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WASHINGTON AND LEE UNIVERSITY SCHOOL OF LAW Washington Lee Public Law and Legal Theory Research Paper Series Working Paper No 01-03 November 2000 ENHANCING THE SPECTRUM: MEDIA POWER DEMOCRACY AND THE MARKETPLACE OF IDEAS RONALD J. KROTOSZYNSKL JR A. RICHARD M. BLAIKLOCK A final version of this working paper will be published in University of Illinois Law Review This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://papers.ssrn.com/paper.taf?abstractid=253054 An index to the working papers in the Washington and Lee University School of Law Is located at http://aw.wlu.edu/lawcenter/papers

Washington & Lee Public Law and Legal Theory Research Paper Series Working Paper No. 01-03 November 2000 ENHANCING THE SPECTRUM: MEDIA POWER, DEMOCRACY, AND THE MARKETPLACE OF IDEAS RONALD J. KROTOSZYNSKI, JR A. RICHARD M. BLAIKLOCK A final version of this working paper will be published in University of Illinois Law Review (2000) This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=253054 An index to the working papers in the Washington and Lee University School of Law Is located at http://law.wlu.edu/lawcenter/papers

ENHANCING THE SPECTRUM: MEDIA POWER DEMOCRACY AND THE MARKETPLACE OF IDEAS A. Richard m. blaiklock ** In their article, Professor Krotos zynski and Mr. Blaiklock assess diversity and broadcast me dia regulation in contemporary America. First, the authors consider the Federal Communica tions Commission's regulatory attempts to promote di ity in television and radio broadcasting. The authors discuss the commission 's difficulties in defining and characterizing "diversity and fur- ther note some of the inconsistencies inherent in the Commission's dual emphasis on competition and diversity in broadcast programming, also mention ing the threat to democratic values posed by un duly concentrated media ownership. Next, the authors chronicle the burgeoning judicial hostil ity to race-conscious governmental policies and practices. They discuss the related shift from intermediate scrutiny to strict scrutiny in equal protection jurisprudence and the Commission's frantic efforts to provide justifications for its increasingly endangered race-based diversity Associate Professor of Law, Washington and Lee University School of * Associate, Ice Miller. B A, Hanover colt J D. Indiana Univer- sity School of Law Indianapolis. The views expressed in this article are those of Mr. Blaiklock, and not those of his employer Ms. Jean Campbell, William and Mary Class of 1999, provided invaluable research assistance on this article. In addition, the faculty at the wil liam and Mary School of Law kindly invited Professor Kr ent this article incident to a faculty colloquium; the authors acknowledge the helpful and constructive comments and suggestions offered by William and Mary's faculty. We also appreciate the helpful comments and suggestions provided by Charles Buck Logan and Professors Michael Heise, tko, Neal Devins, Alan Meese, Michelle Adams, Dan Cole, Betsy Wil born Malloy, Lilli Levi, and Lyrissa Lidsky on earlier drafts of this arti cle. As always, any errors or omissions are ours alone 101

KROTO.DOC 12/07/00 9:35 AM 101 ENHANCING THE SPECTRUM: MEDIA POWER, DEMOCRACY, AND THE MARKETPLACE OF IDEAS Ronald J. Krotoszynski, Jr.* A. Richard M. Blaiklock** In their article, Professor Krotoszynski and Mr. Blaiklock assess diversity and broadcast me￾dia regulation in contemporary America. First, the authors consider the Federal Communications Commission’s regulatory attempts to promote di￾versity in television and radio broadcasting. The authors discuss the Commission’s difficulties in defining and characterizing “ diversity” and fur￾ther note some of the inconsistencies inherent in the Commission’s dual emphasis on competition and diversity in broadcast programming, also mention￾ing the threat to democratic values posed by un￾duly concentrated media ownership. Next, the authors chronicle the burgeoning judicial hostil￾ity to race-conscious governmental policies and practices. They discuss the related shift from intermediate scrutiny to strict scrutiny in equal protection jurisprudence and the Commission’s frantic efforts to provide justifications for its increasingly endangered race-based diversity * Associate Professor of Law, Washington and Lee University School of Law. ** Associate, Ice Miller. B.A., Hanover College; J.D., Indiana Univer￾sity School of Law— Indianapolis. The views expressed in this article are those of Mr. Blaiklock, and not those of his employer. Ms. Jean Campbell, William and Mary Class of 1999, provided invaluable research assistance on this article. In addition, the faculty at the Wil￾liam and Mary School of Law kindly invited Professor Krotoszynski to pres￾ent this article incident to a faculty colloquium; the authors gratefully acknowledge the helpful and constructive comments and suggestions offered by William and Mary’s faculty. We also appreciate the helpful comments and suggestions provided by Charles “ Buck” Logan and Professors Michael Heise, Gary Spitko, Neal Devins, Alan Meese, Michelle Adams, Dan Cole, Betsy Wil￾born Malloy, Lilli Levi, and Lyrissa Lidsky on earlier drafts of this arti￾cle. As always, any errors or omissions are ours alone

