5
government policy on media ownership, but the theory always underlay the policy, and in recent
decades the word itself has become preeminent.
7
In spite of the long-standing concern over the concentration of ownership, the efficacy of
government interventions in American mass media area is hard to assess. It is difficult to know
whether and to what degree Justice Department or Federal Trade Commission antitrust actions or
FCC ownership rules safeguarded or promoted a free and diverse marketplace of ideas. A central
problem here is what is meant by diversity, and how we should assess it. Should we understand
by diversity the number of owners of media outlets? Or rather (perhaps in addition) by the
number of sources that provide content?
8
By the number of different perspectives conveyed in
information content? Or, to take the question out of the dimension of the purely informational
and political, by the number of distinct audience segments or demographics appealed to by
various content providers, a measure that examines program formats? By the varied racial
composition of a media outlet’s workforce?
7
In early broadcast regulation, for example, the diversity principle was embedded within the FCC’s
“public interest” mandate. The Federal Radio Commission interpreted the public interest obligations of
the broadcast licensee to be such “that the tastes, needs, and desires of all substantial groups among the
listening public should be met, in some fair proportion, by a well-rounded program…” In the Matter of
the Application of Great Lakes Broadcasting Co., 3 FRC Annual Report 32 (1929). In comparative hearings
for broadcast licenses, the FCC indicated that the diversification of control of the mass media is one of the
most important criteria in ranking applicants. Policy Statement, 1 FCC 2d 393 (1965).
8
Outlets and sources are interrelated, but they are not the same, as evidenced by the long struggle over
Financial Interest and Syndication Rules in television broadcasting. Those rules, which were in force
between 1970 and 1995, prohibited the television networks from owning shares of the firms that provided
their programming, with the expectation that the policy would expand the sources of program
production. Report and Order, 23 FCC 2d 382 (1970); rescinded, Network Financial Interest and
Syndication Rules, 60 Fed. Reg. 48,907 (Sept. 21, 1995). Similarly, the 1948 Paramount settlement required
the movie studios to divest themselves of movie theatres, thus restricting the vertical integration between
producer/distributors of motion pictures and their exhibition. United States v. Paramount Pictures, 334
U.S. 131 (1948). The separation was rescinded in U.S. v. Syufy Enterprises, 712 F. Supp. 1386 (N.D. Cal.
1989) aff’d 903 F2d 659 (9
th
Cir. 1990) on the logic that changes in technology warranted expansion of the
product market beyond first-run exhibition to include sub-run exhibition, as well as exhibition in ancillary
markets of home video, cable, and pay-per-view TV.
Convention