How else to explain industry's argument that the modest federal caps onownership of stations and other media outlets violate corporate free-speechrights? Never mind the public's right to "the widest possible dissemination ofinformation from diverse and antagonistic sources," in the words of the SupremeCourt, which in 1945 deemed that such a free flow of information is "essential"to our welfare. That principle, apparently, is now to be superseded by acorporation's right to corner whatever markets it can.
This raises the specter that other media will follow the path of radio andpublishing toward oligopoly. Five conglomerates command 80 percent of all booksales, while a mere two radio giants--with well over a thousand stationsbetween them--control more than a third of all radio advertising revenuenationally, and up to 90 percent in some markets. Even a cursory tour up and downthe radio dial reveals the homogenization that has leveled that medium--asobering portent of what may soon become television's fate.
"Radio is the model," warns Reed Hundt, former chairman of the FederalCommunications Commission (FCC). "That's the harbinger for what's going to happento TV." And if that sounds implausible, it shouldn't. For once the safeguardspreventing further consolidation and sale of broadcast, cable, and newspaperempires are dismantled entirely--and they are currently under court challenge andFCC review--the "Let's Make a Deal" live tour will be off to a rousing start.
Wave the Flag, Waive the Regs
If any additional evidence of life imitating entertainment is needed, lookno further than Mel Karmazin, president of CBS's parent, Viacom, whose company'sprofits will merely match last year's $5 billion rather than reaching itsprojected $5.6 billion. In a recent stand-up routine at a Goldman Sachs investorbriefing, Karmazin suggested that given the current state of war (with mediaadvertising revenues dropping faster than bombs over Afghanistan), his industrymerits special consideration from Washington regulators. Such consideration wouldinclude relaxing the restrictions that bar companies such as his from owningstations that reach more than 35 percent of the viewing public (or from owning aTV station and a cable system, or a TV station and a newspaper, in the samecommunity). Ever the optimist, Karmazin not only expressed confidence thatWashington would accede to these demands but also managed to find a silver liningin the tragic events of September 11, citing the depressed media stock pricesthat will allow Viacom to scoop up new acquisitions at bargain-basement rates. Ifit wasn't exactly "What's good for Viacom is good for the country," Karmazin'sremarks nonetheless made clear that his conception of the public interestrevolves narrowly around the interests of Viacom shareholders.
And so it goes at the corner of Hollywood Boulevard and Pennsylvania Avenuethese days, a time when the terrorist attacks have become a convenient leitmotivto the media titans' expansionist plans. It's a not-so-subtle quid pro quo--we'llwave the flag, you waive the regulations--that couldn't ask for a cozier settingthan contemporary Washington. After lining the campaign coffers of both sidesof the aisle (contributing more than $131 million in the 2000 election cyclealone), the media and technology giants are now answering the government's callfor more patriotic, responsible fare in the ongoing war against terrorism. Andthe conglomerate soldiers couldn't have asked for a kinder, gentler drillsergeant over at the FCC than they have in the person of Michael Powell, son ofSecretary of State Colin Powell. The media companies haven't had such a friend inWashington since Ronald Reagan appointed Mark Fowler as FCC chairman. (It wasFowler who deflated expectations all around, calling television a mere "toasterwith pictures" that didn't really require regulatory oversight and defining thepublic interest as "whatever interests the public.")
Seemingly bent on trumping Fowler and becoming the James Watt of theelectronic environment, Powell was named the new administration's FCC chairman inJanuary of this year (having been one of President Clinton's Republicanappointees to the commission three years earlier). With some clever writing ofhis own, the 37-year-old Powell is clearly one of the rising young Republicanstars in Washington. Eager to distance himself from his predecessor, WilliamKennard (also black, but whose maddeningly cautious FCC stewardship now appearsalmost radical in retrospect), Powell dismissed the "digital divide" thatseparates minority households and poorer neighborhoods from the fruits of thetechnology revolution as little more than a "Mercedes divide": "I would like tohave one," he scoffed. "I can't afford one." Powell has made clear his misgivingsabout the FCC's traditional regulatory function. He discounted thebroadcast-ownership cap as one based on "a romantic notion... an emotional one,"for example, suggesting that such limits on corporate market size "are almostalways poorly calibrated." According to Powell, "there is something offensive toFirst Amendment values about that limitation."