02 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 regulations. The authors also examine the need or diversity in programming, both arguing that structural diversity among broadcast media out lets presents the best means of securing ideo- logically diverse programming and responding to potential objections to structural regulations aimed at securing such diversity. Finally, the authors elaborate on how such structural media regulations do not raise serious equal protection problems and conc lude with reminder that a healthy democracy depends upon a myriad of voIces 工. INTRODUCTIO Since the inception of federal mass media regula tion, the Federal Communications Commission (the com mission)has regulated the airwaves using its public interest, convenience, and necessity"standard.A central component of the Commission's public interest program historically has been to further diversity both broadcast programming and program outlets. Over the years, the Commission has invoked this concept to justify myriad restrictions on the distribution of licenses to operate radio and television stations,as well as a broad array of complimentary regulatory po at shape eration of stations after the Commission has licensed them. Diversity, thus, is at the very core of contemporary broadcast media regulation. Indeed, it is second in importance only to the public interest standard from which it is Careful consideration of the Commission's diver sity project reveals that a variety of cross-cutting and conflicting objectives have obscured the most im- ortant role that government regulations designed to enhance media diversity can play: thwarting the crea 1. 47 U.s.C. 55 303, 309(a)(1994); see also Ronald J. Krotoszynski Jr, The Inevitable Wasteland: Why the Public Trustee Model of Broadcast G. Kra.on Regulation Must Fail, 95 MICH. L. REV. 2101, 2102 (1997): Erwin Telev now& Jack K. Goodman, The Public Interest Standard: The Search for the Holy Grail, 50 FED. COMM. L.J. 605, 607(1998) ee Krasnow Goodman, supra note l, at 627-28 3. See THOMAS G. KRATTENMAKER LOCAS A PROGRAMMING 59-101(1994): Jim Chen, The Last Picture Show (On the Twilight Mass Communications Regulation), 80 MINN. L. REv. 1415, 1431-50 4. See infra text and accompanying notes 14-2

KROTO.DOC 12/07/00 9:35 AM 102 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 regulations. The authors also examine the need for diversity in programming, both arguing that structural diversity among broadcast media out￾lets presents the best means of securing ideo￾logically diverse programming and responding to potential objections to structural regulations aimed at securing such diversity. Finally, the authors elaborate on how such structural media regulations do not raise serious equal protection problems and conclude with a reminder that a healthy democracy depends upon a myriad of voices. I. INTRODUCTION Since the inception of federal mass media regula￾tion, the Federal Communications Commission (the Com￾mission) has regulated the airwaves using its “ public interest, convenience, and necessity” standard.1 A central component of the Commission’s public interest program historically has been to further diversity in both broadcast programming and program outlets.2 Over the years, the Commission has invoked this concept to justify myriad restrictions on the distribution of licenses to operate radio and television stations,3 as well as a broad array of complimentary regulatory po￾lices that shape the day-to-day operation of stations after the Commission has licensed them.4 Diversity, thus, is at the very core of contemporary broadcast media regulation. Indeed, it is second in importance only to the public interest standard from which it is derived. Careful consideration of the Commission’s diver￾sity project reveals that a variety of cross-cutting and conflicting objectives have obscured the most im￾portant role that government regulations designed to enhance media diversity can play: thwarting the crea- 1. 47 U.S.C. §§ 303, 309(a) (1994); see also Ronald J. Krotoszynski, Jr., The Inevitable Wasteland: Why the Public Trustee Model of Broadcast Television Regulation Must Fail, 95 MICH. L. REV. 2101, 2102 (1997); Erwin G. Krasnow & Jack K. Goodman, The Public Interest Standard: The Search for the Holy Grail, 50 FED. COMM. L.J. 605, 607 (1998). 2. See Krasnow & Goodman, supra note 1, at 627-28. 3. See THOMAS G. KRATTENMAKER & LUCAS A. POWE, JR., REGULATING BROADCAST PROGRAMMING 59-101 (1994); Jim Chen, The Last Picture Show (On the Twilight of Federal Mass Communications Regulation), 80 MINN. L. REV. 1415, 1431-50 (1996). 4. See infra text and accompanying notes 14-21

No.3] ENHANCING THE SPECTRUM tion of undue concentrations of media power, thereby advancing the project of democratic deliberation isentangling the complex web of diversity-inspire regulations is no easy task, for the Commission's ef- forts to promote diversity, not unlike a coral reef have grown both incrementally and haphazardly. The Commission has invoked the diversity rationale to support a variety of disparate programs, including but hardly limited to tructural egulations that divide and separate media ownership. Content- and viewpoint-neutral regulations that prevent the undue concentrat of media ownership should be maintained and, perhaps, even strengthened. Conversely, diver- sity regulations aimed at controlling the content of programming, whether directly or indirectly, should be abandoned The diversity question is especially deserving of close attention at the moment because Congress and the Commission are actively considering a variety of proposals that would weaken the structural regula- tions promoting diversity of ownership among media outlets he Telecommunications Act of 1996 also sig nificantly weakened both national and local multiple ownership rules, leading to a feeding frenzy of con See Newspaper/Radio Cross Ownership Waiver Policy, 11 F.C.C 13,003, 13,003-08 (paras. 1-8)(1996)(notice of inquiry): Multiple Owner ship of standard, EM, and Television Broadcast Stations, 50 F CC 2d 1046 1975), reconsidered, 53 F.C.C. 2d 589 (1975), aff'd sub tional citizens Comm. for Broad, 436 U.s. 775, 779(1978);47 C.F. R S 73.3555(1998). The newspaper-radio cross-ownership rule, id. s(d)(1)-(2), which generally prohibits a daily newspaper and a station in the same munity from being owned, operated, or controlled, either directly or indi- rectly, by the same party, is under review. See Newspaper/Radi wnership Waiver Policy C.C.R. at 13, 003-08 (paras. 1-8). In add tion, as part of its bienne view, the Commission issued a notice of in- quiry ( NOI) reviewing its broadcast ownership rules. See Review of the Com mission's Broadcast Ownership Rules and other Rules Adopted Pursuant te ection 202 of The Telecommunications Act of 1996, 13 F.C. C.R. 11, 276 1, 276-79 (paras. 1-8)(1998) (notice of inquiry). Among the rules unde eview are a national television ownership rule that limits the audience reach of a television network to an aggregate reach of 358, see 47CFR s 733555(e)(1), a newspaper broadcast cross-ownership rule that prohibit a daily newspaper and a broadcast station in the same community from being wned, operated, or controlled, either directly or indirectly, by the same party, see id. 5 (d)(3), a local radio ownership rule that limits the nt ber of radio stations in a particular market that can be owned, operated controlled by a party, see id. s (a)(1), and the cable/television cross- wnership rule that prohibits a television station and a cable system in the same local community from being owned, operated, or controlled, eithe directly or indirectly, by the same party. See id. 5 76.501(1) 6. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56

KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 103 tion of undue concentrations of media power, thereby advancing the project of democratic deliberation. Disentangling the complex web of diversity-inspired regulations is no easy task, for the Commission’s ef￾forts to promote diversity, not unlike a coral reef, have grown both incrementally and haphazardly. The Commission has invoked the diversity rationale to support a variety of disparate programs, including, but hardly limited to, structural regulations that divide and separate media ownership. Content- and viewpoint-neutral regulations that prevent the undue concentration of media ownership should be maintained and, perhaps, even strengthened. Conversely, diver￾sity regulations aimed at controlling the content of programming, whether directly or indirectly, should be abandoned. The diversity question is especially deserving of close attention at the moment because Congress and the Commission are actively considering a variety of proposals that would weaken the structural regula￾tions promoting diversity of ownership among media outlets.5 The Telecommunications Act of 1996 also sig￾nificantly weakened both national and local multiple ownership rules,6 leading to a feeding frenzy of con- 5. See Newspaper/Radio Cross Ownership Waiver Policy, 11 F.C.C.R. 13,003, 13,003-08 (paras. 1-8) (1996) (notice of inquiry); Multiple Owner￾ship of Standard, FM, and Television Broadcast Stations, 50 F.C.C.2d 1046 (1975), reconsidered, 53 F.C.C.2d 589 (1975), aff’d sub nom., FCC v. Na￾tional Citizens Comm. for Broad., 436 U.S. 775, 779 (1978); 47 C.F.R § 73.3555 (1998). The newspaper-radio cross-ownership rule, id. § (d)(1)–(2), which generally prohibits a daily newspaper and a station in the same com￾munity from being owned, operated, or controlled, either directly or indi￾rectly, by the same party, is under review. See Newspaper/Radio Cross￾Ownership Waiver Policy, 11 F.C.C.R. at 13,003-08 (paras. 1-8). In addi￾tion, as part of its biennial review, the Commission issued a notice of in￾quiry (NOI) reviewing its broadcast ownership rules. See Review of the Com￾mission’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of The Telecommunications Act of 1996, 13 F.C.C.R. 11,276, 11,276-79 (paras. 1-8) (1998) (notice of inquiry). Among the rules under review are a national television ownership rule that limits the audience reach of a television network to an aggregate reach of 35%, see 47 C.F.R. § 73.3555(e)(1), a newspaper broadcast cross-ownership rule that prohibits a daily newspaper and a broadcast station in the same community from being owned, operated, or controlled, either directly or indirectly, by the same party, see id. § (d)(3), a local radio ownership rule that limits the num￾ber of radio stations in a particular market that can be owned, operated, or controlled by a party, see id. § (a)(1), and the cable/television cross￾ownership rule that prohibits a television station and a cable system in the same local community from being owned, operated, or controlled, either directly or indirectly, by the same party. See id. § 76.501(1). 6. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56

104 UNIVERSITY OF ILLINOIS LAW REVIEW [Vo solidation within the commercial radio and television broadcasting industry. Although this round of con solidation has not yet been completed, the national networks and large station groups immediately showed interest in acquiring even more radio and television stations In August 1999, the Commission surrendered to in- dustry pressure and adopted regulations that signifi- cantly weaken the multiple ownership rules. Not con (codified in scattered sections of 47 U.s.C. 7. The Telecommunications Act of 1996 instructed the Commission to eliminate the national cap on the number of radio stations that can be jointly owned, see id. s 202(a), 110 Stat. at 110; increase the number of stations in an individual market that can be owned by one entity, see id s 202(b), 110 Stat. at 110; eliminate the national cap on the number of elevision stations that can be jointly audience reach to 358, see id. s 202(c)(1),110 Stat. at 11l, conduct hear ings concerning the limits on the number of television stations that ar tity may own, operate, or control in the same television market, see s 202(c)(2), 110 Stat. at 1ll; extend its waiver policy with respect to the one-to-a-market ownership rule for the top twenty-five marke fifty markets. s 202(d),110 Stat. at 11l; and eliminate the prohi bition on broadcast network-cable cross-ownership. See id. 5 202(f)(1),110 stat. at 111. The results of these provisions have been both startling and ift, producing an orgy of consolidation. See Al Brumley, Radio signals Are man Conglomerate, CHI. TRIB., Feb. 22, 1998, at Cl: Tom Steighorst, Diversity ost Among Station Sales, SuN-SENTINEL (Fort Lauderdale), Nov. 30, 199 8. See Paige Albiniak Bill McConnell, Strange Bedfellows, BROADCASTING& CABLE, Aug. 16, 1999, at 6, 22 (reporting on the increasing pressure that lall Street and the broadcasting industry, aided by their friends in Con gress, are applying to ECC Chairman Kennard and his colleagues to liberal- ize the multiple ownership rules, thereby permitting greater concentrations of local and national broadcast media holdings) The television duopoly rule, which precludes television broadcast ations with overlapping Grade B contours from being owned, operated, o olled, either directly or indirectly, by the same party, see 47 C.E.R s 733555(b) (1970), has been under review recently. See Review of the Com 7F.C.C.R.4111, 4116-17(paras. 22-28)(1992)(notice of proposed rulemaking): Review of the Commmission's Requlations Governing Television Broadcasting, Television sat ellite Stations Review of Policy and Rules, 11 F.c.C. R. 21,655, 21, 661-6 paras. 10-13)(1996)(second further notice of proposed rulemaking).On August 5, 1999, the Commission repealed in part the duopoly rule, allowing a ingle entity to own or control more than one television station in a single narket if certain conditions are met. See generally Review of the Commis sion's Regulations Governing Television Broadcasting, Television Satellite stations Review of Policy and Rules, 14 F.C. C.R. 12,903(1999)(report a e also David Fiske, FCC Revises Local Television Ownership Rules, ECCREP. No. 99-8, Aug. 5, 1999, available in, 1999 FCC LEXIs 3736 (providing an executive summary of the changes in the multiple ownership rules)i Al iniak McConnell, supra note 8, at 6 (describing the policy changes in the local ownership rules and the politics surrounding these changes). The one to-a-market rule, which generally prohibits a television station and a radic station in the same market from being owned, operated, or controlled, either

