19
cannot be a simple surrogate for content, because the concern about ownership concentration in
media cannot rest just on possible economic harm and the ability to practice price discrimination;
the concern about media concentration focuses on the access to receive and produce information.
Hence any antitrust theory that focuses solely on market power over pricing will be too limited in
its consideration of the negative features of concentration.
34
Concentrated ownership in the
communications media yields diminished editorial voice, the decline of journalistic values,
diminution of the press’ watchdog function, reduction in the diversity of ideas, and, as a
consequence, thwarts democratic deliberation.
To some degree, the stark differences between these perspectives on media concentration
reflect a long-standing divergence among scholars and lawyers regarding the purpose of antitrust
laws, and, more generally, a market economics vs. social value perspective on communications
policy. Media mergers, like all industrial combinations, require scrutiny by the Department of
Justice and Federal Trade Commission. Section 7 of the Clayton Act requires the DOJ and FTC
to evaluate the anti-competitive ramifications of mergers, but also their potential efficiencies as
well in terms of bringing economies of scale, lower transaction costs, and technological
synergies, etc.
35
An exclusively economic focus on allocative efficiency, the society’s total
wealth, is fairly characteristic of the Chicago School approach to antitrust. The dominant
concern is that mergers should not be permitted “to create or enhance market power or to
facilitate its exercise” by enabling firms to “impose at least a ‘small but significant and
34
See Comments of Consumers Union, Consumer Federation of America, Civil Rights Forum, Center for
Digital Democracy, Leadership Conference on Civil Rights and Media Access Project in the Matter of
Cross-Ownership of Broadcast Stations and Newspaper (MM Docket No. 01-235); Newspaper/Radio
Cross-Ownership Waiver Policy, February 15, 2002, (MM Docket No. 96-197)
<http://www.mediaaccess.org/filings/consumers_union_et_al_nbco_comments.pdf />; C. Edwin Baker,
“Media Concentration: Giving Up on Democracy,” unpublished manuscript.
35
Ch. 323 section 7, 38 Stat. 730, 731-32 of 194l codified as amended at 15 U.S.C. section 18, 1994.
Convention