Overwhelmed by big consolidation: bringing back regulation to increase diversity in programming that serves minority audiences.

• Author: Austin, Caridad

1. INTRODUCTION II. HISTORY OF DIVERSITY AND CONSOLIDATION IN THE MEDIA A. Early Notions and Development of Diversity B. Metro Broadcasting, Inc. v. Federal Communications Commission and the Following Stagnation of Minority Ownership C. Furthering Consolidation: The Telecommunications Act of 1996 and the FCC 2003 Report and Order D. Backlash to FCC Actions: Prometheus Radio Project v. Federal Communications Commission III. THE FUTURE OF DIVERSITY IN THE MEDIA A. Should We Have Diversity in Ownership of the Media? B. Could the Internet Serve As a Substitute for Diverse Programming? C. Bringing Back Regulation and Implications of the Fairness Doctrine IV. CONCLUSION I. INTRODUCTION

   The president of a national organization advocating for more diverse role models in programming once joked, "[T]here actually have been studies showing there are more extraterrestrials on television than Latinos." (1) Although intended as a humorous representation of the lack of minorities in American media, the statement demonstrates the harsh reality that the media industry often ignores its minority audience. With the deregulation of media in the 1980s, 1990s, and 2000s, the unprecedented consolidation of American media has narrowed the ability of minority and nonminority audiences to obtain diverse programming. (2) While the FCC has tried addressing this problem by promoting its policy of expanding minority ownership of the media, (3) heavy deregulation in the last three decades has resulted in "Big Media" companies consolidating their ownership across media; this consolidation has "threatened [] localism, diversity, and competition[,]" and has led to a considerable downsizing of local reporters, editors, and DJs who cater to cities and towns across America. (4)

   In an age where the next great technological advancement is just five minutes away, one might think American society has access to a plethora of information to make us a better-informed public with programming that appeals to a variety of individuals within the American public. However, with a few Big Media companies controlling all facets of communication such as radio, television, cable, newspapers, and the Internet, we are reading and seeing recycled stories that cater to a majoritarian audience. (5) In order to progress as an inclusive society, we need diverse programming that exposes all audiences to different perspectives and not just to that of a nonminority demographic. Although there was hope that deregulating media ownership would result in an open communication marketplace that would optimize the number of viewpoints expressed in the media, (6) market forces by themselves have not been able to achieve this "idealized marketplace of ideas." (7)

   In order to obtain diversity in the media that is more reflective of our diverse population (8) and that does not neglect the minority audience, the FCC needs to bring back regulation rather than allow markets to dictate what best serves the public interest. Although the current policy of the FCC to promote minority ownership of the media as a way to achieve more diverse programming is an important policy, it is a policy that has not been easily achieved and is traditionally criticized for a lack of empirical evidence demonstrating a nexus between minority ownership and diverse programming. (9) The FCC should look beyond its focus on ownership regulation to regulations providing for diversified programming and lowering market control that dictates programming.

   This Note considers the current media ownership regulation scheme and provides possible solutions that will enhance programming that serves minority and nonminority audiences alike. Part II describes the historical development of diversity in the media through landmark cases, such as Metro Broadcasting, Inc. v. Federal Communications Commission, (10) and the consolidating effects of the Telecommunications Act of 1996 (11) and the FCC's 2003 Report and Order, (12) which yielded backlash from critics and the courts in Prometheus Radio Project v. Federal Communications Commission. (13) Part III analyzes the present discontent with programming that lacks diverse perspectives in the media and the shortage of alternatives despite technological growth. It proposes that bringing back a regulatory approach will increase the availability of diverse programming that is inclusive of minority audiences more so than the current market approach regime we have seen for the past three decades. Part IV concludes that the FCC needs to bring back regulation that continues minority ownership policies and introduces standards that require broadcasters to ascertain the needs of the communities they serve so that advertisers are not the sole dictators of programming.