Powell took no such offense, curiously enough, when his agency slapped a$7,000 fine on a Colorado radio station for playing an expurgated version ofan off-color Eminem rap song. That little dent on the Bill of Rights waspresumably designed to curry favor with more conservative Republicans, whosestrict-constructionist constitutional scruples never extended to either politicalprotest or artistic license. Chairman Powell's explanation wasuncharacteristically simple: "I don't believe [the First Amendment] is somecynical 'Get out of jail free' card for broadcasters."
But what's truly cynical is Powell's apparent complicity in idly watching as ahandful of mass-media giants invoke the First Amendment in an effort to gain evengreater sway over the airwaves. First recognized by the Supreme Court in 1976,the free-speech rights of corporations were traditionally accorded lessprotection than traditional speech. But through court challenges and extensivelobbying campaigns, the First Amendment has gradually assumed its place, alongwith tax credits and government contracts, as a key weapon in the corporatearsenal. "Increasingly," notes AOL Time Warner CEO Gerald Levin, who shouldcertainly know about such things, "through the help of the courts--that is, thereach of the First Amendment--we'll have opportunities." And that, of course,is a euphemism for the enormous payoff that companies such as AOL Time Warnerwill reap from their constitutional sleight of hand. First they succeeded instretching the concept of commercial speech to include virtually any transaction,however pedestrian or crass, and then they managed to elevate such putative"speech" over the public's right to choose from the broadest possible range ofspeakers.
"Corporations are artificial entities," observes Andrew Schwartzman, presidentof the Media Access Project and a longtime public-interest advocate. "Yet theyare being afforded speech rights as if they were living, breathing, votingcitizens." Of course, they do have living, breathing, free-spending lobbyists.Under the First Amendment, Schwartzman explains, it's reasonable to argue thatthe government may not block companies from expressing viewpoints that it findsoffensive. But it's unreasonable to interpret the First Amendment as blockinggovernment regulations designed to protect the range of voices that can be heard.Courts taking that view, notes Hundt, "defeat the very goal of the FirstAmendment by putting the free-speech rights of powerful companies ahead of thefree-speech rights of everyone else."
Time Warner Entertainment (TWE) attempted as much in its recent oral argumentsbefore the U.S. Court of Appeals in a case challenging the FCC's broadcast-cablecross-ownership rule. TWE attacked the policy (which, in the interest ofpreserving a measure of diversity, prevents a company from owning a televisionstation and a cable system in the same market) as a "ban on speech." And withlogic that effectively stood the First Amendment on its head, the company went onto chastise the FCC for daring to promote "speech of a particular content: newsand public affairs programming with regard to local issues and events." That wasa patent effort by the government, or so Time Warner claimed, "to manipulatespeech."
In support of their rereading of the First Amendment, mediamoguls are apt to point to the emerging new media system. With its seeminglyunlimited sources of online information and opinion, and with the broadbandrevolution nigh upon us, we are supposedly relieved of the obligation to monitorthe concentration of power and control in the old media. It's a handy brush-offof responsibility, made all the more deceitful by the media giants' designs onthe Internet, too. The vast majority of Americans, in any case, still get theirnews from television and the daily newspaper, and that's not likely to changeanytime soon.
"The recent explosion of media and communications technology was expected todeliver consumers a brave new world of competition across all telecommunicationsand media markets," explained the Consumers Union's Gene Kimmelman incongressional testimony last July. "There is no doubt that today, consumers havethe option of receiving news, information, entertainment from a far greatervariety of media--newspapers, radio, television, the Internet--than ever before.Unfortunately," Kimmelman told the lawmakers, "this growth in variety has notbeen accompanied by a comparable growth of independent, diversely ownedcompetitive communications services and media voices."
The Internet may yet provide a viable platform for such diversity andcompetition, fulfilling its potential to be the "most participatory form of massspeech yet developed," as the Supreme Court once described it. But right now itseems headed in quite the opposite direction, with AOL Time Warner controllingfully a third of all user time spent online and Microsoft and Yahoo angling tobring the total share of the top three up to 50 percent or more. As New YorkTimes columnist Frank Rich once asked: "If you believe that the Internet isthe greatest explosion of free expression and cultural resources of the pastcentury, what happens when it is merchandised as a mass-market product by thebiggest corporations in history?"
The current spate of deregulation in Washington, unfortunately, will onlyhasten this merchandising trend, with the broadband Internet increasingly fallinginto cable's closed marketplace of subscription, pay-per-view, and premiumservices. "If our only media policy is enthusiastically pro-consolidation," theConsumer Federation of America's Mark Cooper has observed, "it is unlikely thatthis new technology will ever achieve its real potential." The battle for a moredemocratic media in the digital age is not over, certainly, but the political andlegal challenge is daunting.
