Abundant Media, Viewer Scarcity: A Marketplace Alternative to First Amendment Broadcast Rights and the Regulation of Televised Presidential Debates

Abstract

This Article develops a theory for evaluating the First Amendment rights of broadcast television networks using the market power tests employed in antitrust economics. The Article begins by observing the importance of the candidate debates during the 2000 presidential election. The importance of the presidential debates, however, might soon prove insufficient to surmount the costs of network broadcasting. In the past decade, broadcast networks have watched viewers depart in record numbers, lured away by new technology and an ever-increasing array of media alternatives. Television networks have long questioned their role as guardians of the public interest and during the 2000 election, two networks refused to air the first of the presidential debates. With no end to network troubles in sight, the 2004 elections could lack any unified television coverage. Preserving the historic importance of the televised presidential debates will require the courts to confront the foundation of broadcast regulation in the United States and the doctrine of spectrum scarcity used to justify broadcast monopoly power. Scarcity theories, long criticized as economically inefficient, have now been attacked as scientifically flawed and incompatible with the new digital world. Today, many argue that increased competition in broadcast media provides a better guarantee of the public interest than intrusive government oversight. Trusting the market, however, might ignore the unequal access to new broadcast technologies and trap large numbers of the American electorate behind the digital divide. A solution to the chaos of the First Amendment rights of broadcasters is necessary and available in the same economic analysis that supports the criticism of the current state of the law. Using the reasoning of the Supreme Court's two most recent First Amendment broadcasting decisions, Reno v. ACLU and Turner Broadcasting System, Inc. v. FCC, this Article suggests that the First Amendment rights of broadcasters should be determined by the market power of their broadcast content. Market power provides a dividing line between the scarce media of broadcast television and the plentiful resources of the digital spectrum. Full First Amendment protections for only converged broadcast media will retain administrative regulation over lagging technologies while inducing broadcasters to speed the development of broadband. This Article then applies this new standard of review to a model broadcast debate regulation compelling the networks to provide live coverage of the general presidential debates. Despite the emerging alternatives to broadcast television and the competing sources of campaign information, the Article concludes that televised coverage of the general presidential debates comprises a single content market concentrated among the broadcast networks. Technological advancements might soon transform our understanding of broadcasting. Until then, this Article concludes that federal oversight of the televised presidential debates is an appropriate and necessary limitation on the First Amendment rights of networks.