Overwhelmed by Big Consolidation: Bringing Back Regulation to Increase Diversity in Programming That Serves Minority Audiences

I. INTRODUCTION II. HISTORY OF DIVERSITY AND CONSOLIDATION IN THE MEDIA A. Early Notions and Development of Diversity B. Metro Broadcasting, Inc. v. Federal Communications Commission and the Following Stagnation of Minority Ownership C. Furthering Consolidation: The Telecommunications Act of 1996 and the FCC 2003 Report and Order D. Backlash to FCC Actions: Prometheus Radio Project v. Federal Communications Commission III. THE FUTURE OF DIVERSITY IN THE MEDIA A. Should We Have Diversity in Ownership of the Media? B. Could the Internet Serve As a Substitute for Diverse Programming? C. Bringing Back Regulation and Implications of the Fairness Doctrine IV. CONCLUSION I. INTRODUCTION The president of a national organization advocating for more diverse role models in programming once joked, "[T]here actually have been studies showing there are more extraterrestrials on television than Latinos." (1) Although intended as a humorous representation of the lack of minorities in American media, the statement demonstrates the harsh reality that the media industry often ignores its minority audience. With the deregulation of media in the 1980s, 1990s, and 2000s, the unprecedented consolidation of American media has narrowed the ability of minority and nonminority audiences to obtain diverse programming. (2) While the FCC has tried addressing this problem by promoting its policy of expanding minority ownership of the media, (3) heavy deregulation in the last three decades has resulted in "Big Media" companies consolidating their ownership across media; this consolidation has "threatened [] localism, diversity, and competition[,]" and has led to a considerable downsizing of local reporters, editors, and DJs who cater to cities and towns across America. (4) In an age where the next great technological advancement is just five minutes away, one might think American society has access to a plethora of information to make us a better-informed public with programming that appeals to a variety of individuals within the American public. However, with a few Big Media companies controlling all facets of communication such as radio, television, cable, newspapers, and the Internet, we are reading and seeing recycled stories that cater to a majoritarian audience. (5) In order to progress as an inclusive society, we need diverse programming that exposes all audiences to different perspectives and not just to that of a nonminority demographic. Although there was hope that deregulating media ownership would result in an open communication marketplace that would optimize the number of viewpoints expressed in the media, (6) market forces by themselves have not been able to achieve this "idealized marketplace of ideas." (7) In order to obtain diversity in the media that is more reflective of our diverse population (8) and that does not neglect the minority audience, the FCC needs to bring back regulation rather than allow markets to dictate what best serves the public interest. Although the current policy of the FCC to promote minority ownership of the media as a way to achieve more diverse programming is an important policy, it is a policy that has not been easily achieved and is traditionally criticized for a lack of empirical evidence demonstrating a nexus between minority ownership and diverse programming. (9) The FCC should look beyond its focus on ownership regulation to regulations providing for diversified programming and lowering market control that dictates programming. This Note considers the current media ownership regulation scheme and provides possible solutions that will enhance programming that serves minority and nonminority audiences alike. Part II describes the historical development of diversity in the media through landmark cases, such as Metro Broadcasting, Inc. v. Federal Communications Commission, (10) and the consolidating effects of the Telecommunications Act of 1996 (11) and the FCC's 2003 Report and Order, (12) which yielded backlash from critics and the courts in Prometheus Radio Project v. …