Antitrust and the marketplace of ideas

Antitrust Law Journal

Volumn 69, Issue 1, 2001, Pages 249-302

  Stucke, Maurice E ^a   Grunes, Allen P ^a  

^a NONE

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EID: 0035610050     PISSN: 00036056     EISSN: None     Source Type: Journal    
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References (298)

1. Robert Pitofsky, The Political Content of Antitrust, 127 U. PA. L. REV. 1051 (1979).
2. Id. at 1052.
3. Id. at 1051.
4. U.S. Department of Justice and Federal Trade Commission Horizontal Merger Guidelines (1992, revised 1997), reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,104 [hereinafter Horizontal Merger Guidelines].
5. Associated Press v. United States, 326 U.S. 1 (1945).
6. Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) (Turner).
7. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 1383 (Merriam-Webster 1986).
8. 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
9. Id. at 630. Thomas Jefferson likewise noted that truth prevails in this marketplace, writing, "[I]n every country where man is free to think and to speak, differences of opinion will arise from difference of perception, and the imperfection of reason; but these differences when permitted, as in this happy country, to purify themselves by free discussion, are but as passing clouds overspreading our land transiently and leaving our horizon more bright and serene." Thomas Jefferson, Letter to Benjamin Waring, 1801, in 10 THE WRITINGS OF THOMAS JEFFERSON 235 (MEMORIAL EDITION 1904). Alexis de Tocqueville also touched upon this concept in his observations of America in his 1831 travels. He viewed the American press skeptically - observing that three-quarters of the American newspaper was filled with advertisements, with the remainder containing political news and anecdotes. Given the low entry barriers that allowed the proliferation of local newspapers in America, each newspaper had limited power individually (in contrast to the centralized press in France at the time). Yet, when he viewed the American press collectively in this marketplace, de Tocqueville concluded that the "opinions established under the dominion of the freedom of the press in the United States are often more tenacious than those formed elsewhere under the dominion of censorship." ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 178 (Harvey Mansfield & Delba Winthrop trans. & eds., 2000).
10. Abrams, 250 U.S. at 630.
11. United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943),
12. aff'd, 326 U.S. 1 (1945).
13. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
14. Associated Press, 52 F. Supp. at 372.
15. Associated Press, 326 U.S. at 20.
16. The First Amendment, after all, begins with "Congress shall make no law . . ." U.S. CONST. amend. I.
17. 436 U.S. 775, 800 n.18 (1978).
18. 395 U.S. at 390.
19. United States v. AT&T, 552 F. Supp. 131, 184 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983).
20. United States v. AT&T, 552 F. Supp. 131, 184 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983).
21. COLUMBIA JOURNALISM REVIEW'S Internet site identifies the holdings of the major media companies. See http://www.cjr.org/owners/.
22. Eli Noam, Media Concentration in the United States: Industry Trends and Regulatory Response, available at http://www.vii.org/papers/medconc.htm. As Eli Noam has observed, it is not obvious that media concentration is increasing. First, although firms have been growing in size, the media market as a whole (which Professor Noam defines as the market for broadcast, cable, print, and content) has also been growing rapidly. Second, firms have been crossing lines that once divided the media, telecommunications, and computer industries. There have been significant changes from the early 1980s, when CBS, NBC, and ABC collectively had more than 90 percent of television viewership, AT&T had 80 percent of local telephone service as well as almost 100 percent of long distance service, and IBM accounted for more than 75 percent of the computer market. Under Eli Noam's preliminary estimations, the overall concentration of the information industry has remained "fairly consistent" during the merger-intensive period of 1983-1984 through 1998. It declined from 1993 to 1995, and then rose again to levels that are (depending on the index used) either still slightly lower than before or slightly higher. See Eli Noam, Are American Media Becoming More Concentrated? A Decade's Empirical Evidence (Preliminary Working Draft, Oct. 1998), available at http://www.tprc.org/abstracts98/noam.txt. This reflects, for Professor Noam, that the growth of the industry has kept pace with the growth of its participants. He is currently preparing a book for publication that seeks to answer this empirical question. ELI NOAM, MEDIA CONCENTRATION IN AMERICA (forthcoming).
