The Constitutional Flaws of the Telecommunications Scheme
The Core Argument
The core of the argument challenging the constitutionality of the Telecommunications statutes and the structure of the media industry concerns the First Amendment and the concept of Democracy embodied in the Constitution. America's fundamental notion of democracy as enunciated in the Constitution rests upon the principle of self-governance. The opening phrase of the Preamble to the Constitution, "We the people...,"4 tells us who is the governing force set up by that document. In McCullach v. Maryland, 4 Wheat. 316, 403 (1819), C.J. Marshall noted that the Preamble reflects the fact that the Constitution emanated from the people and was not the act of any sovereign.5 In addition, the Tenth Amendment speaks of powers reserved to the people and Article I, Sec. 2 refers to a reserved power which the people have decided to exercise by providing for the election of members to the House of Representatives. It is the people who decide who shall be their agents to carry out the selfgovernance principle that the people provided for in the Constitution.
This fundamental concept of self-governance has not been rejected, rather it has been recognized as the bedrock of our Constitution. In the seminal case of New York Times v. Sullivan,6 Justice Brennan wrote in 1964 regarding the Framers' approach to the nature of the government created by the Constitution:
[Madison's] premise was that the Constitution created a form of government under which "The people, not the government, possess the absolute sovereignty." The structure of the government dispersed power in reflection of the people's distrust of concentrated power, and of power itself at all levels...!. "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the government, and not in the Government over the people.7 (emphasis supplied)
In explaining the Court's view of the First Amendment as presented in New York Times v. Sullivan, Justice Brennan wrote a year later that the result did not rest on the "clear and present danger," "redeeming social value" or "balancing" approach.8 Rather, "the Court examined history to discern the central meaning of the First Amendment, and concluded that that meaning was revealed in Madison's statement '"that the censorial power is in the people over the Government, and not the Government over the people.'"9
In order to assure that the principle of democracy provided by the Constitution would work in practice the First Amendment was adopted - with some struggle and much debate. The ultimate role of the First Amendment's declaration that "Congress shall make no law... abridging the freedom of speech, or of the press"10 is to secure the diversity of information and viewpoints necessary for the people's self-governance.11 The Courts have recognized the role of the First Amendment in securing diversity necessary to a democratic system. In Associated Press v. U.S.,12 the Court stated:
[The First] Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private parties.13 (emphasis supplied)
In the 1994 decision in Turner Broadcasting Sys., Inc. v. FCC,14 the Supreme Court stated in words of particular relevance today, the following:
The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas.15
In Main Road v. Aytch,16 the Court of Appeals for the Third Circuit described how the First Amendment requires the government to assure diversity in the avenues of communication:
A fundamental purpose of the First Amendment is to foreclose governmental control or manipulation of the sentiments uttered to the public. With only carefully calibrated exceptions, 'the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.' Therefore, when the government makes an avenue of communication available to the proponent of some views, the same opportunity must, absent exceptional circumstances, be afforded to others who wish to express their ideas in that manner, whether or not the governmental officials endorse or sanction the thoughts to be expressed.17 (citation omitted)
Significantly, even the House of Representatives, in its Committee Report accompanying the 1984 Cable Act legislation, recognized the primary purpose of the First Amendment to present a wide diversity of information sources to the public. The Report states: "A requirement of reasonable third-party access to cable systems will mean a wide diversity of information sources for the public - the fundamental goal of the First Amendment."18
This analysis of the First Amendment and the scheme of self-governance as the basis of America's democracy, was examined and urged by the educator and scholar Alexander Meiklejohn. Justice William Brennan described Dr. Meiklejohn's argument:
He argued that the people created a form of government under which they granted only some powers to the federal and state instruments they established; they reserved very significant powers of government to themselves. This was because their basic decision was to govern themselves, rather than to be governed by others. This was a fundamental departure from the English and other existing forms of government and was this country's great contribution to the science of government. The first amendment, in his view, is the repository of these selfgoverning powers that, because they are exclusively reserved to the people, are by force of that amendment immune from regulation by the agencies, federal and state, that are established as the people's servants.19
