The FCC's recent media-ownership order offers an extremely narrow view of the commission's First Amendment duties. Namely, that it is not "necessarily healthy for public debate to pretend as though all sides are of equal value or entitled to equal airing." The FCC does not care that broadcasters "do not always, or even frequently, avail themselves to others who may hold contrary opinions" and would care only about the complete suppression of a point of view. The commission tries to soften this view by reminding us that the average American has more entertainment viewing choices than ever, on average 102 channels.
Fortunately, neither the public nor the Supreme Court shares this narrow view, so the order is not likely to stand. The First Amendment is about the freedom of every citizen to speak, not the right to hear broadcasters speak. For print and electronic media, the Supreme Court applies the principle that "the widest possible dissemination of information from diverse and antagonistic sources is essential to the public welfare."
For broadcast media, serving that public welfare is problematic because, as the Supreme Court has repeatedly recognized, "where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish."
In other words, we limit the number of broadcast licenses a single entity can hold because there are far more citizens who want a license than there are licenses. People without broadcast licenses are at a distinct disadvantage in getting their ideas aired precisely because license holders decide what is broadcast. Cable does not change this equation much because each operator controls all of the channels on its system, except for those broadcasters have a legal right to control and a handful of under-funded access channels.
In the past quarter century, the number of owners of broadcast stations and the number of broadcast newsrooms have declined. The average American city must get its news about a school-board election or congressional race, for example, from that limited supply, while the population has grown larger and more diverse.
With licenses still very scarce, the broadcast and cable industry claims that an e-mail address and a Web site give ordinary citizens just as much of an electronic voice as owners of broadcast stations and major networks. If the Internet and broadcasting are so equal, broadcasters should not mind relinquishing their licenses and shifting their distribution to the Internet. I suspect they would not be very happy to have the power of their voices reduced to that of ordinary citizens.
The "widest possible dissemination" that the high court says is "essential" has yet to be achieved. It should not be abandoned by allowing a smaller number of entities to own multiple TV stations, numerous radio stations and dominant newspapers in the same city.