new FCC rules on cross-ownership, which inevitably will mean
further media consolidation, have their detractors—some of
whom may take their case to court
By Dan Levine
Hartford Courant treated its readers to a particularly
crafty editorial on April 28, arguing that the Federal Communications
Commission should abandon its restrictive rules on media cross-ownership
because—get this—they violate the right to free speech.
Six paragraphs into its missive, the nation’s oldest continuously
published daily decided to acknowledge its own stake in the
upcoming FCC vote.
newspaper is part of Tribune Co., which owns 26 television
stations across the country. In addition to the Courant,
Tribune’s Connecticut portfolio is made up of WTIC, Channel
61; WTXX, Channel 20; the Advocate weekly newspapers;
the dailies in Stamford and Greenwich; ctnow.com; and ValuMail,
a direct-mail business,” they wrote.
Indeed, the Tribune Company’s business model is most apparent
in Connecticut: Prior to June 2, Tribune violated FCC rules
twice over by owning two TV stations and a daily newspaper
in the Hartford market, escaping divestiture only through
a federal waiver. Nationally, the Tribune Company is regarded
as one of the main corporate lobbyists trying to crash the
media regulatory system, along with Gannett Newspapers and
the New York Times Company.
They’re succeeding. The FCC followed its orthodox pro-deregulation
chairman Michael Powell and voted 3-to-2 on June 2 to rescind
prohibitions on companies owning a newspaper and TV station
in the same market, along with expanding the number of TV
stations a company is allowed to own nationally.
Now those Tribune waivers in Connecticut are no longer necessary,
and the company can export its “synergy” revolution to other
markets. Far from a victory for free speech, grassroots activists
and their political allies expect a wave of media mergers
and acquisitions, cutting down the quantity of voices in the
marketplace and the number of reporters scrutinizing power.
But if Tribune’s “Connecticut portfolio” is the logical outcome
of Powell’s corporate-friendly brew, perhaps an antidote can
be glimpsed in the same state. During the FCC proceedings,
Connecticut Attorney General Richard Blumenthal, a Democrat,
filed a brief in which he indicates the fight against media
consolidation may move away from the FCC and Congress and
into the courtroom. “Repeal of these rules would be a disservice
to the nation and could require the attorneys general of individual
states and other antitrust enforcement officials, to attempt
to fill the void . . . through costly and time-consuming processes,
including litigation,” Blumenthal wrote.
Imagine, an antitrust suit against the likes of Tribune, brought
by a phalanx of attorneys general, reminiscent of the legal
wars against Microsoft (in which Blumenthal participated).
At this point, Blumenthal says he has not decided to move
against any company, including Tribune. But his rumblings
have media activists across the country listening. “I think
it’s a very important avenue to pursue,” says Robert McChesney,
a University of Illinois professor and coauthor of It’s
the Media, Stupid. “Antitrust provisions have really deteriorated
in their vitality in the last two decades. But the law hasn’t
changed—it’s the way it has been enforced and interpreted
that is much more business friendly.”
Though a mega-lawsuit in the name of media diversity is enticing,
victory would be far from certain, according to antitrust
attorneys, as the path from violating the former FCC cross-ownership
rules to illegal monopoly is not a smooth one. Just because
a company owns a daily newspaper, an alternative-weekly chain
and two TV stations in a single geographic market—and just
because that cross- ownership stifles the diversity of news
available to consumers—doesn’t mean the company will meet
the criteria of a monopoly that restricts trade.
Antitrust violations hinge on how attorneys define a particular
competitive market, says Phil Weiser, an associate professor
of telecommunications and law at the University of Colorado
Law School. So if the defined market is newspapers, other
properties like TV stations would be irrelevant in proving
illegal market fixing.
Blumenthal acknowledges the difficulties. “Antitrust cases
are far more complex and challenging than enforcement of cross-ownership
rules, even though they seek to protect many of the same values,”
Another problem is political. Just how likely is it that Blumenthal
can challenge a dominant media power and survive to tell the
tale? “The chances a state attorney general would take this
kind of case,” McChesney says, “are about the same chances
I would win the NBA slam dunk contest.”
But Blumenthal isn’t the only politician with antitrust on
the brain. On May 21, Sen. Herb Kohl, a Democrat from Wisconsin,
raised the issue in a Judiciary Committee confirmation hearing
for Hew Pate, the Department of Justice’s new antitrust chief.
Kohl asked Pate for his views on the DOJ intervening in media
mergers to protect diversity of voices, with Sen. Patrick
Leahy (D-Vt.) concurring. Competitive factors, not diversity
factors, would drive any DOJ decisions, Pate responded.
Still, as the FCC moves along on its crusade, an antitrust
suit becomes, in Weiser’s words, a “very credible threat.”