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Architectural Censorship and the FCC
TL;DR: Yoo et al. as discussed by the authors employed economic analysis to demonstrate how structural regulation represents a form of architectural censorship that has the unintended consequence of reducing the quantity, quality, and diversity of media content.
Abstract: Most First Amendment analyses of U.S. media policy have focused predominantly on behavioral regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children's educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by structural regulation, which focuses primarily on increasing the economic competitiveness of the media industries. In this symposium contribution, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation represents a form of architectural censorship that has the unintended consequence of reducing the quantity, quality, and diversity of media content. The specific examples analyzed include: (1) efforts to foster and preserve free television and radio, (2) rate regulation of cable television, (3) horizontal restrictions on the number of outlets one entity can own in a local market, and (4) regulations limiting vertical integration in television and radio. Unfortunately, current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny. As a result, Congress and the FCC must bear the primary responsibility for safeguarding free speech values against these dangers.
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01 Jan 2007
TL;DR: The authors explores the mechanisms by which hyperlink may both facilitate and impede the massification process and offers conclusions regarding if and how the dynamics of linking may affect the process of media evolution.
Abstract: Research on media technologies frequently has illustrated the tendency for new media to adopt the structural and content characteristics of established mass media. This historical pattern is the outgrowth of a confluence of a wide range of economic and institutional forces. This paper considers the impact of hyperlinking within this process of “massification.” This paper explores the mechanisms by which hyperlinking may both facilitate and impede this process and offers conclusions regarding if and how the dynamics of linking may affect the process of media evolution.
10 citations
01 Jan 2006
8 citations
Cites background from "Architectural Censorship and the FC..."
...When Reagan-era FCC Chairman Mark Fowler articulated his regulatory philosophy that “the public’s interest . . . defines the public interest” (Fowler & Brenner, 1982, p. 4), he was articulating a philosophy that placed issues of the perceived quality of media content outside of the FCC’s zone of concern, with consumer choice and market forces dictating completely the nature of the content available.15 There has, however, been something of a pendulum swing, and today, many media policy concerns, such as media ownership, cable a la carte, and indecency, are in fact at least partially motivated by concerns over the quality of the content provided by the media system and whether there are mechanisms for improving the quality of content available, while avoiding overt, somewhat paternalistic, content requirements likely to run afoul of the First Amendment (see Yoo, 2005)....
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...Access to the press – a new First Amendment right....
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...Similar First Amendment tensions characterize the more secondary access rights that have permeated media policy, including a right of access to the means of communication (Barron, 1967; Horwood, 1995), and, related to this, a right of access to audiences (Napoli & Sybblis, in press)....
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...Access to audiences as a First Amendment right: Its relevance and implications for electronic media policy....
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...All of these access objectives that have characterized media policy are outgrowths of the ideals inherent in the First Amendment....
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TL;DR: A framing analysis was performed on 22 local news reports identified in 90 newscasts carried by television stations covering the Federal Communications Commission's (FCC) public hearings on media ownership held in Harrisburg, PA and Tampa, FL in 2007 as mentioned in this paper.
Abstract: A framing analysis was performed on 22 local news reports identified in 90 newscasts carried by television stations covering the Federal Communications Commission's (FCC) public hearings on media ownership held in Harrisburg, PA and Tampa, FL in 2007. It revealed two frames: one portraying the hearings as “unimportant” and another suggesting that “media consolidation is not a problem.” Taking into account that the stations are owned by non-local media conglomerates, the findings of this study imply that maintaining broadcasters independent of the networks serves the diversity of viewpoints in a market, especially regarding issues in which media conglomerates have a vested interest.
6 citations
TL;DR: Wu et al. as discussed by the authors proposed a separation principle for the information economy, which would segregate information providers into three buckets, which they have labeled information creators, information distributors, and hardware makers.
Abstract: Are information sectors sufficiently different from other sectors of the economy such that more stringent antitrust standards should be applied to them preemptively? Columbia Law School professor Tim Wu responds in the affirmative in his book The Master Switch: The Rise and Fall of Information Empires. Wu proposes preventing vertical mergers in the information economy and the mandatory divestiture of vertically integrated companies. To implement this, Wu proposes a Separations Principle for the information economy, which would segregate information providers into three buckets, which we have labeled information creators, information distributors, and hardware makers. This article outlines Wu’s separations proposal, explains why his fears regarding vertical relationships should be rejected by regulatory and antitrust policymakers, and illustrates the legal and practical problems his Separations Principle poses. Wu justifies his Separations Principle by citing monopolies and market power in the information economy. He also advocates using U.S. antitrust authorities to enforce his Principle. We argue that the antitrust harms he fears are not present, and we highlight scholarship on the accepted benefits of vertically integrated firms. We show that Wu’s remedies are policy preferences wrapped in the language of competition law. In fact, the information economy is largely competitive and does not warrant interventionist regulatory enforcement. Since much of American economic vitality flows from the information economy and technology, policymakers should reject a radical antitrust remedy like Wu’s preemptive Separations Principle.
