online and other media. A very recent example is the challenge mounted by the Depart ment of Justice to the proposed acquisition by EchoStar of DirecTV The analytical approach of the Guidelines begins with a focus on consumers. Whether a proposed merger or acquisition is anticompetitive is determined in part by asking what alternatives are, or would be, available to customers in the event that prices were to in- rease or service deteriorate. These are fact questions. They must be addressed from the perspective of particular, defined customers who are users of the services of the firms that propose to merge and competing firms. This determination of relevant market(s)cannot be prejudged in today's complex and changing media industries by establishing arbitrary a prior boundaries Similarly, it makes no sense to define either markets or ownership standards a priori in terms of particular technologies, such as radio broadcasting, television broadcasting, ca- ble transmission or newspaper publishing, much less AM versus FM or VHF versus UHF unless such distinctions happen to coincide with accurate depictions of consumer demand characteristics. Neither technology nor the Code of Federal Regulations (C.F.R.) catego- ries are based on or bear any useful relationship to customer behavior in media markets as the Commission's own evidence amply demo nstrates. 2 The Commission's current(2002)ownership rules are based entirely on implicit" market definitions "reflecting technology and other such a priori distinctions. For example, the local radio ownership rules imply a"market definition"consisting solely of local radio stations and a concentration standard measured in numbers of local radio stations. If the Commission were concerned with protecting advertisers from the possible effect of radio ownership changes on ad rates it would consider what alternatives advertisers have to radio advertising. In setting a concentration standard for this purpose, probably it would Both companies deliver multichannel video entertainment and Internet access services to consum- ers via domestic broadcast satellites. See Complaint, United States, et al. v. Echo Star Communica tions, et al., Case Number 1: 02Cv02138 DDC Complaint filed October 31, 2002 http://www.usdoj.gov/atr/cases/f200400/200409.htn 12http://www.fcc.gov/ownership/studies.html(fcc-sponSorEdstudiesinthethirddecennialpro11 online and other media. A very recent example is the challenge mounted by the Depart￾ment of Justice to the proposed acquisition by EchoStar of DirecTV. 11 The analytical approach of the Guidelines begins with a focus on consumers. Whether a proposed merger or acquisition is anticompetitive is determined in part by asking what alternatives are, or would be, available to customers in the event that prices were to in￾crease or service deteriorate. These are fact questions. They must be addressed from the perspective of particular, defined customers who are users of the services of the firms that propose to merge and competing firms. This determination of relevant market(s) cannot be prejudged in today’s complex and changing media industries by establishing arbitrary a priori boundaries. Similarly, it makes no sense to define either markets or ownership standards a priori in terms of particular technologies, such as radio broadcasting, television broadcasting, ca￾ble transmission or newspaper publishing, much less AM versus FM or VHF versus UHF unless such distinctions happen to coincide with accurate depictions of consumer demand characteristics. Neither technology nor the Code of Federal Regulations (C.F.R.) catego￾ries are based on or bear any useful relationship to customer behavior in media markets, as the Commission’s own evidence amply demonstrates.12 The Commission’s current (2002) ownership rules are based entirely on implicit “market definitions” reflecting technology and other such a priori distinctions. For example, the local radio ownership rules imply a “market definition” consisting solely of local radio stations and a concentration standard measured in numbers of local radio stations. If the Commission were concerned with protecting advertisers from the possible effect of radio ownership changes on ad rates, it would consider what alternatives advertisers have to radio advertising. In setting a concentration standard for this purpose, probably it would 11 Both companies deliver multichannel video entertainment and Internet access services to consum￾ers via domestic broadcast satellites. See Complaint, United States, et al. v. EchoStar Communica￾tions, et al., Case Number 1:02CV02138 DDC Complaint filed October 31, 2002. http://www.usdoj.gov/atr/ cases/f200400/200409.htm 12 http://www.fcc.gov/ownership/studies.html (FCC-sponsored studies in the third decennial pro￾ceeding)