Architectural Censorship and the FCC
Christopher S. Yoo
University of Pennsylvania Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science
Vanderbilt Public Law Research Paper No. 04-10; Vanderbilt Law and Economics Research Paper No. 04-15
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.
Number of Pages in PDF File: 64
Keywords: Telecommunications and Regulated Industries, antitrust, constitutional law
JEL Classification: K21, L96
Date posted: June 16, 2005
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