News Articles

It's About Time To Kill the Caps

1/26/2003 07:00:00 PM Eastern



Author Information
Fein is former general counsel of the FCC (1983-84). His Web site is feinandfein.com.

The Federal Communications Commission should abandon its six slabs of ill-conceived media-ownership rules to crown its outstanding omnibus rulemaking proceeding. To paraphrase Oliver Cromwell on the Rump Parliament, they have sat too long for any good they have ever done. Let them depart and be done with them.

The commission was conceived in New Deal gospel and dedicated to the proposition that the broadcast media should be fragmented to promote a rich emporium of diverse news and views. Time and a new birth of old wisdom have discredited the FCC's origins.

Since the Communications Act of 1934, not a crumb of evidence has surfaced hinting that competitive broadcasting markets or submarkets require more-stringent "public-interest" policing than the Sherman Act and Clayton Act prohibitions against anticompetitive mergers or acquisitions enforced by the Department of Justice, the Federal Trade Commission and private lawsuits.

Further, the commission's diversity rationale for splintering media ownership is as unpersuasive as the geocentric theory of the universe. It has never defined diversity; it has never measured diversity; and it would flagrantly violate the First Amendment to prefer one broadcast owner to another based on political or ideological views that the commission insisted were "underrepresented" in media markets.

The antitrust laws shipwreck all media mergers or acquisitions that would cause unreasonable restraint of trade, lessen competition or "tend to create a monopoly." Accordingly, every FCC ownership-limitation rule is either mischievous or superfluous.

It speaks volumes that, despite the consolidation of media ownership over the past decade, no anticompetitive effects have been demonstrated. Even if there had been, the Justice Department, FTC and injured private parties could have sued to remedy the economic harm.

In one of its proposed rulemakings, the agency notes the substantial consolidation of radio ownership since 1996 in Syracuse, N.Y.; Rockford, Ill.; and Florence, S.C. Yet it confesses to an absence of empirical evidence showing harm to media competition or diversity. In other words, for endless years, the commission has clung to media-ownership limitations based on uncorroborated New Deal hunches or stargazing contradicted by experience.

The commission sophomorically celebrates atomizing media ownership to multiply the number of voices. The First Amendment twinkles, however, not when everyone speaks through a media outlet but when everything worth saying is said. And big media is necessary to scrutinize big government.

Could media midgets have driven the Watergate and Iran-contra investigations? Of course not. They cannot afford the best and the brightest among journalists. And public debate about public policy is degraded, not enriched, through repetitious preachings by the untutored to the untutored.

If the commission mulishly persists in its ownership rules, regulatory history will summon the reproach of the French Bourbons: "They learned nothing, and forgot nothing."



Author Information
Fein is former general counsel of the FCC (1983-84). His Web site is feinandfein.com.

 

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