23. Eli Noam, Media Concentration in the United States: Industry Trends and Regulatory Response, available at http://www.vii.org/papers/medconc.htm. As Eli Noam has observed, it is not obvious that media concentration is increasing. First, although firms have been growing in size, the media market as a whole (which Professor Noam defines as the market for broadcast, cable, print, and content) has also been growing rapidly. Second, firms have been crossing lines that once divided the media, telecommunications, and computer industries. There have been significant changes from the early 1980s, when CBS, NBC, and ABC collectively had more than 90 percent of television viewership, AT&T had 80 percent of local telephone service as well as almost 100 percent of long distance service, and IBM accounted for more than 75 percent of the computer market. Under Eli Noam's preliminary estimations, the overall concentration of the information industry has remained "fairly consistent" during the merger-intensive period of 1983-1984 through 1998. It declined from 1993 to 1995, and then rose again to levels that are (depending on the index used) either still slightly lower than before or slightly higher. See Eli Noam, Are American Media Becoming More Concentrated? A Decade's Empirical Evidence (Preliminary Working Draft, Oct. 1998), available at http://www.tprc.org/abstracts98/noam.txt. This reflects, for Professor Noam, that the growth of the industry has kept pace with the growth of its participants. He is currently preparing a book for publication that seeks to answer this empirical question. ELI NOAM, MEDIA CONCENTRATION IN AMERICA (forthcoming).
24. Pub. L. 104-104, 110 Stat. 56 (codified in scattered sections of Titles 15, 18 & 47 of the United States Code (West Supp. 1997)).
25. See, e.g., Bryan Gruley, Pitofsky Will Test Marketplace of Ideas Theory in FTC's Review of Time Warner-Turner Deal, WALL ST. J., Oct. 9, 1995, at A14, available at 1995 WL 9903008; James Bock, Citizen Kane as Conglomerate, BALTIMORE SUN, Apr. 3, 1996, at 2A, available at 1996 WL 6612466; Alexandra Marks, Big Radio Merger Fuels Concern over Diversity, CHRISTIAN SCIENCE MONITOR, June 24, 1996, at 8, available at 1996 WL 5042456; Alexandra Marks, Mergers May Give Viewers Less Choice, CHRISTIAN SCIENCE MONITOR, July 11, 1996, at 1, available at 1996 WL 5042828; Michael J. Mandel, All these Mergers Are Great, But . . ., BUS. WK., Oct. 18, 1999, at 48, available at 1999 WL 27295621; Press Release, Sen. Paul Wellstone, Wellstone Wants Tougher FCC and Antitrust Review of Media and Telecom Mergers (Oct. 7, 1999), available at 1999 WL 28845779.
26. See, e.g., Bryan Gruley, Pitofsky Will Test Marketplace of Ideas Theory in FTC's Review of Time Warner-Turner Deal, WALL ST. J., Oct. 9, 1995, at A14, available at 1995 WL 9903008; James Bock, Citizen Kane as Conglomerate, BALTIMORE SUN, Apr. 3, 1996, at 2A, available at 1996 WL 6612466; Alexandra Marks, Big Radio Merger Fuels Concern over Diversity, CHRISTIAN SCIENCE MONITOR, June 24, 1996, at 8, available at 1996 WL 5042456; Alexandra Marks, Mergers May Give Viewers Less Choice, CHRISTIAN SCIENCE MONITOR, July 11, 1996, at 1, available at 1996 WL 5042828; Michael J. Mandel, All these Mergers Are Great, But . . ., BUS. WK., Oct. 18, 1999, at 48, available at 1999 WL 27295621; Press Release, Sen. Paul Wellstone, Wellstone Wants Tougher FCC and Antitrust Review of Media and Telecom Mergers (Oct. 7, 1999), available at 1999 WL 28845779.
27. See, e.g., Bryan Gruley, Pitofsky Will Test Marketplace of Ideas Theory in FTC's Review of Time Warner-Turner Deal, WALL ST. J., Oct. 9, 1995, at A14, available at 1995 WL 9903008; James Bock, Citizen Kane as Conglomerate, BALTIMORE SUN, Apr. 3, 1996, at 2A, available at 1996 WL 6612466; Alexandra Marks, Big Radio Merger Fuels Concern over Diversity, CHRISTIAN SCIENCE MONITOR, June 24, 1996, at 8, available at 1996 WL 5042456; Alexandra Marks, Mergers May Give Viewers Less Choice, CHRISTIAN SCIENCE MONITOR, July 11, 1996, at 1, available at 1996 WL 5042828; Michael J. Mandel, All these Mergers Are Great, But . . ., BUS. WK., Oct. 18, 1999, at 48, available at 1999 WL 27295621; Press Release, Sen. Paul Wellstone, Wellstone Wants Tougher FCC and Antitrust Review of Media and Telecom Mergers (Oct. 7, 1999), available at 1999 WL 28845779.
