As I've tried to detail (the other diaries in this series are on my user page), the question of who owns the media in this country is a big deal. Unfortunately, policymakers and courts have made a mess of the regulations that are supposed to control media ownership concentration.
Now that we're so tantalizingly close to the beginning of the Obama administration, it seems like a worthwhile exercise to move beyond critique and offer solutions for how to undo the damage that's been done. At the outset, I just want to make it clear that I know that there are surely a lot of people much smarter than me who can propose other ideas that are probably bolder and better. What I'm trying to do in this diary is throw out some basic concepts and outlines that could be used as a starting point. I welcome your thoughts in the comments.
This diary will focus on policies that I think are necessary for preventing a further descent into the consolidation abyss. Tomorrow, I'll post some proposals for policies that will help grow the media that we need for the future, while assuring that every person has access to the technology that they need to make use of that media.
Given the limitations of the emerging forms of media I discussed in my diary yesterday, although it is certainly not productive to attempt to return to a regulatory regime based strictly on a model that assumes that broadcast television and radio and the newspaper are the only relevant forces in the media marketplace, this is no time to abandon attempts to provide for a reasonable measure of local diversity in a community by placing limits on the level of ownership concentration among traditional media outlets. Limits on concentration do perform important functions in protecting against the concentration of too much power in the hands of too few owners and editors and in providing for the greatest probability that matters of public significance or political importance will be brought to citizens' attention.
For this reason, Congress should pass legislation that rolls back some of the recent changes that the FCC made to the newspaper/television cross-ownership rules. Specifically, while it may be acceptable to allow some combinations in the top twenty markets that have a large number of media voices (although any new combination should be closely scrutinized), Congress should eliminate the loopholes that the Commission left open that might allow cross-ownership in midsize or small markets.
While it is true that some newspapers and broadcast outlets are struggling for ad revenues because of competition from emerging media sources like the Internet, as discussed in greater detail yesterday, they are still profitable, and while they continue to see declines in circulation and ratings, it is not at all clear that another round of consolidation is really the answer to the problems that the media industry faces. In fact, it may be the case that consolidations and their attendant cost cuttings and the associated drive for greater "efficiencies" in fact lead to the degraded products that have exacerbated traditional outlets’ reduced stature in the marketplace.
The FCC and Congress should also hold off on allowing any other media ownership rulemaking to move forward until new and emerging media sources are given time to more fully develop into media outlets that can have real impacts as legitimate sources of news and information that influence the terms of public debate.
However, while §202(h) of the 1996 Telecommunications Act remains on the books, the FCC is required to conduct quadrennial reviews of their media ownership rules that, even under the Third Circuit’s less demanding reading of the statute, requires that the agency provide a reasoned analysis that can justify retaining media ownership rules. As I discussed in a previous diary, while this may not sound like an especially demanding standard to meet, the FCC struggles with articulating a coherent conception of diversity that courts can measure in their regrettable reliance on market analyses in reviewing ownership restrictions.
By amending the language of the 1996 Act to put an end to the quadrennial review and the presumption against the retention of ownership rules that it creates, the FCC and Congress can give themselves some time to more accurately assess how they can create a practicable framework that will allow any future media ownership restrictions to survive judicial scrutiny, while also implementing policies that will allow for the growth of new media that can add meaningful contributions to local considerations of important public issues.
In addition to deleting the statutory language that has erected a presumption requiring that the FCC justify any media concentration rule, in order to further address courts’ recurring rejections of the FCC’s attempts to regulate media consolidation, it might be time for Congress and the FCC to consider other approaches that shift the agency away from a focus on merely measuring the number of "voices" that exist in a given media market.
The FCC’s attempts to quantify the voices that exist in a given market and to pinpoint an optimal number of these voices that will adequately promote a robust marketplace of ideas needed in a democratic society have recently run into a great deal of resistance in the Circuit Courts. Specifically, as I outlined in a previous diary, these courts have insisted that the FCC demonstrate a tighter fit between the regulations that the Commission proposes and the stated goal of promoting diversity before they are willing to conclude that the regulations should survive a more searching arbitrary and capricious review.
