Antitrust Law and Mass Media Regulation: Can Merger Standards Protect the Public Interest?

Abstract

Two distinct views of the public interest objectives of American communications policy underlie the debate over deregulation of media ownership in the United States. Advocates of deregulation typically view the public interest through an efficiency-oriented model. In that model the policy goal is to promote competition that will lead media companies to better satisfy consumers' preferences. Opponents of deregulation typically view the public interest through a democracy model. In that model the policy goal is to preserve media access opportunities for diverse voices and to promote informed public discussion of important issues. These distinct formulations of the public interest lead to divergent opinions about the need for ownership rules and the consequences should the Federal Communications Commission (FCC), Congress, and the courts leave media concentration to be controlled by general antitrust law. This Article discusses the competing models of the public interest and examines the FCC's ownership rules in light of those models. The paper then assesses the likelihood that antitrust enforcement would achieve the FCC's public interest objectives in a deregulated environment. The analysis concludes that in media markets antitrust is unlikely to further the FCC's democracy objectives and also faces serious obstacles to protecting even the economic, efficiency-oriented public interest objectives that are much closer to antitrust law's core purpose. Those challenges of protecting the public interest in media markets through antitrust should spark a forthright debate about what the objectives for mass media policy will be in a deregulated environment and cause policy officials to consider improving antitrust or developing other ways to achieve those objectives.

Keywords: Antitrust, Merger, Public Interest, Mass Media

JEL Classification: L40, L96