2. HISTORY OF DIVERSITY AND CONSOLIDATION IN THE MEDIA

   1. Early Notions and Development of Diversity

      In the Communications Act of 1934, Congress granted the FCC the authority to grant broadcasting licenses based on "public convenience, interest, or necessity." (14) Diversity has since been viewed as one of the goals of the FCC as it exercises its authority over regulating media because an essential component of serving the public interest "has meant providing a diversity of viewpoints through the broadcast spectrum." (15) A major obstacle in the diversity discussion has been the inability of policymakers, scholars, the courts, or content providers to develop a universal definition of diversity due to the fact that regulating content conflicts with the First Amendment. (16) Therefore, policymakers often use "structural diversity, that is diversity of media ownership or diversity of producers," as a way to

      reach diversity in programming. (17)

      Diversity in the media has seen an evolution of different focuses based on the FCC's media policy. Three general concepts of diversity often utilized by the FCC are product diversity (referring to different program types), source diversity (referring to the ownership structure), and viewpoint diversity (referring to different perspectives concerning important issues). (18) Within traditional notions of source and viewpoint diversity, there has often been a concern about imposing the political and economic power of a single media owner onto the beliefs of voters. (19) Regardless of the number of characterizations of diversity, the main goal of diversity in the media is to provide more programming options containing multiple perspectives for all audiences to enjoy.

      Notions of diversity can be traced to the idea that communications media is a marketplace of ideas. In order to ensure that the marketplace of ideas flourishes in broadcast media, the government set ownership limits in its licensing process when granting broadcast frequencies to private parties. (20) Early licensing schemes attempted to limit problems, such as the monopolization of local media through common ownership of broadcast and newspapers, in order to allow greater access to viewpoints. (21) These principles were largely derived from the Fairness Doctrine. (22)

      The Fairness Doctrine was established in 1949 by the FCC (23) in order to "codify the principle that broadcast media should offer a range of viewpoints to ensure that a scarcity of broadcast licenses would not result in a lack of diversity in the marketplace of ideas." (24) Two prongs that developed out of the FCC Report that came to be known as the Fairness Doctrine required broadcasters "to devote a significant amount of time to coverage of issues of public importance, and ... to provide reasonably comparable exposure to significant contrasting viewpoints." (25) Although the Supreme Court upheld the Fairness Doctrine in Red Lion Broadcasting Co. v. Federal Communications Commission, (26) the Fairness Doctrine was criticized because of concerns that it led to censorship. (27)

      In the early 1980s, the FCC, spearheaded by President Reagan's appointee, Chairman Mark Fowler, reconsidered its position towards the Fairness Doctrine and it "urged Congress to repeal the Commission's statutory authority to impose fairness obligations and equal time duties upon federal licensees." (28) Since Congress did not respond to the proposal, the FCC "initiated a comprehensive review of the Fairness Doctrine[,]" and by 1985 it released a report that questioned the necessity of the Fairness Doctrine, which signaled the FCC's shift from a regulatory approach to a deregulatory market approach: (29)

      [W]e conclude that the fairness doctrine is no longer a necessary or appropriate means by which to effectuate [the public] interest. We believe that the interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today and that the intrusion by government into the content of programming occasioned by the enforcement of the doctrine unnecessarily restricts the journalistic freedom of broadcasters. Furthermore, we find that the fairness doctrine, in operation, actually inhibits the presentation of controversial issues of public importance to the detriment of the public and in degradation of the editorial prerogative of broadcast journalists. (30) Eventually in 1987, the Fairness Doctrine was repealed "after the U.S. Court of Appeals for the D.C. Circuit remanded a Fairness Doctrine case to the [FCC.]" (31) Although Congress attempted to reinstate the Fairness Doctrine, President Ronald Reagan vetoed the attempt, and the Fairness Doctrine has remained dead law. (32)

      Despite the rise and fall of the Fairness Doctrine, concerns for diversity in the media remained prominent and found growth in the 1960s during the civil rights era. A reform movement developed in the 1960s pushing the FCC to be more in tune with the public interest standard of the Communications Act of 1934 by encouraging broadcasters to air content that was important to minority audiences and to hire minorities to work at broadcast stations. (33) The lack of minorities in...