28. See, e.g., Bryan Gruley, Pitofsky Will Test Marketplace of Ideas Theory in FTC's Review of Time Warner-Turner Deal, WALL ST. J., Oct. 9, 1995, at A14, available at 1995 WL 9903008; James Bock, Citizen Kane as Conglomerate, BALTIMORE SUN, Apr. 3, 1996, at 2A, available at 1996 WL 6612466; Alexandra Marks, Big Radio Merger Fuels Concern over Diversity, CHRISTIAN SCIENCE MONITOR, June 24, 1996, at 8, available at 1996 WL 5042456; Alexandra Marks, Mergers May Give Viewers Less Choice, CHRISTIAN SCIENCE MONITOR, July 11, 1996, at 1, available at 1996 WL 5042828; Michael J. Mandel, All these Mergers Are Great, But . . ., BUS. WK., Oct. 18, 1999, at 48, available at 1999 WL 27295621; Press Release, Sen. Paul Wellstone, Wellstone Wants Tougher FCC and Antitrust Review of Media and Telecom Mergers (Oct. 7, 1999), available at 1999 WL 28845779.
29. See, e.g., Bryan Gruley, Pitofsky Will Test Marketplace of Ideas Theory in FTC's Review of Time Warner-Turner Deal, WALL ST. J., Oct. 9, 1995, at A14, available at 1995 WL 9903008; James Bock, Citizen Kane as Conglomerate, BALTIMORE SUN, Apr. 3, 1996, at 2A, available at 1996 WL 6612466; Alexandra Marks, Big Radio Merger Fuels Concern over Diversity, CHRISTIAN SCIENCE MONITOR, June 24, 1996, at 8, available at 1996 WL 5042456; Alexandra Marks, Mergers May Give Viewers Less Choice, CHRISTIAN SCIENCE MONITOR, July 11, 1996, at 1, available at 1996 WL 5042828; Michael J. Mandel, All these Mergers Are Great, But . . ., BUS. WK., Oct. 18, 1999, at 48, available at 1999 WL 27295621; Press Release, Sen. Paul Wellstone, Wellstone Wants Tougher FCC and Antitrust Review of Media and Telecom Mergers (Oct. 7, 1999), available at 1999 WL 28845779.
30. Press Release, Sen. Paul Wellstone, Wellstone Wants Tougher FCC and Antitrust Review of Media and Telecom Mergers (Oct. 7, 1999), available at 1999 WL 28845779.
31. Hearing on the Viacom/CBS Merger: Media Competition and Consolidation in the New Millennium Before the Senate Antitrust, Business Rights, and Competition Subcommittee, 106th Cong., Oct. 28, 1999 (prepared opening statement of Sen. Michael DeWine).
32. Amended Complaint ¶ 191, Viacom Int'l v. Tele-Communications, Inc., No. 93 Civ. 6658 (KC) (S.D.N.Y.). Viacom ended up acquiring Paramount.
33. Statement by U.S. Senators Michael DeWine and Herbert Kohl, Chairman and Ranking Member of the Senate Subcommittee on Antitrust, Business Rights, and Competition, on the Proposed Viacom-CBS Merger, 106th Cong., Sept. 7, 1999, available at 1999 WL 2226549.
34. 326 U.S. at 27-28.
35. Karl Taro Greenfeld, The CBS-Viacom Merger, TIME, Sept. 20, 1999, at 48, available at 1999 WL 25725375.
36. Paige Albiniak, Routing Favoritism, BROADCASTING & CABLE, May 15, 2000, at 14, available at 2000 WL 12310124; see also Robert B. Reich, AOL-Time Warner's Kingly Prerogative, AM. PROSPECT, Feb. 14, 2000, at 56, available at 2000 WL 4739703.
37. Paige Albiniak, Routing Favoritism, BROADCASTING & CABLE, May 15, 2000, at 14, available at 2000 WL 12310124; see also Robert B. Reich, AOL-Time Warner's Kingly Prerogative, AM. PROSPECT, Feb. 14, 2000, at 56, available at 2000 WL 4739703.
38. Peter S. Goodman & John Schwartz, Deal Stirs Concerns About Internet Access, WASH. POST, Jan. 11, 2000, at El, available at 2000 WL 2279315.
39. Alec Klein, A Hard Look at Media Mergers, WASH. POST, Nov. 29. 2000, at E1, available at 2000 WL 29918451 (quoting Robert Pitofsky, FTC Chairman).
40. Statement by FTC Chairman Pitofsky, in Dec. 14, 2000, FTC Press Release, "FTC Approves AOL/Time Warner Merger with Conditions," available at http://www.ftc.gov/ opa/2000/12/aol.htm. As part of the consent decree, which is effective for a five-year term, AOL Time Warner is (1) required to open its cable system to competitor Internet Service Providers (ISPs); (2) prohibited from interfering with the content passed along its bandwidth contracted for by ISPs not affiliated with AOL Time Warner; and (3) prevented from discriminating on the basis of affiliation in the transmission of content, or from entering into exclusive arrangements with other cable companies with respect to ISP services. Id.; see also Analysis of Proposed Consent Order to Aid Public Comment filed in In the Matter of America Online, Inc., and Time Warner Inc., Docket No. C-3989, available at http://www.ftc.gov/os/2000/12/aolanalysis.pdf.