It may simply be time for Congress and the Commission to come to grips with the fact that viewpoint diversity is, as evidenced by the FCC’s often tortured metrics and arithmetic, excruciatingly difficult to measure in any objective way. Viewpoints are not expressed in a straightforward or simple manner that can be counted and a particular way of thinking about a problem or issue may not be expressed on the air at all. Rather, a perspective on a matter of public importance may manifest itself in a decision not to devote resources to cover a particular story in the first place. This is one of the reasons that the FCC has been forced to fall back on ownership as a necessary proxy for trying to measure the availability of diverse viewpoints within a community.
In addition to this problem with even defining what constitutes a viewpoint, identifying an "optimal" number of viewpoints in a given community, an exercise that is required in the kind of antitrust analysis that is suggested by the marketplace of ideas metaphor, might also be something of a fool’s errand. There is no easy way of measuring when there are "enough" viewpoints available to a particular community because an additional viewpoint does not have a value that is easily pegged, making it difficult, in turn, to identify the price that should be assigned to an additional viewpoint in the market.
Given this difficulty in quantifying the value of an added point of view, the FCC is faced with the almost impossible task of identifying when the value of adding voices to a media market is outweighed by the costs that regulations supposedly impose on media corporations with sufficient clarity to satisfy the more exacting review to which its regulations are subjected in the Courts of Appeal. As I have tried to detail, these courts are likely to require (even if this requirement is misguided given the intrinsic, non-economic values of an independent media in a democracy) that the FCC provide a measure of viewpoint diversity and its added value that includes a hypotheses that can be tested and clearly defined, and the diversity by ownership proxy has repeatedly failed to provide this kind of certainty.
As Professor Adam Candeub’s work implicitly suggests, rather than run through another round of attempted regulation and subsequent rejection in the courts, it might be time for Congress to pass legislation that instructs the FCC that it should actually measure the real amount of political news and public affairs programming that is actually produced in a given market before it approves of any rule or grants any license that would lead to greater media concentration in a market.
Although this would require that the Commission create some standards that it can apply in order to determine what constitutes political news or public affairs programming, this focus on measuring the amount of political news in a market is justified because ensuring the production of news about local politics and issues of public concern advances the democracy-promoting goals of fostering the debate and discussion that really underlie the regulation of media concentration in the first place.
Meanwhile, actually attempting to quantify the amount of political news in a community would also provide some sense of whether a market is receiving enough information about public affairs to keep tabs on the elected officials that are supposed to be acting as the citizenry’s agents. This kind of relatively objective measure would have the benefit of providing a quantifiable goal that could be measured to provide support for those of us who favor regulation depict as valuable in and of itself and would provide a quantifiable measure for "market-based" commentators who too readily dismiss the role that media plays in effective democracy because its impact and importance cannot easily be measured in stark economic terms.
This kind of change to FCC methodology, combined with the elimination of the presumptive invalidity of regulations aimed at controlling concentration, would provide greater assurance that the FCC’s actions would stand a better chance of surviving judicial scrutiny.
Additionally, given the important functions that the broadcast outlets still perform, albeit sometimes rather poorly, in local communities, and given the need to maintain a minimum number of independent media outlets that perform the important political newsgathering and investigative functions discussed above, the other ownership limits should remain in place at least until a viable alternative that could both effectively meet the needs of local communities and respond to current technological paradigms can be put in place. At this point, these limits perform an important function in assuring some minimum level of viewpoint diversity in the way that the news media covers important public issues and debate that cannot be readily tossed on history’s ash heap without first ensuring that some new framework is set up to serve a similar purpose.
While these policy suggestions are geared towards holding the line on any further media consolidation, the new Obama administration simply can't afford to stop with policies that merely contain the damage that has been done. Rather, they need to create a new paradigm of media regulation that is geared towards the new realities of the digital age. Tomorrow, in the last diary of this series, I'll propose some ideas for moving media regulation forward into the 21st century.