To Dr. Meiklejohn, the meaning of freedom of speech, of the First Amendment, was "not [derived] from the natural or legal or constitutional rights of the individual, but from the necessities of self- government."20 Freedom of speech "is the right of the public to hear, read, and consider all possible points of view before making up its mind."21
The form of government, the nature of the democracy and of free speech provided by the Constitution was recognized by the Framers to be critically different from the English form of government. The difference is found in the self-governance principle. Leonard W. Levy, describes Madison's Report on the Virginia Resolution as highlighting this different theory of governance:
In England, with its hereditary and nonresponsible monarch, it was a maxim that the king can do no wrong, and Parliament, two thirds of whose membership was also hereditary and nonresponsible, claimed omnipotence. In America, however, the executive was not held to be infallible nor the legislature unlimited, and both, being elective, were responsible. Necessarily, therefore, a different degree of freedom of the press was contemplated by American constitution-makers. An elective, limited, and responsible government required a much greater freedom of animadversion that might be tolerated by such a government as that of Great Britain. And since the electoral process was the essence of a free and responsible government, a wide latitude for political criticism was indispensable to keep the electorate free, informed, and capable of making intelligent choices.22
In Robertson v. Baldwin,23 Justice Harlan explained:
The powers of the British Parliament furnish no test for the powers that may be exercised by the Congress of the United States. Referring to the difficulties confronting the Convention of 1787, which framed the present Constitution of the United States, and to the profound differences between the instrument framed by it and what is called the British Constitution, Mr. Bryce, an English writer of high authority, says in his admirable work on the American Commonwealth: "The British Parliament has always been, was then, and remains now, a sovereign and constituent assembly. It can make and unmake any and every law, change the form of government or the succession to the Crown, interfere with the court of justice, extinguish the most sacred private rights of the citizen. Between it and the people at large there is no legal distinction, because the whole plentitude of the people's rights and powers reside in it, just as if the whole nation were present within the chamber where it sits. In point of legal theory it is the nation, being the historical successor of the Folk Moot of our Teutonic forefathers. Both practically and legally, it is today the only and the efficient depository of the authority of the nation, and is therefore, within the sphere of law, irresponsible and omnipotent." Vol. 1, p. 32. No such powers have been given to or can be exercised by any legislative body organized under the American system. Absolute, arbitrary power exists nowhere in this free land. The authority for the exercise of power by the Congress of the United States must be found in the Constitution. Whatever it does in excess of the powers granted to it, or in violation of the injunctions of the supreme law of the land, is a nullity, and may be so treated by every person.24
In McCulloch v. Maryland, C.J. Marshall clearly described selfgovernance power of the people:
The government of the Union then . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.(4 Wheat. 316, 404-405).
Recent cases have recognized serious First Amendment concerns arising in an era where means of expression have become dominated by a few mega corporations which, under the federal regulatory scheme, may prevent or circumvent communicating diverse information, viewpoints or culture to the people. Thus, in Nat'l Citizens Committee for Broadcasting v. F.C.C.,25 the Court of Appeals for the District of Columbia stated:
The Commission has recognized that a policy of diversity is central to the Communications Act, and it has denied licenses to otherwise qualified applicants on the strength of that policy. Since denying access to the airwaves to some involves a substantial though at this time necessary, restriction of speech, it follows that the Commission acts properly when it attempts to promote diversity by allocating stations to those without control over an alternative major media voice. The Supreme Court has given its approval to a diversity policy based on First Amendment and antitrust considerations. The First Amendment "rest[s] on the assumption that the widest possible dissemination of information from diverse antagonistic sources is essential to the welfare of the public." "The public interest' standard necessarily invites reference to First Amendment principles."26 (Citations and footnotes omitted; emphasis supplied.)
