Antitrust Language Barriers: First Amendment Constraints on Defining an Antitrust Market by a Broadcast's Language, and Its Implications for Audiences, Competition, and Democracy

Article excerpt

  I. INTRODUCTION
 II. THE COMMERCIAL SPEECH DOCTRINE AND LOWER LEVELS
     OF SCRUTINY USED FOR STRUCTURAL BROADCAST
     REGULATIONS DO NOT GOVERN ANTITRUST MARKET
     DEFINITION ANALYSIS
     A. Distinguishing Broadcast Programming From
        Commercial Speech
     B. Antitrust Market Definition Should be Subject to a
        Higher Level of Scrutiny Than That Used for Structural
        Regulation of Broadcasting
III. IS DEFINING AN ANTITRUST RADIO MARKET BY LANGUAGE
     A CONTENT-BASED OR A CONTENT-NEUTRAL DISTINCTION?
     A. Standard of Review
     B. Is the Market Definition Content-Based or Content-Neutral?
     C. Benefits and Burdens Imposed by Distinguishing Radio
        Markets by the Broadcast's Language: Distinctive
        Content of Spanish-Language Broadcasts
     D. The Public's Interest in Broadcasters' Speech
     E. Defining a Broadcast Market by Language is Not a
        Reasonable Time, Place or Manner Restriction
 IV. MARKET STRUCTURE, SUBSTITUTION, LIKELIHOOD OF
     ENTRY, AND COMPELLING OR SUBSTANTIAL STATE
     INTEREST
     A. Product Substitution
     B. Supply-Side Antitrust Analysis: The Role of Market
        Entry and Structure in Proving a Compelling or
        Substantial Government Interest
  V. CONCLUSION

I. INTRODUCTION

Does the language of a broadcast's program appropriately define an antitrust market, consistent with First Amendment and antitrust principles? The Department of Justice ("DOJ") has traditionally defined the market for mass media transactions by type of media, casting radio as competing in one market, and over-the-air television, for example, in another. (1) Within the medium of radio, the DOJ has divided the market by the language of the broadcast, defining Spanish-language radio as a separate market from English-language radio in its 2008 analysis of the proposed private equity firm buyout of Clear Channel, and in its 2003 review of the merger of Univision Communications, Inc. ("Univision") and Hispanic Broadcasting Corporation ("HBC"), leading broadcasters of Spanish-language television and radio, respectively. (2) This Article contends that the decision to define an antitrust market by the broadcast's language raises concerns about its constitutionality and its effect on competition and democracy. If inaccurate, the market definition may not only distort competition, it may limit the broadcaster's freedom of speech and the public's ability to hear that programming. The First Amendment protects speakers and those who wish to hear that speaker's message. (3)

The debate about the relevant market for broadcasters engaged in Spanish-language programming continued to reverberate in the 2007 sale of Univision to a consortium of private equity firms. Federal Communications Commission ("FCC") Commissioner Michael Copps criticized the FCC's approval of the Univision sale for its failure to decide "whether Spanish-language programming constitutes a separate market segment that must be analyzed in isolation from English-speaking programming." (4) In its 2008 approval of the purchase of Clear Channel by a consortium of private equity firms, the FCC did not address the issue of whether the Clear Channel stations programmed in Spanish competed in a separate market, in contrast to the DOJ's definition of the relevant market for analyzing the effect of the potential Clear Channel buyers' equity and voting interests in Univision as "the provision of advertising time on Spanish-language radio stations." (5) Future transactions involving stations programming in Spanish or other non-English languages that are sufficiently large to trigger antitrust merger review will require similar analysis of the role of language in defining an antitrust market. (6)

The FCC's reconsideration of the limits on how many radio and television stations an entity may control locally or nationally and its evaluation of the cross-media ownership rules limiting newspaper ownership of television stations in the same market highlighted the role of Spanish-language media in the overall media market. …