Control, Creators, and Content: The Past, Present, and Future of Diversity in Media Ownership

• Author: Susan H. Duncan and Emelia O'Neill
• Position: Dean and Professor of Law, University of Mississippi School of Law/BBA 2023, Banking and Finance, University of Mississippi
• Pages: 1-29

ARTICLES

Control, Creators, and Content: The Past, Present,

and Future of Diversity in Media Ownership

SUSAN H. DUNCAN* AND EMELIA O’NEILL**

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. THE PAST: OFFICE OF COMMUNICATION OF THE UNITED CHURCH OF

CHRIST V. FEDERAL COMMUNICATIONS COMMISSION . . . . . . . . . . . . . . . 3

A. WLBT’S Racial Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. The FCC’s Pattern of Inaction . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Standing of Private Citizens in FCC Proceedings Challenged . . . . 6

D. FCC Holds Hearing Post Remand . . . . . . . . . . . . . . . . . . . . . . 7

E. Nexus Exists Between Diverse Owners, Diverse Personnel, and

Diverse Viewpoints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II. THE PRESENT: FCC V. PROMETHEUS RADIO PROJECT . . . . . . . . . . . . . . 10

III. THE FUTURE: SUGGESTIONS FOR A PATH FORWARD . . . . . . . . . . . . . . . . 16

A. Calls to Diversify the Media . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. Understanding the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C. Solutions for Removing the Barriers . . . . . . . . . . . . . . . . . . . . . 20

1. Remove Regulatory Barriers . . . . . . . . . . . . . . . . . . . . . . 20

a. Restrictions on upgrading inferior signals . . . . . . . . . . . 21

b. Regulation of FM Translator Program Origination . . . . 21

* Dean and Professor of Law, University of Mississippi School of Law.

** BBA 2023, Banking and Finance, University of Mississippi. The authors wish to thank Dean Deborah

Wenger and Professor Marquita Smith, School of Journalism at the University of Mississippi; Ajit Pai, Former

FCC Chairman; Diane Sutter, President/CEO ShootingStar Broadcasting; Michelle Dukes, President National

Association of Broadcasters Foundation for generously giving of their time, expertise, and wisdom to speak with us

about this article. A special thank you goes to Professor Kris Gilliland, Director of the University of Mississippi

Law Library, for her helpful edits and University of Mississippi School of Law Professors Ronald Rychlak, Stacey

Lantagne, and Will Berry for their helpful ideas. © 2023, Susan H. Duncan and Emilia O’Neill.

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2. Create Mentoring and Networking Opportunities . . . . . . 21

3. Provide More Financial Resources. . . . . . . . . . . . . . . . . . 24

4. Produce More Research and Transparent Reporting . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

INTRODUCTION

Free Press, in its recent initiative, Media 2070, asserts that diversity of media owner-

ship must occur in addition to other reparations to address the “anti-black racism [that]

has always been part of our media system’s DNA.”

1

JOSEPH TORRES ET AL., FREE PRESS, MEDIA 2070: AN INVITATION TO DREAM UP MEDIA

REPARATIONS 9, 50-55, https://mediareparations.org/wp-content/uploads/2020/10/media-2070.pdf (last

visited Nov. 4, 2022).

Federal Communications

Commission (FCC) Chair Jessica Rosenworcel underscored this observation upon the

release of the agency’s Fifth Biennial Ownership Report in September 2021. She noted:

Today’s report provides data from 2019 that reflect the state of broadcast owner-

ship in the United States. As has been the case for too long, this data makes clear

that women and people of color are underrepresented in license ownership. This

requires attention because what we see and hear over the public airwaves says so

much about who we are as individuals, as communities, and as a Nation.

2

Press Release, FCC, Statement of Acting Chairwoman Jessica Rosenworcel on Release of the Fifth

Biennial Ownership Report (Sep. 3, 2021), https://www.fcc.gov/document/rosenworcel-release-fifth-

biennial-ownership-report.

This paper begins by exploring two court cases, separated by fifty-two years,

that both address media ownership and the FCC’s related actions. The first of these

cases, the Office of Communication of the United Church of Christ v. Federal

Communications Commission, remains a landmark precedent, being the first case to

allow media consumers to directly participate in FCC proceedings.

3

A group of pri-

vate citizens challenged, and the appeals court overturned, the FCC’s renewal of a

license for a Mississippi television station that broadcasted openly discriminatory

programming and coverage during the civil rights movement in a market primarily

composed of African Americans.

4

In contrast, in the second case, FCC v. Prometheus

Radio Project, the United States Supreme Court sided with the FCC and upheld its

relaxing of restrictions to the local ownership rules despite its use of imperfect data to

determine whether those changes would negatively impact women and minority

ownership.

5

The cases illustrate how starkly different the FCC and the courts analyze

the nexus between media ownership and their consumers’ exposure to diversity of

1.

2.

3. Off. Commc’n United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966); Off. Commc’n

United Church of Christ v. FCC, 425 F.2d 543 (D.C. Cir. 1969).

4. Off. Commc’n United Church of Christ, 359 F.2d at 994; Off. Commc’n United Church of Christ, 425

F.2d at 543.

5. Federal Communications Commission v. Prometheus Radio Project, 141 S.Ct. 1150 (2021). This case

will likely have broad implications not only for the media, but also emerging consumer and environmentalist

movements.

2 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 14:1