A tale of three cities: "diverse and antagonistic" information in situations of local newspaper/broadcast cross-ownership.

• Author: Pritchard, David
• Position: Chicago, Dallas and Milwaukee

1. INTRODUCTION

   For more than half a century, a fundamental principle of communications policy in the United States has been that the "widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public...." (1) The Federal Communications Commission ("FCC") routinely relies on this principle as a basis for its actions, (2) and the Supreme Court of the United States has used it to support rulings in a variety of contexts related to media and communication. (3)

   Few scholars or policy makers would question the assertion that the marketplace of ideas, a notion at the very core of modern conceptions of democracy, benefits from the "widest possible dissemination of information from diverse and antagonistic sources." Many question, however, whether current FCC policies intended to foster diversity of news and views in the content of the mass media actually do so. Nowhere is this issue raised more starkly than with respect to the Commission's controversial 1975 rule that prohibited the common ownership of a daily newspaper and a broadcast station in the same market. (4)

   The rule was based on two related assumptions. The first assumption is what the FCC calls "source diversity," meaning that diversity of ownership of media outlets inevitably leads to content diversity which in turn leads to a wide dissemination of diverse and antagonistic information. The second assumption is that a single owner of a daily newspaper and one or more broadcast stations in a given market will not likely provide diversity of news and information. In late spring of 2000, the Commission renewed its support for the prohibition of local newspaper/broadcast cross-ownership. (5) The Commission reiterated its belief that diversity of ownership promotes diversity of viewpoints, quoting with approval its 1975 statement that "it is unrealistic to expect true diversity from a commonly owned station-newspaper combination." (6) The Commission offered no empirical evidence to support its view that it is unrealistic for newspapers and broadcast stations under common ownership to provide a meaningful diversity of viewpoints.

   This Article represents an attempt to help fill that empirical gap. It reports the results of a study concerning diversity of information and viewpoints regarding the 2000 presidential campaign within cross-owned newspaper/broadcast combinations in three large American cities: Chicago, Dallas, and Milwaukee. When it established the regulation prohibiting cross-ownership in 1975, the FCC permitted most existing newspaper/broadcast combinations to continue, including the three studied here. In sharp contradiction to the historical assumptions of the FCC, this study found substantial diversity in the news and commentary offered by each of the three newspaper/broadcast combinations.

   The following portion of this Article provides a brief background of policies relating to newspaper/broadcast cross-ownership in the United States. The Article then explains the context of the study and the methods used to gather data before offering the results for each market under study. The Article concludes with a summary and recommendations.

2. BACKGROUND

   Concern about newspaper/broadcast cross-ownership has existed since the early days of broadcast regulation in the United States/The issue came up in the 1920s during congressional debate over the Radio Act of 1927, (8) though more because some members of Congress feared that the promotional power of radio might give newspapers that owned a station an unfair advantage over competing newspapers than because of any concern about viewpoint diversity. (9) The Great Depression of the 1930s caused major changes in the economics of the American media. Newspaper competition in many cities declined at a time when many surviving newspapers expanded into radio broadcasting, leading to a growing concern that concentration of ownership would dilute viewpoint diversity. The FCC was not unaware of the concern. Dissenting in a 1936 licensing decision, Commissioner Irvin Stewart urged the Commission to deal directly with the question of whether the public interest was served by newspaper/broadcast cross-ownership in a given community. (10) Two years later, the Commission based a decision in favor of an applicant without other media interests, and against a newspaper corporation, on the principle that new ownership would provide new viewpoints. (11) A study of newspaper/broadcast cross-ownership by the FCC's Engineering Department in 1938 concluded that there was so much variety in newspaper/radio combinations that no general rule against cross-ownership was justified. (12)

