Broadcast technology as diversity opportunity: exchanging market power for multiplexed signal set-asides.

• Author: Epstein, Michael M.

1. INTRODUCTION: PUBLIC ACCESS IN EXCHANGE FOR MARKET POWER: TWO APPROACHES BASED ON QUID PRO QUO II. IDENTIFYING THE PROBLEMS: LACK OF ACCESS, LACK OF DIVERSITY A. The Current State of Access Rights B. Connecting Access, Diversity, and Ownership: An Evolving Debate 1. Scarcity as a Justification for Diversity and Localism 2. Questioning Allocational Scarcity in a World of Abundant Media 3. Free Markets, Diversity, and Localism C. Revisiting the Public Trustee Theory III. APPLYING THE QUID PRO Quo ARGUMENT TO ELECTRONIC MEDIA A. Quid Pro Quo in Lieu of Scrutiny 1. Erie's Contractual Quid Pro Quo Approach 2. Contractual Approach to Quid Pro Quo after Erie 3. Contractual Quid Pro Quo and the Nature of Cable Franchise Agreements B. The Scrutiny Alternative: Quid Pro Quo Under the O'Brien Test IV. MULTIPLEXING AS ACCESS OPPORTUNITY A. Multiplexing as an Additional Government Benefit B. Scaled Bandwidth/Time-Based Access Formula V. EXTENDING THE QUID PRO QUO TO ALL CONGLOMERATE-OWNED MEDIA A. Waiving First Amendment Rights or Exchanging Speech Burden for Access B. Content-Neutral Right of Access and Editorial Discretion VI. CONCLUSION I. INTRODUCTION: PUBLIC ACCESS IN EXCHANGE FOR MARKET POWER: TWO APPROACHES BASED ON QUID PRO QUO

   This Article proposes that Congress revisit the concept of a public right of access to broadcast media and enact legislation so that those who do not have market power in the media can have access to local stations in order to air local views or content. As increased bandwidth, digital compression, and alternate content sources make it possible for companies to own more media outlets, policymakers need to look beyond the scarcity of broadcast frequencies (1) if they want to foster a true marketplace of ideas. Courts and policymakers must look at market power and public access in order to find a viable solution to the lack of diverse programming content. The debate is not about whether a regional corporation should be permitted to compete against a conglomerate in the broadcast marketplace, but whether broadcast media with market power, in return for the access granted to them by the government, have an obligation to air both local and nationally diverse views on the public's airwaves.

   The access regime advocated in this Article is based on a theory of quid pro quo: (2) a bargained-for exchange in which broadcasters would trade media access for market power. Under this quid pro quo approach, the FCC would administer a scaled metric whereby the greater a conglomerate's audience reach, (3) the more access that conglomerate must provide to citizens with diverse and/or local content. In an analog broadcasting context, one possible application of the quid pro quo theory would be to look to a time-based right of access that is accepted voluntarily by media companies in exchange for the government granting increased electronic media ownership caps.

   While this Article advocates a specific quid pro quo metric, which is defined below, there are two distinctively different approaches that would legally permit the government to trade market power for access even if the courts abandon the scarcity justifications for access validated by the Supreme Court in the 1969 case of Red Lion Broadcasting Co. v. FCC. (4) An expansive approach to quid pro quo follows existing jurisprudence relating to contractual waiver of constitutional rights and implements the licensee as public trustee justification that is also proffered in Red Lion, albeit with less notoriety. Building upon existing Supreme Court contracts cases and applied in a media context in Erie Telecommunications v. City of Erie, 853 F.2d 1084 (3d Cir. 1988), this contractual quid pro quo approach allows the government to enact content regulations not subject to strict scrutiny. (5) Such an approach arguably would permit an activist Congress or the FCC to revive the Fairness Doctrine (6) or impose even greater speech burdens upon broadcasters irrespective of scarcity and without scrutiny.