41. Statement by FTC Chairman Pitofsky, in Dec. 14, 2000, FTC Press Release, "FTC Approves AOL/Time Warner Merger with Conditions," available at http://www.ftc.gov/ opa/2000/12/aol.htm. As part of the consent decree, which is effective for a five-year term, AOL Time Warner is (1) required to open its cable system to competitor Internet Service Providers (ISPs); (2) prohibited from interfering with the content passed along its bandwidth contracted for by ISPs not affiliated with AOL Time Warner; and (3) prevented from discriminating on the basis of affiliation in the transmission of content, or from entering into exclusive arrangements with other cable companies with respect to ISP services. Id.; see also Analysis of Proposed Consent Order to Aid Public Comment filed in In the Matter of America Online, Inc., and Time Warner Inc., Docket No. C-3989, available at http://www.ftc.gov/os/2000/12/aolanalysis.pdf.
42. Complaint for Injunctive Relief, United States v. Clear Channel Communications, Inc. and AMFM Inc., No. 00-2063 (D.D.C. filed Aug. 29, 2000) (complaint filed with consent decree), available at http://www.usdoj.gov/atr/cases/f6300/6329.htm; see also United States v. CBS Corp. and American Radio Sys. Corp., 63 Fed. Reg. 18,036 (1998) (proposed decree requiring divestiture of radio stations to cure anticompetitive effect in radio advertising market); United States v. Westinghouse Elec. Corp. and Infinity Broad. Corp., 61 Fed. Reg. 63,861 (1996) (same).
43. Complaint for Injunctive Relief, United States v. Clear Channel Communications, Inc. and AMFM Inc., No. 00-2063 (D.D.C. filed Aug. 29, 2000) (complaint filed with consent decree), available at http://www.usdoj.gov/atr/cases/f6300/6329.htm; see also United States v. CBS Corp. and American Radio Sys. Corp., 63 Fed. Reg. 18,036 (1998) (proposed decree requiring divestiture of radio stations to cure anticompetitive effect in radio advertising market); United States v. Westinghouse Elec. Corp. and Infinity Broad. Corp., 61 Fed. Reg. 63,861 (1996) (same).
44. Complaint for Injunctive Relief, United States v. Clear Channel Communications, Inc. and AMFM Inc., No. 00-2063 (D.D.C. filed Aug. 29, 2000) (complaint filed with consent decree), available at http://www.usdoj.gov/atr/cases/f6300/6329.htm; see also United States v. CBS Corp. and American Radio Sys. Corp., 63 Fed. Reg. 18,036 (1998) (proposed decree requiring divestiture of radio stations to cure anticompetitive effect in radio advertising market); United States v. Westinghouse Elec. Corp. and Infinity Broad. Corp., 61 Fed. Reg. 63,861 (1996) (same).
45. See, e.g., Complaint for Injunctive Relief ¶¶ 11-14, United States v. Clear Channel Communications, Inc. and AMFM Inc., No. 00-2063 (D.D.C. filed Aug. 29, 2000), available at http://www.usdoj.gov/atr/cases/f6300/6329.htm.
46. Id. ¶¶ 21-25.
47. Community Publishers, Inc. v. Donrey Corp., 892 F. Supp. 1146 (W.D. Ark. 1995),
48. aff'd, 139 F.3d 1180 (8th Cir. 1998). We discuss later in this article this case and other newspaper mergers as support for our proposition.
49. 26 Stat. 209, 15 U.S.C. §§ 1-7.
50. 26 Stat. 209, 15 U.S.C. §§ 1-7.
51. 21 CONG. REC. 2457 (1890).
52. Id. 39 Standard Oil Co. v. United States, 221 U.S. 1, 50 (1910).
53. Id. at 83 (Harlan, J., concurring and dissenting).
54. United States v. Aluminum Co. of Am., 148 F.2d 416, 428 (2d Cir. 1945).
55. Id. at 428 n.1
56. (quoting 21 CONG. REC. 2460).
57. 15 U.S.C. § 18.
58. Section 7's usefulness in preventing anticompetitive mergers was diminished as a result of a series of Supreme Court decisions beginning shortly after its enactment in 1914. In 1950, Congress amended Section 7 by passage of the Celler-Kefauver Act, ch. 1184, 64 Stat. 1125 (1950) (codified at 15 U.S.C. §§ 18, 21).