   Three years after the Engineering Department's recommendation, however, the Commission announced that it would consider whether to limit newspaper ownership of broadcast stations. (13) Newspaper interests protested the rulemaking proceeding, arguing that the Commission lacked the authority to regulate the activities of newspapers. (14) After a powerful newspaper publisher refused to testify at Commission hearings, the Court of Appeals for the District of Columbia ordered him to appear. The court declared in dicta, however, that the Commission could not prohibit newspaper publishers, as a class, from receiving licenses to operate broadcast stations. (15) In early 1944, the Commission ended the proceedings without adopting any rules prohibiting cross-ownership. (16)

   It was not until the era of television that the issue of newspaper/broadcast cross-ownership returned to the Commission's agenda, due to a political context that is beyond the scope of this Article. (17) Spurred on by its Antitrust Division, the Commission adopted the current prohibition of local cross-ownership of daily newspapers and broadcast stations in 1975. (18) The Commission concluded that the Communications Act provided statutory authority to issue the rules, (19) and that the rules were valid under the First and Fifth Amendments. (20)

   More surprising was that the Commission adopted the rule even though it acknowledged that research regarding the effect of ownership on content was inconclusive. (21) Studies submitted to the Commission showed that the presumption of a link between media ownership and diversity of news content rested on a shaky empirical foundation. A 1974 Rand Corporation review of existing research funded by the National Science Foundation concluded: "Analysis of prior studies indicates that media cross-ownership or group ownership plays a minor role, if any, in influencing the content of daily newspapers, radio, and television stations." (22) The authors of the review added that the "evidence has not shown that group or cross-media owners influence their media outlets or otherwise behave differently from other media owners." (23) With respect specifically to local cross-ownership, the authors noted in a related report: "The evidence on the effects of media cross-ownership supports neither allegations of substantial harm nor those of substantial public benefits from newspaper-television combinations." (24)

   Despite the inconclusive empirical record, the FCC noted that "ownership carries with it the power to select, to edit, and to choose the methods, manner and emphasis of presentation...." (25) The Commission concluded: "[I]t is unrealistic to expect true diversity from a commonly owned station-newspaper combination." (26) Accordingly, the Commission adopted a rule prohibiting individuals or corporations that owned daily newspapers from receiving licenses to operate broadcast stations in the same market. (27) The Commission decided to allow the continuation of existing cross-owned combinations in all but the most egregious cases. (28)

   Media interests challenged the rule in court, but the Supreme Court unanimously upheld the FCC's prohibition of future newspaper/broadcast cross-ownership. (29) The Court apparently was not troubled that empirical studies had failed to demonstrate a link between patterns of media ownership and media content: "[N]otwithstanding the inconclusiveness of the rulemaking record, the Commission acted rationally in finding that diversification of ownership would enhance the possibility of achieving greater diversity of viewpoints." (30)

   Two decades later, the Telecommunications Act of 1996 required the FCC to review all of its broadcast ownership rules every two years, beginning in 1998, and to repeal ownership restrictions that could not be shown to serve a clear public interest objective (31). In May 2000, the Commission completed the first required biennial review of the newspaper/broadcast cross-ownership rule by concluding that the rule should, as a general matter, be retained on the grounds that diversity of media ownership in a community would lead to a greater diversity of viewpoints. (32) The Commission acknowledged vast changes in media technologies and markets since the rule was adopted in 1975 but said that the rule continued to foster viewpoint diversity, an important public policy goal. (33) The Commission cited no empirical research to support its view that common media ownership leads to reduced viewpoint diversity. Indeed, by the mid-1990s most empirical research suggested the opposite--that ownership has little if any measurable impact on content. (34)

   Ignoring the available research, the Commission expressed doubt that commonly owned news organizations could provide reasonable diversity of viewpoints. "[W]ithout a diversity of ownership or editors, there would be no real diversity of viewpoints" (35). The Commission acknowledged that there might be communities where the ban on newspaper/broadcast cross-ownership was not necessary to protect the public interest; some markets might be so large and have such a competitive, diverse marketplace of ideas that a newspaper/broadcast combination might be permissible. (36) Even that statement, however, reflected...