That a narrowing of the diverse voices that can communicate over the mass media will impair the First Amendment was recognized by C.J. Bazelon when he described the enhancement of the First Amendment resulting from a broadening of those who are able to communicate their diverse information and views: "the First Amendment seeks to further the 'search for truth.'. . . Surely that search will be facilitated by government policy that encourages the maximum numbers of searches."27
In Turner Broadcasting Sys. Inc. v. FCC,28 the Supreme Court recognized the impact of private control of the media on "the free flow of information and ideas" and that the First Amendment, rather than shielding the media from government action, has an interest in preventing the private media from restricting the flow of information and ideas to the public.29 There, the Court stated:
[W]hen an individual subscribes to cable the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber's home. Hence, simply by virtue of its ownership of the essential pathway for cable speech, a cable operator can prevent its subscribers from obtaining access to programming it chooses to exclude. A cable operator, unlike speakers in other media, can thus silence the voice of competing speakers with a mere flick of the switch.30
Court decisions have pointed to the critical connection between diversity and the purpose of the First Amendment, even when that diversity will impinge upon the activities of the media operator. In FCC v. Natl. Citizens Comm. for Broadcasting,31 the Court found FCC regulations regarding licensing of newspaper combinations did not limit the flow of information but were aimed at enhancing the diversity of viewpoints received by the public.32 The Court stated:
The physical limitations of the broadcast spectrum are well known. Because of problems of interference between broadcast signals, a finite number of frequencies can be used productively; this number is far exceeded by the number of persons wishing to broadcast to the public. In light of this physical scarcity, Government allocation and regulation of broadcast frequencies are essential, as we have often recognized... No one here questions the need for such allocation and regulation, and, given that need, we see nothing in the First Amendment to prevent the Commission from allocating licenses so as to promote the "public interest" in diversification of the mass communication media.33 (emphasis supplied )
Individual Justices of the Supreme Court have emphasized the importance of the First Amendment in protecting the public's right to receive information to assure an informed citizenry necessary for selfgovernance. In Houchins v. KOED, Inc.,34 Justice Stevens, dissenting, wrote:
The preservation of a full and free flow of information to the general public has long been recognized as a core objective of the First Amendment to the Constitution. It is for this reason that the First Amendment protects not only the dissemination but also the receipt of information and ideas...!. In addition to safeguarding the right of one individual to receive what another elects to communicate, the First Amendment serves an essential societal function. Our system of self-government assumes the existence of an informed citizenry.35 (Citations omitted.)
In Saxbe v. Washington Post Co.,36 Justice Powell, dissented:
"[P]ublic debate must not only be unfettered; it must also be informed. For that reason this Court has repeatedly stated that First Amendment concerns encompass the receipt of information and ideas as well as the right of free expression."37
In Telesat Cablevision, Inc. v. City of Riviera Beach,38 a district court found:
The public, educational, and governmental ("PEG") access requirements of the City's ordinance have been shown to be rationally related to a substantial government concern. The City has listed a variety of goals for the requirements, including: permitting fuller citizen participation in government by increasing information of government activities, encouraging the dissemination of diverse information, permitting the dissemination of information by public schools and universities to the communities in which they are located, and permitting access to the public for groups whose views might otherwise not be expressed due to limited financial resources or lack of popularity. Like the PEG channels, the requirement that cable operators provide free service to governmental buildings - schools, fire stations, police stations, and the like -- expand available sources of information, multiply the diversity of view points, and thus foster First Amendment interests.39 (emphasis supplied)
