Dysregulating the Media: The Unintentional Deregulation of American Media

Abstract

Netflix, Amazon, YouTube, and Apple have been joined by Disney+, Twitch, Facebook and others to supplant the broadcast industry. As the FCC, FTC, and other regulators struggle, a new digital divide has emerged. The current regulatory regime for television is built upon the government’s right to manage over-the-air broadcasting. As content producers shift away from broadcast and cable, much of the government’s regulatory control will end, resulting in new consequences for public policy and new challenges involving privacy, advertising, and antitrust law.

Despite the technological change, there are compelling government interests in a healthy media environment. This article explores the constitutionally valid approaches available to promote the public interest of diversity of viewpoint, assure access to news, educational content, and cultural content for those without the financial resources to buy broadband access, and protect from the heightened risks to personal privacy. The article calls upon the FTC to become the lead regulator, enforcing the Sherman Act, Clayton Act, and the FTC Act’s provisions to assure that competition, online advertising, customer privacy, and the public interest are rigorously enforced.

Keywords: Netflix, Amazon, YouTube, Apple, Disney Plus, FCC, FTC, Over-the-top, OTT, Sherman Act, Clayton Act, FTC Act, privacy, public interest, broadcast, regulation

JEL Classification: K00, K20, K21, K23, K29, K42, L12, L13, L24, L41, L42, L43, L44, L82, L86, M37, M38