KROTO.DOC 12/07/00 9:35 AM 104 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 solidation within the commercial radio and television broadcasting industry.7 Although this round of con￾solidation has not yet been completed, the national networks and large station groups immediately showed interest in acquiring even more radio and television stations.8 In August 1999, the Commission surrendered to in￾dustry pressure and adopted regulations that signifi￾cantly weaken the multiple ownership rules.9 Not con- (codified in scattered sections of 47 U.S.C.). 7. The Telecommunications Act of 1996 instructed the Commission to eliminate the national cap on the number of radio stations that can be jointly owned, see id. § 202(a), 110 Stat. at 110; increase the number of stations in an individual market that can be owned by one entity, see id. § 202(b), 110 Stat. at 110; eliminate the national cap on the number of television stations that can be jointly owned and increase the national audience reach to 35%, see id. § 202(c)(1), 110 Stat. at 111; conduct hear￾ings concerning the limits on the number of television stations that an en￾tity may own, operate, or control in the same television market, see id. § 202(c)(2), 110 Stat. at 111; extend its waiver policy with respect to the one-to-a-market ownership rule for the top twenty-five markets to the top fifty markets, see id. § 202(d), 110 Stat. at 111; and eliminate the prohi￾bition on broadcast network-cable cross-ownership. See id. § 202(f)(1), 110 Stat. at 111. The results of these provisions have been both startling and swift, producing an orgy of consolidation. See Al Brumley, Radio Signals Are Hard to Read, DALLAS MORNING NEWS, Oct. 19, 1997, at C1; Tim Jones, Radio’s Hu￾man Conglomerate, CHI. TRIB., Feb. 22, 1998, at C1; Tom Steighorst, Diversity Lost Among Station Sales, SUN-SENTINEL (Fort Lauderdale), Nov. 30, 1997, at F1. 8. See Paige Albiniak & Bill McConnell, Strange Bedfellows, BROADCASTING & CABLE, Aug. 16, 1999, at 6, 22 (reporting on the increasing pressure that Wall Street and the broadcasting industry, aided by their friends in Con￾gress, are applying to FCC Chairman Kennard and his colleagues to liberal￾ize the multiple ownership rules, thereby permitting greater concentrations of local and national broadcast media holdings). 9. The television duopoly rule, which precludes television broadcast stations with overlapping Grade B contours from being owned, operated, or controlled, either directly or indirectly, by the same party, see 47 C.F.R. § 73.3555(b) (1970), has been under review recently. See Review of the Com￾mission’s Regulations Governing Television Broadcasting, 7 F.C.C.R. 4111, 4116-17 (paras. 22-28) (1992) (notice of proposed rulemaking); Review of the Commission’s Regulations Governing Television Broadcasting, Television Sat￾ellite Stations Review of Policy and Rules, 11 F.C.C.R. 21,655, 21,661-63 (paras. 10-13) (1996) (second further notice of proposed rulemaking). On August 5, 1999, the Commission repealed in part the duopoly rule, allowing a single entity to own or control more than one television station in a single market if certain conditions are met. See generally Review of the Commis￾sion’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903 (1999) (report and order); see also David Fiske, FCC Revises Local Television Ownership Rules, FCCREP. NO. 99-8, Aug. 5, 1999, available in, 1999 FCC LEXIS 3736 (providing an executive summary of the changes in the multiple ownership rules); Al￾biniak & McConnell, supra note 8, at 6 (describing the policy changes in the local ownership rules and the politics surrounding these changes). The one￾to-a-market rule, which generally prohibits a television station and a radio station in the same market from being owned, operated, or controlled, either

No.3] ENHANCING THE SPECTRUM tent with this success, the broadcasting industry and its congressional allies are seeking even further de regulation of the ownership of television stations Before facilitating another buying spree, the Commis sion should consider very carefully the wisdom of permitting the further consolidation of radio and television holdings. a better course of action would be to weigh the potential negative effects of the in- creased concentration of media power in fewer and fewer hands against the broadcasting industry directly or indirectly, by the same party, see 47 C.E.R. 5 733555(c) (1970), was repealed by the same report and order that rescinded the duopoly rule. See Review of the Commmission's Requlations Governing Television Broad- asting, 14 F.C. C.R. at 12,947-54 (paras. 100-114).The attribution rules, cluded wi ownership rules, are also relevant because they define what the Commission considers gnizable interest for oses of the ownership rules. See 47 C.F.R. s 73.3555, at n1-10(1998). After reviewing the attribution rules, Review f the Commissions Regulations Governing Attribution of Broadcast Inter- sts, Review of the Commission's lations and Policies Affecting Invest ent in the Broadcast Industry, Reexamination of the Commission'sCross- Interest Policy, 10 F C.C.R. 3606(1995) (notice of proposed reulmaking view of the Commission's Requlations Governing Attribution of Broadcast nd Cable/MDS Interests, Review of the Commission's Regulations and Policies Affecting Investment in the Broadcast Industry, Reexamination of the Commi sion's Cross-Interest Policy, 11 F.C. C.R. 19,895(1996)(further notice of proposed rulemaking), the Commission modified these rules to include local marketing agreements, a variety of equity holdings, and contractual arrange- f tation in the same market. See Review of the Commission's Regu rning Attribution of Broadcast and Cable/MDS Interests, 14 F C.C.R. 12,559 1999) ort and order) see also Ken silverstein, His bic t Takeover How Murdoch Bought washington, NATION, June 8, 1998, at 18. 32 (describing Murdoch's interest in the rule change): Broadcast Owership Inquiry May Show FCC's Philosophical Differences, CaMM. DAILY, Mar. 13, 1998, available in 1998 WL 10696068: Ownership Restrictions Debated, TELEVISION DIGEST, Feb. 17, 1997, t 5, 5. To its credit, the Commission actually strengthened the attribution rules. See Review of the Commission's Regulations Governing Attribution of Broadcast and Cable/MDS Interests C.R.at12,563,12,587-88,12,59 3,12,597-99( paras.6,60,69, its national ownership rules to account the changes to its attri bution rules. See Review of the on's Regulations Governing Telev sion Broadcasting, Television Satellite Station Review of Policy and Rules 14 F.C.C.R. at 12, 903. For an overview of the Commission's recent efforts to boff, Ready, Set Duopoly, BROADCASTING & CABLE, Aug. 9, 1999, at 4, 4-5 10. See Paige Albiniak, GOP Pushes Ownersh Sept. 20, 1999, at 19, 19 (describing efforts by the major networks, large station groups, and their friends in Congress to browbeat the Commission into further rollbacks of the multiple ownership rules); Bill Mccone NAB Offers $ioM for Minority Plan, BROADCASTING CABLE, Feb. 22, 1999, at 14 4-15 (describing National Association of Broa rs′(NAB) proposa1to fund minority ownership of radio and television stations and the possibil ity of relaxed limitations he number of television and radio stati that a single owner could own or control

KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 105 tent with this success, the broadcasting industry and its congressional allies are seeking even further de￾regulation of the ownership of television stations.10 Before facilitating another buying spree, the Commis￾sion should consider very carefully the wisdom of permitting the further consolidation of radio and television holdings. A better course of action would be to weigh the potential negative effects of the in￾creased concentration of media power in fewer and fewer hands against the broadcasting industry’s directly or indirectly, by the same party, see 47 C.F.R. § 73.3555(c) (1970), was repealed by the same report and order that rescinded the duopoly rule. See Review of the Commission’s Regulations Governing Television Broad￾casting, 14 F.C.C.R. at 12,947-54 (paras. 100-114). The attribution rules, although not included within the broad category of broadcast ownership rules, are also relevant because they define what the Commission considers a cognizable interest for purposes of the ownership rules. See 47 C.F.R. § 73.3555, at n.1-10 (1998). After reviewing the attribution rules, Review of the Commission’s Regulations Governing Attribution of Broadcast Inter￾ests, Review of the Commission’s Regulations and Policies Affecting Invest￾ment in the Broadcast Industry, Reexamination of the Commission’s Cross￾Interest Policy, 10 F.C.C.R. 3606 (1995) (notice of proposed reulmaking); Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, Review of the Commission’s Regulations and Policies Affecting Investment in the Broadcast Industry, Reexamination of the Commis￾sion’s Cross-Interest Policy, 11 F.C.C.R. 19,895 (1996) (further notice of proposed rulemaking), the Commission modified these rules to include local marketing agreements, a variety of equity holdings, and contractual arrange￾ments in which one station controls the programming decisions of another station in the same market. See Review of the Commission’s Regulations Gov￾erning Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. 12,559 (1999) (report and order); see also Ken Silverstein, His Biggest Takeover: How Murdoch Bought Washington, NATION, June 8, 1998, at 18, 31-32 (describing Murdoch’s interest in the rule change); Broadcast Ownership Inquiry May Show FCC’s Philosophical Differences, COMM. DAILY, Mar. 13, 1998, available in 1998 WL 10696068; Ownership Restrictions Debated, TELEVISION DIGEST, Feb. 17, 1997, at 5, 5. To its credit, the Commission actually strengthened the attribution rules. See Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, 14 F.C.C.R. at 12,563, 12,587-88, 12,592- 93, 12,597-99 (paras. 6, 60, 69, 83-88). Finally, the Commission modified its national ownership rules to take into account the changes to its attri￾bution rules. See Review of the Commission’s Regulations Governing Televi￾sion Broadcasting, Television Satellite Station Review of Policy and Rules, 14 F.C.C.R. at 12,903. For an overview of the Commission’s recent efforts to revise the multiple ownership rules, see Elizabeth A. Rathbun & Dan Trigo￾boff, Ready, Set . . . Duopoly, BROADCASTING & CABLE, Aug. 9, 1999, at 4, 4-5. 10. See Paige Albiniak, GOP Pushes Ownership Dereg, BROADCASTING & CABLE, Sept. 20, 1999, at 19, 19 (describing efforts by the major networks, large station groups, and their friends in Congress to browbeat the Commission into further rollbacks of the multiple ownership rules); Bill McConnell, NAB Offers $10M for Minority Plan, BROADCASTING & CABLE, Feb. 22, 1999, at 14, 14-15 (describing National Association of Broadcasters’ (NAB) proposal to fund minority ownership of radio and television stations and the possibil￾ity of relaxed limitations on the number of television and radio stations that a single owner could own or control)

106 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 claims that bigger is better. A systematic reconsideration of the diversity pro- ject must also include the Commission's efforts over the last thirty years to increase the number of ra cial minorities and women in the broadcasting indus try. Although the Commission's efforts to ensure that the public's airwaves are not controlled by those who engage in racial- or gender-based discrimination inued support, the Commission's untested assumptions about the diversity-enhancing effects of minority or female station ownership should be ith skepticism. Given the importance of the diver sity project, the Commission should not permit short- term political efforts d select constit cies with valuable ownership and employment opportu- nities to overshadow or endanger the long-term pro] ect of ensuring a healthy and open marketplace of ideas Part i of this article considers some of the scat tershot ways in which the Commission has attempted to promote diversity through regulation. Part II exam ines in greater detail the Commission's efforts to use race and gender as a means of furthering its di versity project, an effort that seems to be mis- ers the potential benefits as ociated with a regulatory program that maintains structural diversity among broadcast media outlets, an effort that constitutes an important, perhaps cru cial, regulatory objective. Part Iv distinguishes be tween the Commission's attempts to foster program d versity (efforts that are both ineffective and unnecessary) and its attempts to maintain structural diversity and localism (efforts that are both neces sary and laudable). Finally, Part v suggests a pro- gram of reform that would disentangle the Commis sion's regulatory efforts at enhancing and promoting diversity from its efforts to ensure nondiscrimina See generally Louis B. Schwartz, Institutional Size and Indivz Liberty: Authoritarian Aspects of Bigness, 55 NW. U. L. REv. 4, 9-14, 22- (1960)(discussing the potential ill-effects associated with corporate generally and the dangers of undue concentrations of media power in ticula 12. See infra notes 125-140 and accompanying text; see also Review of the Commission's Broadcast and Cable Equal Opportunity Rules and Policie nd Termination of the EEo Streamlining Proceding, 13 E.C. C.R. 23, 004 (1998)(notice of proposed rulmaking) [hereinafter Broadcast Cable EEO