In Time Warner Entertainment Co. v. F.C.C.,40 the Court of Appeals for the District of Columbia discussed the relationship between concentration of the media industry and diversity.41 The court noted that in its earlier decision of Time Warner Entertainment Co. v. United States,42 it had concluded that "Congress had drawn reasonable inferences, based upon substantial evidence, that increases in the concentration of cable operators threatened diversity and competition in the cable industry."43 The court referred to the Supreme Court statement in the 1997 decision of Turner Broadcasting Systems, Inc. v. F.C.C., that: "We have identified a corresponding 'governmental purpose of the highest order' in ensuring public access to 'a multiplicity of information sources.'"44 The D.C. Circuit Court continued: "If this interest in diversity is to mean anything in this context, the government must be able to ensure that a programmer have at least two conduits through which it can reach the number of viewers needed for viability - independent of concerns over anti-competition conduct."45
Some fifty years ago, W.E.B. Du Bois described the impact of megacorporate control of the media on democracy and its relation to America's judicial and educational institutions, both critical to realizing the selfgovernance principle:
Mass capitalistic control of books and periodicals, news gathering and distribution, radio, cinema, and television has made the throttling of democracy possible and the distortion of education and failure of justice widespread. It can only be countered by public knowledge of what this government by propaganda is accomplishing and how.46
The 1996 Act and Its Relationship to Constitutional Democracy and the First Amendment
This analysis of democracy and free speech poses a serious constitutional challenge to the current structure and operations of the media telecommunications industry. Here is how it unfolds:
Based on the 1996 Telecommunications Act47 and, in particular S 202(h) of the Act, the Court of Appeals for the District of Columbia, in Fox Television Stations Inc. v. FCC,48 recently reexamined two of the FCC rules restricting ownership of television stations. Briefly those rules are: (1) NTSO Rule - National Television Station Ownership Rule under which an entity is prohibited from controlling television stations with the combined potential audience reach in excess of 35% of the TV households in the nation,49 and (2) CBCO Rule - Cable/Broadcast Cross-Ownership Rule which prohibits a cable television system from carrying the signal of any television broadcast station if the system owns a broadcast station in the same market.50 As to rule (1), the court did not vacate the NTSO rule but remanded it to the FCC to justify the Rule's retention.51 As to (2), the Cable/Broadcasting Cross-Ownership Rule, the court vacated the rule entirely.52
The D.C. Circuit Court found that while diversity is a permissible policy, the FCC did not provide an adequate basis for believing the Rules would in fact further diversification. 53 There are two major ironies in this decision which result in the strange conclusion that further mega-consolidation will increase free speech and press for the American public. This conclusion is based on the argument that consolidation will enable the owners of mass media to exercise their First Amendment rights more freely by having access to a wider public audience to which they can express their views. The first irony is that an increase in consolidation of the media/telecommunications industry does not mean more information will be conveyed to the public. To the contrary, it means that less diverse information will be given to the public. This happened in the commercial radio industry after deregulation of radio ownership rules in the 1996 Act. After deregulation, the number of owners of commercial radio stations declined from about 5,100 to 3,800, even though there are significantly more stations on the air.54 The increase of stations has been broadly publicized, but has that promoted a greater diversity of viewpoints, or cultures? Twenty-five stations each owned by a separate entity will present greater diversity than 100 stations all owned by the same corporation. Since acquisition of media outlets requires substantial monies it is highly predictable that the future will see less owners with more stations on the dial and those owners will be rich and white individuals of the western world.
The second irony is that, on the one hand, the First Amendment has been recognized as requiring diverse sources of information.55 On the other hand, the networks argued in the Fox Television case that the First Amendment was violated by the National Television Station Ownership Rule because it prevented them from reaching directly - through stations they own and operate - 65% of the potential television audience in the United States.56
The issues raised by the current structure of the media industry may be conflated into the question: To whom does the First Amendment belong? No one can seriously challenge the maxim that freedom of speech belongs to all of us -- to the public as a whole. How then to resolve a situation where the rights to receive certain information is precluded because another group has taken ownership of the means to communicate that information. Those deprived of the ability to receive the information claim their First Amendment rights are violated; those now owning the means of communication claim that their First Amendment rights allow them to determine how they will use the means of communication to disseminate what information.