59. Section 7's usefulness in preventing anticompetitive mergers was diminished as a result of a series of Supreme Court decisions beginning shortly after its enactment in 1914. In 1950, Congress amended Section 7 by passage of the Celler-Kefauver Act, ch. 1184, 64 Stat. 1125 (1950) (codified at 15 U.S.C. §§ 18, 21).
60. Brown Shoe Co. v. United States, 370 U.S. 294, 315 (1962).
61. 4 EARL W. KINTNER, THE LEGISLATIVE HISTORY OF THE FEDERAL ANTITRUST LAWS AND RELATED STATUTES 3611 (1978).
62. House Debate, 81st Cong., 1st Sess., Aug. 15, 1949, reprinted in 4 KINTNER, supra note 46, at 3481.
63. Id. at 3611.
64. 96 CONG. REC. 16,452 (1950) (remarks of Sen. Kefauver).
65. The House Committee Report to the original Clayton Act stated, "[t]he concentration of wealth, money, and property in the United States under the control and in the hands of a few individuals or great corporations has grown to such an enormous extent that unless checked it will ultimately threaten the perpetuity of our institutions." H.R. REP. No. 627, 63d Cong., at 19 (1914), reprinted in 2 KINTNER, supra note 46, at 1089, 1099.
66. The House Committee Report to the original Clayton Act stated, "[t]he concentration of wealth, money, and property in the United States under the control and in the hands of a few individuals or great corporations has grown to such an enormous extent that unless checked it will ultimately threaten the perpetuity of our institutions." H.R. REP. No. 627, 63d Cong., at 19 (1914), reprinted in 2 KINTNER, supra note 46, at 1089, 1099.
67. The President said that the rise in private power threatened democratic institutions and could call forth a dramatic and matched response. Consequently, the "enforcement of free competition is the least regulation a business can expect." Message from President Franklin D. Roosevelt to the Congress Transmitting Recommendations Relative to the Strengthening and Enforcement of the Antitrust Laws, Apr. 29, 1939, reprinted, in 4 KINTNER, supra note 46, at 3408.
68. Report of the Federal Trade Commission, The Merger Movement: A Summary Report (1948), reprinted in 4 KINTNER, supra note 46, at 3456.
69. 326 U.S. 1 (1945).
70. 512 U.S. 622 (1994).
71. 52 F. Supp. 362 (S.D.N.Y. 1943), aff'd, 326 U.S. 1 (1945).
72. 52 F. Supp. 362 (S.D.N.Y. 1943), aff'd, 326 U.S. 1 (1945).
73. Associated Press, 52 F. Supp. at 367.
74. Associated Press, 326 U.S. at 42.
75. Associated Press, 52 F. Supp. at 366.
76. Id. at 367.
77. Id. at 375.
78. Id. at 18 (quoting 52 F. Supp. at 373 (internal quotations omitted)). Judge Hand noted that 81 percent of the morning newspapers of the United States and 59 percent of the evening papers were members of AP. Id. at 366.
79. Associated Press, 326 U.S. at 17.
80. Id. at 27-28 (Frankfurter, J., concurring). Moreover, writing for the majority, Justice Black found that applying the antitrust laws to the media did not violate the First Amendment - rather it comports with the obligation of the United States under that Amendment: It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Id. at 20.
81. Id. at 43 (Roberts, J., dissenting).
82. Id. at 51 (Murphy, J., dissenting).
83. Id. at 48 (Roberts, J., dissenting).
84. Id. at 52-53 (Murphy, J., dissenting).
85. Id.
86. 512 U.S. 622 (1994).
87. Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992 Cable Act). In enacting the 1992 Cable Act, the Senate was concerned about the dramatic increase in concentration of the cable media: By 1990, the five largest cable operators served nearly half the country's cable subscribers. S. REP. at 32. Witnesses testified that as a result of this increase in concentration "the large MSOs [multiple system operators] have the market power to determine what programming services can 'make it' on cable." S. REP. at 33, 1992 U.S.C.C.A.N. at 1167. Based upon this and related evidence, the Congress found that "[t]he potential effects of . . . concentration [in the cable industry] are barriers to entry for new programmers and a reduction in the number of media voices available to consumers." 47 U.S.C. § 521 (a) (4). It also found that "[t]here is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media." Id. § 521 (a) (6). Time Warner Entm't v. United States, 211 F.3d 1313, 1319-20 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 1167 (2001).
88. Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102- 385, 106 Stat. 1460 (1992 Cable Act). In enacting the 1992 Cable Act, the Senate was concerned about the dramatic increase in concentration of the cable media: By 1990, the five largest cable operators served nearly half the country's cable subscribers. S. REP. at 32. Witnesses testified that as a result of this increase in concentration "the large MSOs [multiple system operators] have the market power to determine what programming services can 'make it' on cable." S. REP. at 33, 1992 U.S.C.C.A.N. at 1167. Based upon this and related evidence, the Congress found that "[t]he potential effects of . . . concentration [in the cable industry] are barriers to entry for new programmers and a reduction in the number of media voices available to consumers." 47 U.S.C. § 521 (a) (4). It also found that "[t]here is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media." Id. § 521 (a) (6). Time Warner Entm't v. United States, 211 F.3d 1313, 1319-20 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 1167 (2001).
89. Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102- 385, 106 Stat. 1460 (1992 Cable Act). In enacting the 1992 Cable Act, the Senate was concerned about the dramatic increase in concentration of the cable media: By 1990, the five largest cable operators served nearly half the country's cable subscribers. S. REP. at 32. Witnesses testified that as a result of this increase in concentration "the large MSOs [multiple system operators] have the market power to determine what programming services can 'make it' on cable." S. REP. at 33, 1992 U.S.C.C.A.N. at 1167. Based upon this and related evidence, the Congress found that "[t]he potential effects of . . . concentration [in the cable industry] are barriers to entry for new programmers and a reduction in the number of media voices available to consumers." 47 U.S.C. § 521 (a) (4). It also found that "[t]here is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media." Id. § 521 (a) (6). Time Warner Entm't v. United States, 211 F.3d 1313, 1319-20 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 1167 (2001).
90. 47 U.S.C. § 534 (b) (1) (B).
91. Turner, 512 U.S. at 668.
92. Id. at 667.
93. 819 F. Supp. 32, 51 (D.D.C. 1993).
94. Id. at 40, 45-47.
95. Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997) (Turner II).
96. Id. at 225-26.
97. Turner, 512 U.S. at 663.
98. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 391 (1969).
99. Id. at 392.
100. Turner II, 520 U.S. at 232 (O'Connor, Scalia, Thomas & Ginsburg, JJ., dissenting); see also Turner, 512 U.S. at 682-83 (O'Connor, Scalia & Ginsburg, JJ., concurring in part and dissenting in part).
101. Turner II, 520 U.S. at 232 (O'Connor, Scalia, Thomas & Ginsburg, JJ., dissenting); see also Turner, 512 U.S. at 682-83 (O'Connor, Scalia & Ginsburg, JJ., concurring in part and dissenting in part).
102. Turner, 512 U.S. at 661.
103. Id. at 656. Evidence indicated that before 1984 cable operators had equity interests in 38 percent of cable programming networks. By the late 1980s, 64 percent of new cable programmers were held in vertical ownership. Turner II, 520 U.S. at 198. By 1994, the 10 largest multiple system operators controlled 63 percent of the nation's cable systems. Id. at 206. And by 1994, MSOs serving about 70 percent of the nation's cable subscribers held equity interests in cable programmers. Id. at 207. The dissenting justices did not dispute these facts. Id. at 236.
104. Turner, 512 U.S. at 656.
105. Id. at 672 (Stevens, J., concurring). But as Turner II made clear, the long-standing federal policy of preserving a multiplicity of broadcast outlets applies to cases even where the conduct that threatens it is not motivated by anticompetitive animus or does not rise to the level of an antitrust violation. Turner II, 520 U.S. at 194 (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984); United States v. Midwest Video Corp., 406 U.S. 649, 665 (1972) (plurality opinion) (FCC regulations "were . . . avowedly designed to guard broadcast services from being undermined by unregulated [cable] growth"); National Broadcasting Co. v. United States, 319 U.S. 190, 223-24 (1943) ("'While many of the network practices raise serious questions under the antitrust laws, . . . [i]t is not [the FCC's] function to apply the antitrust laws as such'")).
106. Id. at 672 (Stevens, J., concurring). But as Turner II made clear, the long-standing federal policy of preserving a multiplicity of broadcast outlets applies to cases even where the conduct that threatens it is not motivated by anticompetitive animus or does not rise to the level of an antitrust violation. Turner II, 520 U.S. at 194 (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984); United States v. Midwest Video Corp., 406 U.S. 649, 665 (1972) (plurality opinion) (FCC regulations "were . . . avowedly designed to guard broadcast services from being undermined by unregulated [cable] growth"); National Broadcasting Co. v. United States, 319 U.S. 190, 223-24 (1943) ("'While many of the network practices raise serious questions under the antitrust laws, . . . [i]t is not [the FCC's] function to apply the antitrust laws as such'")).