KROTO.DOC 12/07/00 9:35 AM 106 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 claims that “ bigger is better.” 11 A systematic reconsideration of the diversity pro￾ject must also include the Commission’s efforts over the last thirty years to increase the number of ra￾cial minorities and women in the broadcasting indus￾try. Although the Commission’s efforts to ensure that the public’s airwaves are not controlled by those who engage in racial- or gender-based discrimination merit continued support, the Commission’s untested assumptions about the diversity-enhancing effects of minority or female station ownership should be met with skepticism.12 Given the importance of the diver￾sity project, the Commission should not permit short￾term political efforts that reward select constituen￾cies with valuable ownership and employment opportu￾nities to overshadow or endanger the long-term proj￾ect of ensuring a healthy and open marketplace of ideas. Part I of this article considers some of the scat￾tershot ways in which the Commission has attempted to promote diversity through regulation. Part II exam￾ines in greater detail the Commission’s efforts to use race and gender as a means of furthering its di￾versity project, an effort that seems to be mis￾guided. Part III considers the potential benefits as￾sociated with a regulatory program that maintains structural diversity among broadcast media outlets, an effort that constitutes an important, perhaps cru￾cial, regulatory objective. Part IV distinguishes be￾tween the Commission’s attempts to foster program di￾versity (efforts that are both ineffective and unnecessary) and its attempts to maintain structural diversity and localism (efforts that are both neces￾sary and laudable). Finally, Part V suggests a pro￾gram of reform that would disentangle the Commis￾sion’s regulatory efforts at enhancing and promoting diversity from its efforts to ensure nondiscrimina- 11. See generally Louis B. Schwartz, Institutional Size and Individual Liberty: Authoritarian Aspects of Bigness, 55 NW. U. L. REV. 4, 9-14, 22-24 (1960) (discussing the potential ill-effects associated with corporate size generally and the dangers of undue concentrations of media power in par￾ticular). 12. See infra notes 125-140 and accompanying text; see also Review of the Commission’s Broadcast and Cable Equal Opportunity Rules and Policies and Termination of the EEO Streamlining Proceding, 13 F.C.C.R. 23,004 (1998) (notice of proposed rulmaking) [hereinafter Broadcast & Cable EEO Review]

No.3] ENHANCING THE SPECTRUM 107 tion by the public trustees holding licenses for broadcast stations. In the end, the Commis failure to articulate a coherent vision for its versity less electio tance and validity of the underlying policies them- selves and more a reflection of the Commission's inabili lpe interest group mulating its regulatory policies. 3 II. THE ROLE OF DIVERSITY IN MASS MEDIA REGULATION The concept of diversity is a central component of contemporary broadcast regulation. Under the author- ity vested in it by the Communications Act of 1934, the Commission regulates broadcasters using the pub- lic interest, convenience, and necessit standard For many years, the Commission has taken the view that public interest encompasses not merely a general obligation on the part of broadcasters to provide pro-social programming but also the general public's right to receive a diversity of views and informa tion over the airwaves. "6 Because physical con- straints limit the number of broadcast licenses that the Commission may issue, government regulation of the airwaves ostensibly is necessary to foster such diversity. These physical constraints are said to give rise to a m scarcity" of available electromag- netic frequencies. Accordingly, government regula 13. See generally JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC OICE TO IMPROVE PUBLIC LAK 106-30(1997): ERWIN G. KRASNOW LANRENCE D. LINGLEY THE POLITICS OF BROADCAST REGULATION 31-41(1973) 4. Pub. L. No. 73-416, 48 Stat. 1064(1934)(codified as amended .s.C.ss151-609(1994)); see also TV9,Inc.v.Fcc,495F.2d929,942 D.C. Cir. 1973)(noting that the Communications Act of 1934"is the Com- ns 5.47U.S.C.s5303,309(a) 56 National Citizens Comm. for Broad, 436 U.s. 775, 795 (1978)).The "public interest" is, like diversity, an amorphous upra note 3, at 34 ( Because the Communications Act provides no guidance he FCC, along with its supporters and critics, must redefine every few ars just what ' public interest regulation might mean in the context of the industry and the technology that exists at that specific time. ").As rofessors Krattenmaker and Powe put it: " neither the words nor history of the standard provides a useful guide to its application. Id. 497U at 566-67 (citing Red Lion Broad. Co.v ECC, 395 U.s. 367, 390(1969)). The continuing validity of " scarcity" the ory has been called into serious question. See, e. g, Nancy R. Selbst,"Un regulation" and Broadcast Financing: New Ways. for the Federal Communit tions Commission to serve the Public Interest, 58 U. CHI. L. REV. 1423, 1426

KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 107 tion by the public trustees holding licenses for broadcast stations. In the end, the Commission’s failure to articulate a coherent vision for its di￾versity efforts is less a reflection of the impor￾tance and validity of the underlying policies them￾selves and more a reflection of the Commission’s inability to escape interest group politics when for￾mulating its regulatory policies.13 II.THE ROLE OF DIVERSITY IN MASS MEDIA REGULATION The concept of diversity is a central component of contemporary broadcast regulation. Under the author￾ity vested in it by the Communications Act of 1934,14 the Commission regulates broadcasters using the “ pub￾lic interest, convenience, and necessity” standard.15 For many years, the Commission has taken the view that public interest encompasses not merely a general obligation on the part of broadcasters to provide pro-social programming but also the general public’s right to receive “ a diversity of views and informa￾tion over the airwaves.” 16 Because physical con￾straints limit the number of broadcast licenses that the Commission may issue, government regulation of the airwaves ostensibly is necessary to foster such diversity. These physical constraints are said to give rise to a “ scarcity” of available electromag￾netic frequencies.17 Accordingly, government regula- 13. See generally JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 106-30 (1997); ERWIN G. KRASNOW & LAWRENCE D. LINGLEY, THE POLITICS OF BROADCAST REGULATION 31-41 (1973). 14. Pub. L. No. 73-416, 48 Stat. 1064 (1934) (codified as amended at 47 U.S.C. §§ 151-609 (1994)); see also TV9, Inc. v. FCC, 495 F.2d 929, 942 (D.C. Cir. 1973) (noting that the Communications Act of 1934 “ is the Com￾mission’s basic charter” ). 15. 47 U.S.C. §§ 303, 309(a). 16. Metro Broad., Inc. v. FCC, 497 U.S. 547, 567 (1990) (quoting FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 795 (1978)). The “ public interest” is, like diversity, an amorphous concept. See KRATTENMAKER & POWE, supra note 3, at 34 (“ Because the Communications Act provides no guidance, the FCC, along with its supporters and critics, must redefine every few years just what ‘public interest’ regulation might mean in the context of the industry and the technology that exists at that specific time.” ). As Professors Krattenmaker and Powe put it: “ neither the words nor history of the standard provides a useful guide to its application.” Id. 17. See Metro Broad., 497 U.S. at 566-67 (citing Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969)). The continuing validity of “ scarcity” the￾ory has been called into serious question. See, e.g., Nancy R. Selbst, “ Un￾regulation” and Broadcast Financing: New Ways for the Federal Communica￾tions Commission to Serve the Public Interest, 58 U. CHI. L. REV. 1423, 1426

108 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 tions are necessary to ensure that those granted the privilege of broadcasting do not abuse that privilege by failing to operate their stations in the public Interest consistent with furthering the public interest, the Commission's regulation of broadcasters has his- torically been guided by two goals: competition and diversity. Despite the existence of these dual goals, the diversity project has served as the pri mary justification for the majority of the Commis sion's broadcast regulations, particularly its race based affirmative action regulations. More specifi- cally, the Commission's diversity regulations and policies are designed to advance three types of di versity: viewpoint, outlet, and source A. Definitional difficulties For a concept of such sweeping importance, the Commission's core definition of diversity has re mained conspicuously elusive. As used by the Commis sion over time, the concept of diversity can and does 1991)( Many courts and the Fcc [have] rejected the scarcity rationale ring the FCC's primary justification for regulation. " concept. See Charles W. Logan, Jr, Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, 85. CAL. L. REV. 1687, 1702(1997)(" Has the Supreme Court gotten the message? It may be inking in, however slowly. ") Both the desirability and the continuing validity of the scarcity rationale are beyond the scope of this article L8. See 1998 Biennial Regulat Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 f the Telecommunications Act of 1996, 13 F C.C.R. 11, 276, 11,277(para. 4) (1998)(notice of inquiry) [hereinafter 1998 Biennial Review] 9. See Metro Broad, 497 U.s. at 566("[T]he Fcc has selected the mi- nority ownership policies primarily to promote programming diver The diversity goal is separate from the goal of promoting competition. See id. (" Indeed, the Supreme Court has recently stated that al policy has long favored preserving a multiplicity of broad- tlets regardless of whether the conduct that threatens it is moti anticompetitive animus or rises to the level of an antitrust vio 1998 Biennial note 18 11,278(para.6)V point diversity occurs when the material presented by the media reflects a wide range of diverse refers to a variety of delivery services (e broadcast stations newspapers, cable and DBs) that select and present programming di rectly to the public Source diversity refers to promoting variety of program or information producers an

KROTO.DOC 12/07/00 9:35 AM 108 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2000 tions are necessary to ensure that those granted the privilege of broadcasting do not abuse that privilege by failing to operate their stations in the public interest. Consistent with furthering the public interest, the Commission’s regulation of broadcasters has his￾torically been guided by two goals: competition and diversity.18 Despite the existence of these dual goals, the diversity project has served as the pri￾mary justification for the majority of the Commis￾sion’s broadcast regulations, particularly its race￾based affirmative action regulations.19 More specifi￾cally, the Commission’s diversity regulations and policies are designed to advance three types of di￾versity: viewpoint, outlet, and source.20 A. Definitional Difficulties For a concept of such sweeping importance, the Commission’s core definition of diversity has re￾mained conspicuously elusive. As used by the Commis￾sion over time, the concept of diversity can and does (1991) (“ Many courts and the FCC [have] rejected the scarcity rationale, thereby removing the FCC’s primary justification for regulation.” ). To date, however, the Supreme Court has proven unwilling to scrap the scarcity concept. See Charles W. Logan, Jr., Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, 85 CAL. L. REV. 1687, 1702 (1997) (“ Has the Supreme Court gotten the message? It may be sinking in, however slowly.” ). Both the desirability and the continuing validity of the scarcity rationale are beyond the scope of this article. 18. See 1998 Biennial Regulatory Review— Review of the Commission’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, 13 F.C.C.R. 11,276, 11,277 (para. 4) (1998) (notice of inquiry) [hereinafter 1998 Biennial Review]. 19. See Metro Broad., 497 U.S. at 566 (“ [T]he FCC has selected the mi￾nority ownership policies primarily to promote programming diver￾sity . . . .” ). The diversity goal is separate from the goal of promoting competition. See id. (“ Indeed, the Supreme Court has recently stated that ‘federal policy . . . has long favored preserving a multiplicity of broad￾cast outlets regardless of whether the conduct that threatens it is moti￾vated by anticompetitive animus or rises to the level of an antitrust vio￾lation.’” ); see also 1998 Biennial Review, supra note 18, at 11,277 (para. 4). 20. See 1998 Biennial Review, supra note 18, at 11,278 (para. 6). View￾point diversity occurs when the material presented by the media reflects a wide range of diverse and antagonistic opinions and interpretations . . . . Outlet diversity refers to a variety of delivery services (e.g., broadcast stations, newspapers, cable and DBS) that select and present programming di￾rectly to the public . . . . Source diversity refers to promoting a variety of program or information producers and owners. Id