Someday this issue will have to be resolved. Understanding the nature of the democracy created by the Constitution - self-governance requiring diverse sources of information - will help resolve this complex problem. Otherwise, we may find that the market economy has redefined democracy so as to eviscerate democracy and to destroy free speech. It is within this framework, this understanding of the Constitution and the Democracy that it constructed, that the present telecommunications structure and system will be tested and found to be unconstitutional.
Some fifty-five years ago in the celebrated work, A Free and Responsible Press, the Commission on Freedom of the Press (1947) ("Hutchins Commission") answered this question when it dramatically described the role of the media in communicating information needed by the public:
Our society needs an accurate, truthful account of the day's events. We need to know what goes on in our own locality, region, and nation. We need reliable information about all other countries. We need to supply other countries with such information about ourselves. We need a market place for the exchange of comment and criticism regarding public affairs. We need to reproduce on a gigantic scale the open argument which characterized the village gathering two centuries ago. We need to project across all groups, regions, and nations a picture of the constituent elements of the modern world. We need to clarify the aims and ideals of our community and every other.
These needs are not being met. The news is twisted by the emphasis on firstness, on the novel and sensational; by the personal interests of owners; and by pressure groups. Too much of the regular output of the press consists of a miscellaneous succession of stories and images which have no relation to the typical lives of real people anywhere. Too often the result is meaninglessness, flatness, distortion, and the perpetuation of misunderstanding among widely scattered groups whose only contact is through these media.
...When we look at the press as a whole, however, we must conclude that it is not meeting the needs of our society. The Commission believes that this failure of the press is the greatest danger to its freedom.57
Footnotes =========================
*LLB, (magna cum laude Harvard, 1954; BS Cornell 1951; partner, Morrison Cohen Singer & Weinstein, LLP; member, Media Democracy Legal Project; Commissioner, Citizens Commission on Human Rights, Intl.; counsel to Anthony B. Herbert in Herbert v. Lando, 441 U.S. 153 (1979). The author thanks Rachel Kafrisseny, a student at Cardoza Law School, for her valuable work on this article and in particular her substantial contribution to the research and writing of the "History Lesson" portion of the article.
[1] - The consolidation and monopolization of the media is not examined herein. It is assumed that the reader or agent is generally familiar with the pattern of comprehensive ownership and control of the media industry by six world-wide mega corporations - Time Warner-AOL, Disney (ABC), Viacom (CBS), News Corp. (Fox), General Electric (NBC) and Bertelsmann (Random House, Knopf, Doubleday, etc.). See e.g., DOUGLAS GOMERY, THE FCC'S NEWSPAPER - BROADCAST CROSS-OWNERSHIP RULE: AN ANALYSIS 10-11 (Economic Policy Institute, 2002) BEN H. BAGDIKIAN, THE MEDIA MONOPOLY et seq., Sixth Edition (Beacon Press 2000).
[2] - The media now includes a diverse variety of techniques which convey to the earth's population, information, viewpoints, values, consciousness and ideology. Through television, cable, motion pictures, radio, print, Internet and the growing satellite technology, media's reach is many times greater and more intense than ever before. See generally, Eric B. Easton, Annotating the News: Mitigating the Effects of Media Convergence and Consolidation, 23 U. ARK. LITTLE ROCK L. REV 143, 143 (2000).
[3] - The conversion from news to celebrity gossip has been enormous. A summary of 4000 stories in both print and broadcast media over 1977 to 1997 conducted by the Project for Excellence in Journalism revealed that celebrity gossip stories had expanded from 15 percent to 43 percent of the total. As described by Dr. Jerold M. Starr: "Americans, long starved for information about the Arab world, are now getting a crash course focused mainly on personalities, not background." Jerold M. Starr, Needed: An Independent Public Broadcasting Service, TOMPAINE.COMMON SENSE, Oct. 5, 2001, at
http://www.tompaine.com/feature.cfm/ID/4584.