107. Id. at 672 (Stevens, J., concurring). But as Turner II made clear, the long-standing federal policy of preserving a multiplicity of broadcast outlets applies to cases even where the conduct that threatens it is not motivated by anticompetitive animus or does not rise to the level of an antitrust violation. Turner II, 520 U.S. at 194 (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984); United States v. Midwest Video Corp., 406 U.S. 649, 665 (1972) (plurality opinion) (FCC regulations "were . . . avowedly designed to guard broadcast services from being undermined by unregulated [cable] growth"); National Broadcasting Co. v. United States, 319 U.S. 190, 223-24 (1943) ("'While many of the network practices raise serious questions under the antitrust laws, . . . [i]t is not [the FCC's] function to apply the antitrust laws as such'")).
108. Id. at 672 (Stevens, J., concurring). But as Turner II made clear, the long-standing federal policy of preserving a multiplicity of broadcast outlets applies to cases even where the conduct that threatens it is not motivated by anticompetitive animus or does not rise to the level of an antitrust violation. Turner II, 520 U.S. at 194 (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984); United States v. Midwest Video Corp., 406 U.S. 649, 665 (1972) (plurality opinion) (FCC regulations "were . . . avowedly designed to guard broadcast services from being undermined by unregulated [cable] growth"); National Broadcasting Co. v. United States, 319 U.S. 190, 223-24 (1943) ("'While many of the network practices raise serious questions under the antitrust laws, . . . [i]t is not [the FCC's] function to apply the antitrust laws as such'")).
109. Id. at 672 (Stevens, J., concurring). But as Turner II made clear, the long-standing federal policy of preserving a multiplicity of broadcast outlets applies to cases even where the conduct that threatens it is not motivated by anticompetitive animus or does not rise to the level of an antitrust violation. Turner II, 520 U.S. at 194 (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984); United States v. Midwest Video Corp., 406 U.S. 649, 665 (1972) (plurality opinion) (FCC regulations "were . . . avowedly designed to guard broadcast services from being undermined by unregulated [cable] growth"); National Broadcasting Co. v. United States, 319 U.S. 190, 223-24 (1943) ("'While many of the network practices raise serious questions under the antitrust laws, . . . [i]t is not [the FCC's] function to apply the antitrust laws as such'")).
110. Turner II, 520 U.S. at 194.
111. Id. at 194. The Turner plurality noted that 40 percent of American households continue to rely on over-the-air signals for television programming. Despite the growing importance of cable television and alternative technologies, "broadcasting is demonstrably a principal source of information and entertainment for a great part of the Nation's population." Turner Broadcasting Sys., 512 U.S. at 663 (quoting United States v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)).
112. Id. at 194. The Turner plurality noted that 40 percent of American households continue to rely on over-the-air signals for television programming. Despite the growing importance of cable television and alternative technologies, "broadcasting is demonstrably a principal source of information and entertainment for a great part of the Nation's population." Turner Broadcasting Sys., 512 U.S. at 663 (quoting United States v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)).
113. Id. at 194. The Turner plurality noted that 40 percent of American households continue to rely on over-the-air signals for television programming. Despite the growing importance of cable television and alternative technologies, "broadcasting is demonstrably a principal source of information and entertainment for a great part of the Nation's population." Turner Broadcasting Sys., 512 U.S. at 663 (quoting United States v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)).
114. Turner, 512 U.S. at 685 (O'Connor, Scalia, Ginsburg & Thomas JJ., concurring in part and dissenting in part).
115. Id. at 683 (O'Connor, Scalia, Ginsburg, JJ., concurring in part and dissenting in part). In Turner II, the four dissenting justices noted that Congress had placed limits upon the number of cable channels that a cable operator can use for its own affiliated programming. 520 U.S. at 252 (citing 47 U.S.C. § 533(f) (1) (B)). These limits addressed for the dissenting justices any anticompetitive concerns about the vertically integrated cable operator's monopoly.
116. For a brief history of the 1974 case and earlier government cases, see PETER W. HUBER, MICHAEL K. KELLOGG & JOHN THORNE, FEDERAL TELECOMMUNICATIONS LAW § 4.4 (2d ed. 1999).
117. United States v. AT&T, 552 F. Supp. 131, 226-34 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983).
118. United States v. AT&T, 552 F. Supp. 131, 226-34 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983).
119. Id. at 223. The court defined electronic publishing as information disseminated to an unaffiliated person through some electronic means, such as pay television and electronic publications. Id. at 181 & n.208.
120. Id. at 223.
121. Id. at 224.
122. d. at 180-81, 185-86.
123. Id. at 184 (citing FCC v. Nat'l Citizens Comm. for Broad., 436 U.S. 775, 800 n.18 (1978)).
124. 552 F. Supp. at 184.
125. Id. The district court concluded that the restriction on electronic publishing "should only remain in effect for the period necessary to establish conditions conducive to free and fair competition" and announced its intention to remove the prohibition, upon motion, seven years from the entry of the decree. Id. at 186. The restriction was in fact lifted at the end of that seven-year period. See United States v. Western Elec. Co., 1989-2 Trade Cas. (CCH) ¶ 68,673 (D.D.C. July 28, 1989).