No.3] ENHANCING THE SPECTRUM mean a great many things: it can refer to the race or gender of a broadcast station's owners; it can refer the ideology of the owners; it can refer to the net number of separately owned media outlets, whether locally or nationally 23 it can refer to the types of programs that a particular television or radio sta tion owner broadcasts or it can refer to the sourc f broadcast programming. As will be demonstrated in greater detail below, the diversity concept means all of these things (or so the Commission would have us believe). Given its highly protean nature, the con cept of diversity in mass media regulation seems in anger of becoming so hopelessly amorphous as to verge on being meaningless. Notwithstanding this lack of clarity, the Commission invokes the concept with a egularity suggesting that, although the Commission may have difficulty defining diversity, the Commis sioners, like Justice Potter Stewart with respect to obscenity, know it when [they] see it The Commission's inability to define coherently the concept of diversity has resulted in a confused mix of regulatory policies- a regulatory gumbo that road, 497 U.s 554: Lamprecht v. FCC, 958 F 2d 382 390(D.C.cir.1992) 22. See Red Lion Broad. Co. v. FCC, 395 U.s. 367(1969) KRATTENMAKER PONE, supra note 3, at 237-75 23. See Review of the Commissions Regulations Governing Television Broadcasting, Television Satellite stations Review of Policy and Rules, 10 F.C.C.R.3524,3550-53,3573-74 paras.62-65,113-15)(1995)( further no- tice of pro See Capital 309, 316(7thc x 1994): Schurz Communications, Inc. v. FCC, 982 F 2d 1043, 1054(7th Cir 1992) 25. Jacobellis v. ohio, 378 U.s. 184, 197(1964)(Stewart, J, concur ring)i cf. Neel Devins, Congress, the FCC, and the Search for the Public tee, 56 LAK CoNTEMP. PROBS. 145, 147(1993)(describing the m public in- erest" standard as so *ill-defined that it verges on w the point of be- ing meaningless"). Some years ago, the Commission conducted a comprehensie study of its diversity policies. See Review of the Commission's Regulations Governing Television Broadcasting, Television Satellite stations Review of Policy and Rules, 10 F.C. C.R. at 3524. Incident to this project, the Com nission's staff cons idered the mish mash of policies that collectively con titute the Commission's diversity project. See id. at 3546-59 (paras. 54 80). Notwithstanding this promising start, the Commission has made litt dering its diversity programs in a comprehensive fash- ion. As Commissioner Michael K. Powell recently explained, "diversity is Governing Television Broadcasting, Television Satellite Stations Review o Policy and Rules, 14 F.C.C. R. 12, 903, 12,987(1999) (report and order) (separate statement of Commissioner Michael K. Powell)

KROTO.DOC 12/07/00 9:35 AM No. 3] ENHANCING THE SPECTRUM 109 mean a great many things: it can refer to the race or gender of a broadcast station’s owners;21 it can refer to the ideology of the owners;22 it can refer to the net number of separately owned media outlets, whether locally or nationally;23 it can refer to the types of programs that a particular television or radio sta￾tion owner broadcasts; or it can refer to the sources of broadcast programming.24 As will be demonstrated in greater detail below, the diversity concept means all of these things (or so the Commission would have us believe). Given its highly protean nature, the con￾cept of diversity in mass media regulation seems in danger of becoming so hopelessly amorphous as to verge on being meaningless. Notwithstanding this lack of clarity, the Commission invokes the concept with a regularity suggesting that, although the Commission may have difficulty defining diversity, the Commis￾sioners, like Justice Potter Stewart with respect to obscenity, “ know it when [they] see it.” 25 The Commission’s inability to define coherently the concept of diversity has resulted in a confused mix of regulatory policies— a regulatory gumbo that 21. See Metro Broad., 497 U.S. at 554; Lamprecht v. FCC, 958 F.2d 382, 390 (D.C. Cir. 1992). 22. See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969); see also KRATTENMAKER & POWE, supra note 3, at 237-75. 23. See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 10 F.C.C.R. 3524, 3550-53, 3573-74 (paras. 62-65, 113-15) (1995) (further no￾tice of proposed rulemaking). 24. See Capital Cities/ABC, Inc. v. FCC, 29 F.3d 309, 316 (7th Cir. 1994); Schurz Communications, Inc. v. FCC, 982 F.2d 1043, 1054 (7th Cir. 1992). 25. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concur￾ring); cf. Neel Devins, Congress, the FCC, and the Search for the Public Trustee, 56 LAW & CONTEMP. PROBS. 145, 147 (1993) (describing the “ public in￾terest” standard as so “ ill-defined” that it verges on “ the point of be￾ing meaningless” ). Some years ago, the Commission conducted a comprehensive study of its diversity policies. See Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 10 F.C.C.R. at 3524. Incident to this project, the Com￾mission’s staff considered the mish mash of policies that collectively con￾stitute the Commission’s diversity project. See id. at 3546-59 (paras. 54- 80). Notwithstanding this promising start, the Commission has made little progress on reconsidering its diversity programs in a comprehensive fash￾ion. As Commissioner Michael K. Powell recently explained, “ diversity is very hard to define, and is at some level a visceral concept.” Broadcast Television National Ownership Rules, Review of the Commission’s Regulations Governing Television Broadcasting, Television Satellite Stations Review of Policy and Rules, 14 F.C.C.R. 12,903, 12,987 (1999) (report and order) (separate statement of Commissioner Michael K. Powell)