[4] - In one of history's many contradictions the Framers took the phrase "We, the people" from the Iroquois Treaty of 1520, while at the same time the Constitutional scheme excluded Native Americans from political participation. BRUCE E. JOHANSEN, FORGOTTEN FOUNDERS (Bambit Inc. 1982).
[5] - Joseph Story wrote in his Commentaries regarding the Constitution's Preamble "Its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them." 1 Story, Commentaries on the Constitution, P 462.
[6] - 376 U.S. 254 (1964).
[7] - Id. at 274-75.
[8] - William J. Brennan Jr., The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 HARV. L. REV. 1, 14-15 (1965).
[9] - Id. at 15.
[10] - U.S. CONST. amend. I.
[11] - Prof. Cass Sunstein came to the same conclusion when he wrote the First Amendment's "historic purpose" has been to assure "the construction of a well-functioning system of democratic deliberation." Cass Sunstein, Is the First Amendment Obsolete, NATION, July 21, 1997, 15 quoted in ROBERT W. MCCHESNEY, RICHMEDIA POOR DEMOCRACY 269 (Union of Ill. Press 1999).
[12] - 326 U.S. 1 (1945).
[13] - Id. at 20 (emphasis added).
[14] - 512 U.S. 622 (1994).
[15] - Id. at 657.
[16] - 522 F.2d 1080 (3d Cir. 1975).
[17] - Id. at 1087 (explaining that First Amendment protection applies, without discrimination, to everyone and quoting Police Dep't of Chicago v. Mosely, 408 U.S. 92, 95 (1972)).
[18] - H.R. REP. NO. 934, at 19 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4656 (noting focus and goal of First Amendment).
[19] - Brennan, supra note 8, at 11-12 (discussing historical context of First Amendment and its relation to principle of self-government).
[20] - Laurent B. Frantz, Alexander Meiklejohn & The First Amendment, MEIKLEJOHN LIBRARY JOURNAL at 4.
[21] - Id.at 6.
[22] - LEONARD W. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY, 275 (the Belknap Press of Harvard Univ. Press 1960).
[23] - 165 U.S. 275 (1897).
[24] - Id. at 296 (Harlan, J., dissenting) (discussing limited powers of Congress and authority of American people compared to unlimited powers of British Parliament and few powers of its people) (citations omitted). The private rights provided in the Constitution were not novel principles; the political privileges -- the power of citizens to govern themselves as men had not governed themselves before -- were a "revolutionary transfer of authority." Alexander Meiklejohn, What Does The First Amendment Mean?, 20 UNIV. OF CHI. L. REV. 461, 478 (1953). It is the issue of authority that J. Harlan's dissent addresses.
[25] - 555 F.2d 938 (D.C. Cir. 1977).
[26] - Id. at 948-49 (discussing importance of diversity upon application of First Amendment). See Id. at 950-951 (noting purpose of First Amendment).
[27] - Id. at 950-951 (noting purpose of First Amendment).
[28] - 512 U.S. 622 (1994).
[29] - Id. at 656-57 (discussing effect of First Amendment on media and protections it affords).
[30] - Id. at 656-57 (explaining that cable providers have power to act as censors upon their subscribers and ability to restrict access of information and opinions).
[31] - 436 U.S. 775 (1978).
[32] - While presented as a Fifth Amendment Equal Protection case, the Court concluded a free speech component existed: the regulations were a reasonable means of promoting the public interest in diversified mass communications. Id. at 786, 795.
[33] - Id. at 799 (noting importance of government regulation in broadcast area and lack of constitutional provision prohibiting such regulation).
[34] - 438 U.S. 1 (1978).
[35] - Id. at 30-31 (Stevens, J., dissenting) (stressing value of First Amendment as tool for flow of information into society and distribution of various societal viewpoints).
[36] - 417 U.S. 843 (1974).
[37] - Id. at 862-63, (Powell, J., dissenting) (arguing First Amendment aids distribution and acquisition of information, which facilitates societal discussion).
[38] - 773 F. Supp. 383 (S.D. Fla. 1991).
