished values of diversity [of viewpoint], localism and contest." Only opponents, including the two dissenting Commissioners, argue that the new rules will result in mergers that will leave the largest conglomerates in command of the majority of media. This concentrated buying, they believe, will pb to Americans receiving less, and more homogenous, news and stance (specially local coverage). Legislators and public advocacy groups have already vowed to claiming the new rules in court. Recently, opponents have been successful in challenging FCC orders. However, there is reason to believe they will not succeed here. A Brief History of Media Regulation The regulation (and deregulation) of media buying has a long history in the U.Due south.. In 1912, passage of the Radio Act prohibited the operation of a radio station without government permission. For a while, the radio industry was allowed to cocky-regulate, but the attempt was a disaster - resulting in a cacophony of interference over the airwaves, due to "spectrum scarcity," the limited number of viable frequencies over which to broadcast. Thus, in 1927, with a new Radio Act, government resumed regulation of broadcast media. And in 1934, the Communications Human action created the FCC and granted the agency the exclusive power to regulate the broadcast manufacture, mainly through licensing schemes. Gradually, the tide turned towards media deregulation. In 1984, the Cable Act lifted local charge per unit regulation. The result was pricier just higher quality cable television. In 1992, a new Cable Act followed, which re-regulated rates, and thus lowered program quality. Withal, in 1994, the rate controls were eased again. In 1996, the Telecommunications Act was enacted. It was aimed at increasing contest in local, long distance, and cable Idiot box markets, and some have argued that it was extremely successful in doing and then. Among other measures, the Telecommunications Deed repealed cross-ownership rules for telephone/cable, cable/broadcast, and cable/network combinations. It also increased the maximum per centum of U.Due south. households that a single broadcaster could accomplish, from 25 to 35 pct. And it required the FCC to review media buying rules biennially, to make up one's mind whether they are "necessary in the public interest as a result of competition." It was pursuant to this final mandate that the FCC created the new set up of media ownership rules that were just announced. The Test a Courtroom Will Utilize to Evaluate the New Rules The value of diversity of viewpoints that Commissioner Powell invoked has long been recognized every bit important in the Start Amendment context, and in the context of broadcast regulation. But, crucially, the Courtroom has not withal forced the FCC to have measures to ensure this kind of diverseness. Instead, it has, at times, allowed the FCC to use the diversity of viewpoints as a justification for some of its by regulation decisions when it so chose. Every bit early on every bit 1944, in Associated Press v. United States, the Supreme Court emphasized the value of diversity of viewpoints in itself - citing the importance of the "widest possible dissemination of information from various and antagonistic sources." And in 1969, in Scarlet Lion Dissemination Co. 5. FCC, the Court embraced diversity of viewpoints in the circulate context in particular. More than specifically, in Red Lion the Court upheld the FCC'due south (at present defunct) "fairness doctrine," which required Television receiver stations to present both sides of a given upshot, despite a First Amendment challenge. Still, it grounded the doctrine's constitutionality on the fact of "spectrum scarcity" - at present a less urgent trouble cheers to consumer access to cable and satellite media. Moreover, it did not concord that the FCC was required to adopt some version of the fairness doctrine; it simply held that the FCC had the latitude to do so if it so chose. After, in 1978, in National Citizens Committee for Broadcasting five. FCC, the Courtroom affirmed the FCC's decision to bar cross-ownerships of newspapers and broadcast stations in the same locality, and to require certain owners with that combination to divest themselves of either the newspaper or the circulate station. Neither the Administrative Procedure Act's ban on "capricious and capricious" decisionmaking, nor the First Amendment rights of the media companies, the Court held, barred the FCC from reaching its determination. Rather, the decision was a reasonable means of furthering the FCC'due south interest in both diversity and contest. Ironically, the very same logic that persuaded the Court to allow the FCC to impose rules against cross-ownership in NCCB will probably convince the Court to also allow the new relaxation of those rules, as well. Again, the test, in effect, will exist reasonableness - and the rules will very probably pass the examination. Why the New Rules Are Likely to Survive Court Challenges Following NCCB, the Court (or the lower federal courts, if the Court declines review) will inquire whether the new rules are a reasonable means of furthering the Commission'due south stated interests in localism, variety and competition. Information technology volition probably answer yeah to this question. In the past, the Courtroom has recognized that a ban on cross-buying is ane way of attempting to reach multifariousness. But information technology has never said that such a ban is ready in rock. In addition, the Court's past decisions on this point were issued in an era of spectrum scarcity. Specially since the advent of cablevision, that era is long gone. In part for this reason, the U.S. Courtroom of Appeals for the District of Columbia Circuit, which reviews FCC actions, recently expressed skepticism almost the standing need for the old regulatory measures, including the cross-ownership bans, in the new media surround. The D.C. Circuit'due south pronouncements (and its recent rejections of FCC rules) are likely what motivated Commissioner Powell to predict that "without . . . surgery, the [erstwhile] rules would assuredly meet a swift death." In the new era of media abundance, it is regulation, non deregulation, that is nigh suspect. For all of these reasons, the Court may also acknowledge that in that location are other reasonable means for the FCC to attempt to endeavour to achieve all three of its primary goals - and, more generally, to perform its basic chore of regulating circulate in the public interest. And it may well conclude that the new rules permitting media consolidation are one such mode. Accordingly, any claim that the new rules constitute "arbitrary and capricious" decisionmaking in violation of the APA seems likely to fail absent-minded a truly impoverished FCC record. Moreover, First Amendment challenges to the new rules will not be evaluated nether the courts' most stringent tests considering the rules are not content-based; they apply as to all companies, no matter what material they seek to broadcast. Because the rules make no distinctions based on political, economical or social views of individual owners, they are likely to pass First Amendment muster. In the stop, only time - and empirical testify - can evidence whether the new FCC rules will raise or stifle the diversity of viewpoints available through the broadcast media. Media consolidation and viewpoint diversification may not be incompatible in a time when networks and other traditional media are increasingly struggling to compete with newer media. Accordingly, cross-ownership rules which were originally implemented to encourage media competition (by disallowing joint ownership within the same markets) may rightfully be thought as well stringent today. Afterward all, today cable, circulate, and the print press do not operate in the same markets, at least co-ordinate to the antitrust law. Affirmation of the new rules may result in temporary monopolies or near-monopolies. Yet in the long run, the new rules may permit companies to compete meaningfully and provide consumers with wider options - an outcome that courts are also likely to see as well within the FCC's "public interest" mandate.
Source: https://supreme.findlaw.com/legal-commentary/the-fccs-new-media-ownership-rules.html
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