Antitrust and the Media

• Author: Christopher L. Sagers
• Pages: 241-258

241

CHAPTER XIII

ANTITRUST AND THE MEDIA

Media entities are ordinarily subject to the same antitrust rules as

other firms.

1

While they enjoy some First Amendment protection from

content restrictions and from regulations that discriminate specifically

against them,

2

they enjoy no general immunity from antitrust as to their

business conduct.

3

Likewise, with one minor exception,

4

the regulatory

oversight of the Federal Communications Commission (FCC)

5

has been

held insufficient to modify substantive antitrust rules.

6

Sometimes,

oversight by the FCC or by state regulators can trigger some limits,

typically by limiting remedies or triggering referral to a regulator with

primary jurisdiction, but those results merely reflect the doctrines of

1

. Cohen v. Cowles Media Co., 501 U.S. 663, 670 (1991) (the press “has no

special immunity from t he application of general laws[,] [and] . . . has no

special privilege to invade the rights and liberties of others. Accordingly,

enforcement of such general laws against the press i s not subject to

stricter scrutiny than would be applied to enforcement against other

persons or organizations.” (quoting Associated Press v. NLRB, 301 U.S.

103,132-33 (1937)).

2

. First Amendment aspects of antitrust in media co ntexts are fully

discussed in Chapter IV.B.

3

. Citizen Pub’g Co. v. United States, 394 U.S. 131, 139 -40 (1969); Lorain

Journal Co. v. United States, 342 U.S. 143, 155-56 (1951); Associated

Press, 326 U.S. at 6-8, 19-20.

4

. The exception is the FCC’s statutory role in app roving some media

mergers, which modifies ordinary antitrust treatment. See part XII I.B of

this chapter.

5

. Specifically, the FCC licenses broadcasters and can revoke their licenses

on conduct or fitness grounds, and has also imposed various multiple

ownership and cross-ownership limits on broadcast licensees. See

genera lly 2 ABA SECTION OF ANTITRUST LAW, ANTITRUST LAW

DEVELOPMENTS 1326-27 (7th ed. 2012) [hereinafter ALD].

6

. United States v. Radio Corp. of Am., 358 U.S. 334, 350 (1959) (because

in broadcasting, where “there [was] no pervasive regulatory scheme, and

no rate structures to throw out of balance,” antitrust could apply without

exception). See generally 2 ALD, supra note 5, at 1326-27.

A Handbook on the Scope of Antitrust

242

implied repeal, filed rate, and primary jurisdiction, which are discussed

elsewhere in this book.

7

The remainder of this chapter will be devoted to three special,

additional statutory rules that sometimes limit antitrust as it applies to the

media. For the most part, these rules reflect a central goal running

throughout federal media policy: the preservation of content diversity. As

in a handful of other areas in American policy, communications law has

sometimes used competition to achieve goals other than the efficiency

values now associated with price theory.

8

Specifically, communications

law has used competition to serve the goal of diversity.

The federal diversity goal, as the FCC has acknowledged,

9

is rooted

in a similar value first expressed in First Amendment caselaw. Justice

Black captured the idea in a famous passage in 1945, in Associated Press

v. United States

10

:

[The First] Amendment rests on the assumption that t he widest possible

dissemination o f information from diverse and antagonistic sources is

essential to the welfare of the public. . . . Surely a command that the

government itself shall not impede the free flow of ideas does not

afford non-government combinations a refuge if they impose restraints

upon that constitutionally guaranteed freedom . . . . Freedom of the

press from governme ntal interference under the First Amendment do es

not sanction repression of that freedom by private interests.

11

While communications law pursues diversity in a variety of ways,

three specific rules are relevant here, in that they involve modifications

or limitations of antitrust. First, the Newspaper Preservation Act (NPA)

12

7

. Implied repeal is discussed in Chapter VII, t he filed rate doctrine is

discussed in Chapter VIII, and the doctrine of primary jurisdiction is

discussed Chapter IX.

8

. Other examples are now rare, but they include banking law, which retains

some limits on firm size, concentration, and lines of business as a way to

limit systemic risk, see Chapter XV.B, and rules relating to defense

industry competition, designed to ensure capacity in times of national

emergency.

9

. See FCC, Final Rule, Broa dcast Ownership Rules, Cr oss-Ownership of

Broadca st Stations a nd Newspapers, Multiple Ownership of Radio

Broadca st Stations in Local Markets and Definitions of Radio Markets,

68 Fed. Reg. 46,286, 46,299 (Aug. 5, 2003).

10

. 326 U.S. 1 (1945).

11

. Id. at 20.

12

. Pub. L. 91–353, July 24, 1970, 84 Stat. 466 (1970) ( codified at 15 U.S.C.

§§ 1801-04).