[39] - Id. at 412. The particular and critical role of the First Amendment in securing for the public the diversity of viewpoints and information necessary for America's political system has been noted by the Supreme Court in a number of its decisions over the years. For example, the Court stated: "[T]hose guarantees [of speech and press] are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society." Time, Inc. v. Hill, 385 U.S. 374, 389 (1967). The Court has also stated the First Amendment protects "[t]he interest of the public in hearing all sides of a public issue." Bond v. Floyd, 385 U.S. 116, 136, (1966). In Stromberg v. California, the Court asserted the "maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." 283 U.S. 359, 369 (1931).
[40] - 240 F.3d 1126 (D.C. Cir. 2001).
[41] - Id. at 1130 (stressing need for diversity in media and possible lack of diversity with strength of certain entities).
[42] - 211 F.3d 1313 (D.C. Cir. 2000).
[43] - Time Warner, 240 F.3d at 1130 (granting deference to congressional findings of lack of competition in cable industry).
[44] - Id. at 1131; 520 U.S. 180, 190 (1997).
[45] - Time Warner, 240 F.3d at 1131-32 (D.C. Cir. 2001).
[46] - W.E.B. Du Bois, Negroes and the Crisis of Capitalism in the United States, 1953 MONTHLY REVIEW 478, 480.
[47] - Telecommunications Act of 1996, 110 Stat. 56 (1996). The 1996 Act was not centered on concern for free speech nor the necessity to secure a public policy in favor of diversity. As stated by Robert W. McChesney: "The overreaching purpose of the 1996 Telecommunications Act is to deregulate all communication industries and to permit the market, not public policy, to determine the course of the information highway and the communications system." ROBERT W. McCHESNEY, CORPORATE MEDIA AND THE THREAT TO DEMOCRACY 42 (Seven Stories Press 1997).
[48] - Fox Television Stations, Inc. v. F.C.C., 280 F.3d 1027 (D.C. Cir. 2002).
[49] - Id. at 1034. See Telecommunications, 47 C.F.R. S 73.3555 (e) (2002).
[50] - Fox Television, 280 F.3d at 1035. See Telecommunications, 47 C.F.R. S 76.501 (2002). This rule is subject to review on regular basis to determine its necessity as required by S 202 (h). Telecommunications Act of 1996, 110 Stat. 56, S 202 (h) (1996).
[51] - Fox Television, 280 F.3d at 1048-9 (identifying rule as arbitrary and capricious, but refusing to vacate, because risk of disruption is low).
[52] - Id. at 1053 (declaring FCC could find no justification compelling enough to uphold Rule).
[53] - The Court's approach appears to reflect the view that, while permissible, diversity is not a policy mandated by the Constitution and the First Amendment. This conflicts with the analysis that the First Amendment's role is to secure the diversity of information and viewpoints necessary for self-governance. See id. at 1045-7.
[54] - GOMERY, supra note 1, at 12 (examining effects of deregulation of media entities).
[55] - As stated by the Supreme Court, the Amendment's assumption is that "the widest possible dissemination of information from diverse antagonistic sources is essential to the welfare of the public." Associated Press v. United States, 326 U.S. 1, 20 (1944). As stated by FCC Commissioner Gloria Tristani, "a diversity of information sources - is essential to the functioning of our democratic form of government." Gloria Tristani, Departure Statement (Sept.7, 2001) at
http://www.fcc.gov/Speeches/Tristani/Statements/2001/stgt154.txt.
[56] - The court rejected the network's argument stating that "Congress could reasonably determine that a more diversified ownership of television stations would likely lead to the presentation of more diverse points of view." The impact of this conclusion on the mandate of the First Amendment and diversity was not further considered by the Court. Fox Television, 280 F.3d at 1047.
[57] - A FREE AND RESPONSIBLE PRESS, 67-68 the Commission on Freedom of the Press (1947) ("Hutchins Commission").
