- The Washington Times - Monday, July 21, 2003

TheFederal Communications Commission and Congress are both wrong in their current clash over whether media-ownership limits to promote viewpoint diversity should be either relaxed or maintained. The limits should be abandoned. Concentration of radio, television and newspaper properties should be policed only by antitrust laws that arrest anti-competitive mergers or acquisitions in all industries.

Since the birth of broadcasting, Congress and the FCC have attempted to atomize the media industry. Ceilings have been placed on multiple ownerships of radio or television properties and networks. Further, newspaper-broadcast and radio-TV cross-ownerships in local markets have been prohibited.

On June 2, the FCC voted to mitigate some of these media combination shackles. Under the new dispensation, in markets with five or more television stations, a single company may own two broadcast properties if one of the pair languishes in the ratings cellar. In markets featuring 18 or more TV outlets, one company may own three stations if only one commands a premier rating. A party may own television properties that in aggregate reach 45 percent of the national audience, an increase of 10 percent from the previous 35 percent ceiling. In markets with nine or more TV stations, newspaper-broadcast and television-radio cross-ownership limitations are lifted.

The FCC’s loosening of media-concentration restrictions seems measured in light of the explosion of alternate news sources over the Internet and otherwise. Never have so many Americans enjoyed so many information and commentary choices. Yet Congress is perched to frustrate the FCC’s actions. Last week, the House Appropriations Committee adopted an amendment that would freeze the 35 percent cap on the national audience reach of TV stations that a single entity may own. And on July 15, 2003, a bipartisan array of senators introduced a joint resolution that would disapprove the FCC’s June 2 order in all respects.

But media concentration fretting is folly. The attempts by the FCC and Congress to diffuse media ownership rest on the postulates that the greater the number of independently owned outlets, the greater the diversity of ideas; and the greater the diversity of ideas, the greater the likelihood of discovering political truths. Both assumptions are ill-conceived.

What freedom of speech covets is that everything worth saying shall be said, not that everyone shall speak. And that requires media combinations sporting high-priced investigative talents and resources typically necessary to uncovering fraud, waste or abuses by mammoth government or corporate bureaucracies; for instance, “pork barrel” projects hidden within tome-like spending bills or Defense Department cost overruns for new weapons. In contrast, midget media companies shy from independent investigation or news reporting because of preoccupation with profits. Contemplate the monumental media expenses entailed in the investigation of Whitewater, Watergate or Iran-contra. Stand-alone broadcast outlets thus serve as echoes or stenographers of the wire services or media empires. They add nothing to the store of public knowledge that makes our republican government flourish.

Public officials and figures who strut in the corridors of power fear Fox, ABC and The New York Times, not solo radio broadcasters. Limiting media combinations thus impairs the organized scrutiny of government celebrated by the First Amendment and blunts public enlightenment and perspicacity.

A diversity of views for the sake of diversity is mindless. Granting preferences in the award or transfer of broadcast licenses to owners who would preach the geocentric theory of the universe, a flat Earth, or an impending invasion of hordes from UFOs would enlarge the diversity of discourse but debase its utility. There is the same chasm of difference between informed and fatuous viewpoints in the search for truth as between the living and the dead, an axiom that media-concentration restrictions neglect.

But suppose viewpoint diversity, simpliciter, were commendable. Nothing assembled by the FCC since its birth in 1934 convincingly shows that ownership diversity means viewpoint diversity. The FCC has been unable to develop viewpoint indicators or profiles that could prove that markets served by many independent media outlets offer a greater number of diverse viewpoints than those served by a few. For instance, the FCC holds no evidence that New York City’s citizens enjoy access to more diverse broadcast and newspaper viewpoints than do the citizens of much smaller media markets, like Buffalo. Indeed, the FCC is incapable of measuring viewpoint diversity because it has never defined the concept, not even the “I know it when I see it” standard proffered by Justice Potter Stewart to differentiate the obscene from the non-obscene. Further, to believe that ownership diversity fosters viewpoint diversity is counterintuitive. All commercial broadcast owners seek to maximize profits through programming attractive to the local audience. The infatuations and velleities of the latter are thus decisive in programming decisions, not those of the broadcast owner.

In sum, viewpoint diversity through media-ownership limits is a myth mischievous to the First Amendment. Shouldn’t that regulatory frolic end?

Bruce Fein is a founding partner of Fein & Fein.

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