   In addition, there is a narrower form of quid pro quo that would validate "zone-based" (7) access as structural broadcast regulation. This narrow approach subjects zone-based public access to the same type of intermediate scrutiny used by the Supreme Court to validate structural cable regulation in Turner Broadcast System, Inc. v. FCC. (8) In this second approach, the quid pro quo is not contractual, but rather is present in the manner in which a court would evaluate the speech burden incidental to the structural regulation. As part of a content-neutral structural regulation, the quid pro quo would be a value added for broadcasters, since, with respect to digital broadcasting, Congress would have the authority to set aside multiplexed signal streams for public access, just as it currently does with cable and DBS channels. (9)

   Moreover, even if the speech burden were deemed to be greater on broadcasters than it would be in other media outlets, the quid pro quo would act to mitigate that burden by providing broadcasters with a benefit to which they would not otherwise be entitled: increased audience reach. Although the contractual waiver quid pro quo would legally validate the structural access regulation envisioned herein, its implications on broadcasting may be too great for Congress to bear in the current political climate, since it could be used to justify content-intrusive regulation in the absence of scarcity. Still, politics aside, either approach would validate a public right of access to broadcast stations and could arguably extend the reach of access regulation to conglomerate-owned newspapers that would otherwise be prohibited under the Supreme Court's ruling in Miami Herald v. Tornillo. (10) Indeed, the possibility that market power quid pro quo would make public access to certain print properties achievable makes these approaches especially valuable as access regulation.

2. IDENTIFYING THE PROBLEMS: LACK OF ACCESS, LACK OF DIVERSITY

   1. The Current State of Access Rights

      The United States, unlike many developed countries, offers no general right of access to any type of media. Still, as a constitutional matter, it is important to distinguish between a right of reply and a right of access. A right of reply arises from a speaker's content. This would encompass the individual right to respond to a personal attack, as in Red Lion, (11) for the right to air an opposing view in a public controversy. A right of access, on the other hand, arises for reasons wholly unrelated to speech content, including the nature of a media technology or the status of the initial speaker. (12) The difference is important under U.S. Constitutional law, as rights of access may be devised as content-neutral structural regulations, while rights of reply are necessarily content regulations. In the aftermath of the FCC's repeal of the Fairness Doctrine, there is currently no right of reply or access available to the American public. (13) A limited right of access exists for qualified candidates for federal office, and a content-triggered general right of reply is available to all legally qualified candidates, but these statutory provisions do not apply to the general public, or indeed to anyone but opposing candidates. (14)

      For print media, the Supreme Court ruled that the First Amendment forbids the government from legislating rights of reply to newspapers. In Tornillo, the Court struck down a Florida statute that would have given a candidate the right to respond to a newspaper editorial attacking him. (15) The Court determined that requiring rights of reply was tantamount to government interference in the editorial discretion of a free press, notwithstanding the economic obstacles to the candidate making an effective response to the newspaper's personal attack. The Justices were specifically concerned with the chilling effect a right of reply statute would have on robust debate since editors would have an incentive to avoid news coverage of controversies. (16) Tornillo's First Amendment analysis, premised on the theory that anyone can be a publisher, suggests that if the courts were to determine that broadcasting, as a subset of proliferating electronic media is not scarce, (17) then a right of reply such as the Fairness Doctrine would no longer be constitutional for the airwaves, even if Congress were to enact it. (18) While it is clear that Tornillo prohibits rights of reply to nonscarce media technologies like newspapers, whether it effectively bans all rights of access to media is a matter open to debate. With the exception of advertisements that discriminate on the basis of gender, (19) the Supreme Court has not validated any rights of access for print media. Thus, in articulating a workable right of access to government-owned media technology, it is important to address the First Amendment concerns articulated in Tornillo.

      Tornillo must not be read broadly as a bar to all rights of access to media. Justice Brennan, in his concurring opinion, suggests as much when he questions the scope of the principal opinion's broad ruling. (20) Still, even if the Supreme Court were to hold that the First Amendment strictly prohibits government-mandated access to newspapers, broadcasting is a different medium, with different characteristics, even in the absence of scarcity. (21) To some extent, courts have already recognized that medium-specific differences can act to limit Tornillo's application to nonscarce media access. Instructive on this point is the willingness of courts to uphold the constitutionality of public access rights to cable television systems, even in the absence of allocational or numerical scarcity. (22)

   2. Connecting Access, Diversity, and Ownership: An Evolving Debate

      United States broadcast regulation over the last eight decades has been built upon three interrelated issues: access, diversity, and ownership of scarce broadcast frequencies. The problem is that...