Broadcast Technology as Diversity Opportunity: Exchanging Market Power for Multiplexed Signal Set- Asides

I. INTRODUCTION: PUBLIC ACCESS IN EXCHANGE FOR MARKET POWER: TWO APPROACHES BASED ON QUID PRO QUO II. IDENTIFYING THE PROBLEMS: LACK OF ACCESS, LACK OF DIVERSITY A. The Current State of Access Rights B. Connecting Access, Diversity, and Ownership: An Evolving Debate 1. Scarcity as a Justification for Diversity and Localism 2. Questioning Allocational Scarcity in a World of Abundant Media 3. Free Markets, Diversity, and Localism C. Revisiting the Public Trustee Theory III. APPLYING THE QUID PRO Quo ARGUMENT TO ELECTRONIC MEDIA A. Quid Pro Quo in Lieu of Scrutiny 1. Erie's Contractual Quid Pro Quo Approach 2. Contractual Approach to Quid Pro Quo after Erie 3. Contractual Quid Pro Quo and the Nature of Cable Franchise Agreements B. The Scrutiny Alternative: Quid Pro Quo Under the O'Brien Test IV. MULTIPLEXING AS ACCESS OPPORTUNITY A. Multiplexing as an Additional Government Benefit B. Scaled Bandwidth/Time-Based Access Formula V. EXTENDING THE QUID PRO QUO TO ALL CONGLOMERATE-OWNED MEDIA A. Waiving First Amendment Rights or Exchanging Speech Burden for Access B. Content-Neutral Right of Access and Editorial Discretion VI. CONCLUSION I. INTRODUCTION: PUBLIC ACCESS IN EXCHANGE FOR MARKET POWER: TWO APPROACHES BASED ON QUID PRO QUO This Article proposes that Congress revisit the concept of a public right of access to broadcast media and enact legislation so that those who do not have market power in the media can have access to local stations in order to air local views or content. As increased bandwidth, digital compression, and alternate content sources make it possible for companies to own more media outlets, policymakers need to look beyond the scarcity of broadcast frequencies (1) if they want to foster a true marketplace of ideas. Courts and policymakers must look at market power and public access in order to find a viable solution to the lack of diverse programming content. The debate is not about whether a regional corporation should be permitted to compete against a conglomerate in the broadcast marketplace, but whether broadcast media with market power, in return for the access granted to them by the government, have an obligation to air both local and nationally diverse views on the public's airwaves. The access regime advocated in this Article is based on a theory of quid pro quo: (2) a bargained-for exchange in which broadcasters would trade media access for market power. Under this quid pro quo approach, the FCC would administer a scaled metric whereby the greater a conglomerate's audience reach, (3) the more access that conglomerate must provide to citizens with diverse and/or local content. In an analog broadcasting context, one possible application of the quid pro quo theory would be to look to a time-based right of access that is accepted voluntarily by media companies in exchange for the government granting increased electronic media ownership caps. While this Article advocates a specific quid pro quo metric, which is defined below, there are two distinctively different approaches that would legally permit the government to trade market power for access even if the courts abandon the scarcity justifications for access validated by the Supreme Court in the 1969 case of Red Lion Broadcasting Co. v. FCC. (4) An expansive approach to quid pro quo follows existing jurisprudence relating to contractual waiver of constitutional rights and implements the licensee as public trustee justification that is also proffered in Red Lion, albeit with less notoriety. Building upon existing Supreme Court contracts cases and applied in a media context in Erie Telecommunications v. City of Erie, 853 F.2d 1084 (3d Cir. 1988), this contractual quid pro quo approach allows the government to enact content regulations not subject to strict scrutiny. …