Much has been written about the Kennedy-Hollings amendment, which is forcing media mogul Rupert Murdoch to sell either his newspapers or his television stations in New York and Boston. But that amendment to the recently passed spending bill has much greater consequences because it would prevent the Federal Communications Commission from investigating newspaper-broadcast cross-ownership rules. This is bad policy, and here's why.
When the states ratified the First Amendment in 1791, there were only a handful of daily newspapers published in this country. Each was highly partisan. Each freely mixed editorial opinion with news and even attacked our Founders with vitriolic criticism. Yet freedom of expression was so important to those who founded this country that they protected those newspapers with the strongest possible language: "Congress shall make no law abridging . . . freedom of the press."
Despite the First Amendment, newspapers -- particularly daily, independent newspapers -- may be threatened today because of rules passed by the FCC in 1975. Those rules say that a newspaper cannot own a radio or a television station in its own town unless it already owned one prior to 1975.
During the 13 years these rules have been in effect, they have not achieved their goal. For that reason, the Freedom of Expression Foundation, which I helped to establish, petitioned the FCC to investigate whether the rules should be abandoned or modified. Here are some of the reasons why many public experts agree they should be changed.
First, the rules may be hurting the newspaper industry. In 1975, there were 1,768 daily newspapers in America; today there are 1,657 and the number is declining. In 1975, there were 650 wholly independent daily newspapers; today there are only 434. Twenty-two of the top 50 media markets had competing daily newspapers; today only 11 do. If the cross-ownership rules are contributing to these failures, they are certainly not meeting their goal of ensuring diversity of news and opinion.
Second, the FCC did not find in 1975 that newspaper-broadcast combinations had failed to serve the public interest. In fact, the commission found that cross-owned stations provided more local programming and better news coverage than non-cross-owned stations. The commission found no pattern of specific abuses by existing cross-owners. In short, the record does not support the establishment of cross-ownership rules in a convincing way.
Third, when the Supreme Court upheld the rules, it said, in a footnote to the decision, that the rules were constitutionally acceptable because they allowed the FCC to grant waivers in hardship cases. Thus, the FCC should at least be allowed to examine cross-ownership situations on a case-by-case basis. Under the Kennedy-Hollings law, such a procedure is not allowed, and no waivers may be granted for the next year.
Fourth, by "grandfathering" some cross-ownerships, the rules put new newspapers, or papers that did not own stations at the time the rules were adopted, at a competitive disadvantage. Imagine that you publish a daily newspaper and own no other media outlet. Then imagine that the newspaper published across town owns a radio or a television station. Now tell me which paper saves money in terms of costs for news coverage, which one is likely to generate more advertising revenue and which one is more likely to survive in the long run. If the cross-ownership rules lead to unfair competition in some markets, then the FCC had better look into them.
Recently, the FCC created incentives to encourage development of UHF television stations. It also began an investigation of the ownership rules governing AM radio stations because many are in financial difficulty. It's time the FCC did the same thing for newspapers. After all, in the Newspaper Preservation Act of 1970, Congress said it was in the public interest to maintain and encourage the development of daily newspapers.
Furthermore, conditions have changed dramatically with regard to diversity of media outlets within markets. Both radio and television have increased by 33 percent since 1975; today 96 percent of all television households receive five or more television stations. Half of American households subscribe to cable. These statistics don't even take into account weekly print media, low-power television, multichannel distribution systems and satellite master antenna systems.
If a market exists where one newspaper can own the only television or radio station in town, then let the Justice Department apply a rule that prevents such a monopoly, if it can prove the rule is in the public interest. Allowing the FCC to apply such rules in large, diverse markets like New York, Chicago, Boston and Los Angeles flies in the face of our Founders' hands-off policy when it came to the press. It may also be decreasing diversity in those cities by forcing papers out of business. And it may be reducing the quality of news provided by depriving broadcasters of the resources a newspaper can provide.
The problem is that before the FCC could even decide whether to conduct an investigation on these rules, legislation that effectively ordered the FCC not to investigate this issue was passed at the very end of last year's legislative session. The vast majority of senators knew nothing about the cross-ownership provision prior to passing this legislation. For these reasons alone, the provision should be repealed.
But don't let the hue and cry over the perversion of the appropriations process obscure the fact that when it came to newspapers, the Founders wanted the press to be free to do its job of keeping an eye on the government. Any rules that interfere with that process are alien to our First Amendment traditions. That's why I support repeal of the Kennedy-Hollings amendment and why I believe the FCC should examine the cross-ownership rules.
The writer is a Republican senator from Oregon.