6 citations
TL;DR: One of the most controversial issues among legal academics is the extent to which constitutional interpretation should adjust to refl ect contemporary values as discussed by the authors, which has been a hot topic among legal scholars.
Abstract: One of the most controversial issues among legal academics is the extent to which constitutional interpretation should adjust to refl ect contemporary values. On the one hand, constitutions are often lauded for their relative insulation from contemporary politics and for their
ability to embody fundamental commitments that do not change with the public opinion of
the moment. On the other hand, proponents of a living constitution emphasize how much
society’s moral commitments have changed over time and point out the diffi culties that can
arise if constitutional principles are not permitted to evolve in response.
3 citations
References
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TL;DR: In this paper, the authors investigate price discrimination in free-entry, zero-profit markets and show that when brands are heterogeneous, competition does not prevent discrimination and that the power to earn economic profits is not necessary for a firm to maintain discriminatory prices.
Abstract: Using a spatial model of monopolistic competition, we investigate price discrimination in free-entry, zero-profit markets. We show that when brands are heterogeneous, competition does not prevent discrimination. The power to earn economic profits is not necessary for a firm to maintain discriminatory prices. Our model treats formally the fact that consumers difer not only in the utility they derive from a good, but also in how strongly they prefer one brand over all others. In markets where firms are very competitive, sorting consumers on the strength on brand preference produces larger price differentials between groups than sorting on the basis of consumers' reservation prices for the good. When firms sort customers on the basis of strength of brand preference, however, we find that the output and welfare effects are generally less favorable than when sorting is more closely related to consumers' reservation prices.
285 citations
TL;DR: In this paper, the authors generalize a model of monopolistic competition attributable to Spence (1976) and find that the market may produce excessive diversity when product differentiation is weak relative to scale economies of production.
Abstract: This paper generalizes a model of monopolistic competition attributable to Spence (1976). Firms produce symmetrically differentiated products with declining or U-shaped average costs. Free entry drives profits to zero in equilibrium. Spence finds that when firms behave "competitively," in a specific sense, the market equilibrium yields too little product diversity. However, when Spence' s "competitive" behavioral assumption is relaxed, we find that the market may produce excessive diversity; this occurs when product differentiation is weak relative to scale economies of production. We also study two second-best regulatory policies and characterize conditions under which they are potentially effective in improving the market outcome. [Авторский текст]
70 citations
24 citations
Posted Content•
TL;DR: The concept of judicial review of the constitutionality of state and federal statutes by the Supreme Court is generally rested upon the epic decision in Marbury v. Madison as mentioned in this paper, and controversies which have surrounded the exercise of this power by the US Supreme Court require a periodic reexamination of the concept at its source, the Marbury opinion.
Abstract: The concept of judicial review of the constitutionality of state and federal statutes by the Supreme Court is generally rested upon the epic decision in Marbury v. Madison. The controversies which have surrounded the exercise of this power by the Supreme Court require a periodic reexamination of the concept of judicial review at its source, the Marbury opinion. This article proceeds by examining the historical context in which the case arose and analyzes the opinion in terms of various alternative approaches which might have been utilized by Chief Justice Marshall. The specific holding of the case is isolated in contrast to later interpretation given it, and a collection of relevant historical materials is presented to lend insight into the constitutional viewpoints of the period.
24 citations
TL;DR: In this paper, the authors argue that broadcast frequencies are a scarce resource, i.e., there are more individuals who want to broadcast than there are frequencies available, and they find a doctrinal basis for broadcasting regulation under the Court's public forum doctrine.
Abstract: For years broadcast stations have been subject to a range of government regulation that calls on them to act as public trustees of the airwaves. The Supreme Court has upheld this regulatory regime under the First Amendment primarily on the grounds that broadcast frequencies are a scarce resource, i.e., there are more individuals who want to broadcast than there are frequencies available. But scholars have long criticized this rationale for giving broadcasters a lower level of First Amendment protection than other media, which similarly rely on scarce resources. This Article seeks to go beyond the scarcity rationale and place broadcast regulation on firmer First Amendment footing. It finds a doctrinal basis for upholding broadcast regulation under the Court's public forum doctrine. It then explores two theoretical justifications for this result. The first derives from a view of the First Amendment that permits the government to take an active role in ensuring a robust and open debate on public issues. The second involves a quid pro quo
16 citations