This guest post comes from Shadi Sedighzadeh, who is taking the Entertianment Law and Web 2.0 miniterm course at Southwestern Law School:
With the specter of media moguls controlling public discourse (including entertainment and other social diversions) via their commercial properties, legislators, justices and policy-makers long have sought to prevent the domination of broadcast markets across the country by the likes of William Randolph Hearst, Col. Robert McCormick or the legendary Chandler family of Los Angeles with cross-ownership laws and regulations. But with the rise of the Internet and the decline of the print medium, particularly newspapers, is it, even in the age of Rupert Murdoch, time to reconsider these measures, aimed at protecting access to the public resource of the airwaves? Three media-entertainment companies have thrust this question forward to the U.S. Supreme Court, which commentators have noted, has been on a First Amendment streak:
The Federal Communications Commission (FCC) regulates interstate and international communications by radio, television, wire, satellite and cable throughout the U.S. In 1978, in the case FCC v. National Citizen Committee for Broadcasting, the Supreme Court held that it was proper for the FCC, in 1975, to ban daily newspaper owners from also gaining broadcast ownership because of the need for diverse access to media and communications on the public airwaves. The Supreme Court decided to hear this case because it was an issue of Constitutional importance that effected people’s daily lives.
During this time, bandwidth was scarce and cross-ownership rules were believed to encourage wider ownership, particularly when newspapers and commercial television networks were the only forms of “mass media” for communication within a region. In an era before ubiquitous cable provision, even major markets like Los Angeles might have just a half dozen or so broadcast channels and a few newspapers to serve them.
So does the “scarcity” doctrine discussed in Red Lion Broadcasting Co. v. FCC merit reconsideration, now that there are hundreds of cable-satellite channels and the Internet allows for myriad web-based, and even mobile-accessible “publications?” And do those cross-ownership restrictions violate the First and Fifth Amendments because they single out newspapers and their owners among all forms of mass communication for unequal treatment. Newspapers, are now on the decline and they find themselves not only underdogs but even headed to bankruptcy and, for many, a speedy obsolescence.
These are some of the arguments the Supreme Court will confront in not one but three pending petitions from major media-entertainment corporations and a broadcasters’ group, all arguing that technological advances should trump the precedential logic of existing cross-ownership rules. Part of the latest legal moves likely will focus on the unsettled state of judicial reviews of recent FCC moves to alter its cross-ownership rules. And, while the justices may be swayed by the circumstances surrounding the current state of these enterprises, will they decide to even take up these cases given the unfolding cellphone hacking scandals in Britain, where a huge part of a public uproar there has focused on the very issue of consolidation of media and thereby political power in the person of global media titan Murdoch?