126. Times-Picayune Publ'g Co. v. United States, 345 U.S. 594, 602 (1953).
127. Id.
128. Id. Judge Learned Hand shared this view, noting that a newspaper "serves one of the most vital of all general interests: the dissemination of news from as many different sources, and with as many different facets and colors as is possible." Associated Press, 52 F. Supp. at 372.
129. United States v. Citizen Publ'g Co., 280 F. Supp. 978, 985 (D. Ariz. 1968), aff'd, 394 U.S. 131 (1969).
130. United States v. Citizen Publ'g Co., 280 F. Supp. 978, 985 (D. Ariz. 1968), aff'd, 394 U.S. 131 (1969).
131. Id.
132. Lorain Journal Co. v. United States, 342 U.S. 143, 151 (1951) (citing Associated Press v. United States, 326 U.S. 1, 14 (1945), and Associated Press v. National Labor Relations Bd., 301 U.S. 103 (1937)). The Lorain Journal refused to sell advertising space to any business that bought time on a new radio station in a nearby town. The Supreme Court held that this refusal to deal constituted an attempt to monopolize. The Court noted that the defendant's refusal to accept advertising was aimed at preserving the local newspaper's "substantial monopoly" in the mass dissemination of local and national news. Lorain Journal, 342 U.S. at 147. Justice Douglas also expressed his deep concern regarding the effects of newspaper monopolies: Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitude - and to make money. The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse . . . . WILLIAM O. DOUGLAS, THE GREAT RIGHTS 124-25, 127 (E. Cahn ed., 1963) (quoted in Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 253 (1974)).
133. Lorain Journal Co. v. United States, 342 U.S. 143, 151 (1951) (citing Associated Press v. United States, 326 U.S. 1, 14 (1945), and Associated Press v. National Labor Relations Bd., 301 U.S. 103 (1937)). The Lorain Journal refused to sell advertising space to any business that bought time on a new radio station in a nearby town. The Supreme Court held that this refusal to deal constituted an attempt to monopolize. The Court noted that the defendant's refusal to accept advertising was aimed at preserving the local newspaper's "substantial monopoly" in the mass dissemination of local and national news. Lorain Journal, 342 U.S. at 147. Justice Douglas also expressed his deep concern regarding the effects of newspaper monopolies: Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitude - and to make money. The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse . . . . WILLIAM O. DOUGLAS, THE GREAT RIGHTS 124-25, 127 (E. Cahn ed., 1963) (quoted in Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 253 (1974)).
134. Lorain Journal Co. v. United States, 342 U.S. 143, 151 (1951) (citing Associated Press v. United States, 326 U.S. 1, 14 (1945), and Associated Press v. National Labor Relations Bd., 301 U.S. 103 (1937)). The Lorain Journal refused to sell advertising space to any business that bought time on a new radio station in a nearby town. The Supreme Court held that this refusal to deal constituted an attempt to monopolize. The Court noted that the defendant's refusal to accept advertising was aimed at preserving the local newspaper's "substantial monopoly" in the mass dissemination of local and national news. Lorain Journal, 342 U.S. at 147. Justice Douglas also expressed his deep concern regarding the effects of newspaper monopolies: Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitude - and to make money. The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse . . . . WILLIAM O. DOUGLAS, THE GREAT RIGHTS 124-25, 127 (E. Cahn ed., 1963) (quoted in Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 253 (1974)).
135. Lorain Journal Co. v. United States, 342 U.S. 143, 151 (1951) (citing Associated Press v. United States, 326 U.S. 1, 14 (1945), and Associated Press v. National Labor Relations Bd., 301 U.S. 103 (1937)). The Lorain Journal refused to sell advertising space to any business that bought time on a new radio station in a nearby town. The Supreme Court held that this refusal to deal constituted an attempt to monopolize. The Court noted that the defendant's refusal to accept advertising was aimed at preserving the local newspaper's "substantial monopoly" in the mass dissemination of local and national news. Lorain Journal, 342 U.S. at 147. Justice Douglas also expressed his deep concern regarding the effects of newspaper monopolies: Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitude - and to make money. The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse . . . . WILLIAM O. DOUGLAS, THE GREAT RIGHTS 124-25, 127 (E. Cahn ed., 1963) (quoted in Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 253 (1974)).
136. Lorain Journal Co. v. United States, 342 U.S. 143, 151 (1951) (citing Associated Press v. United States, 326 U.S. 1, 14 (1945), and Associated Press v. National Labor Relations Bd., 301 U.S. 103 (1937)). The Lorain Journal refused to sell advertising space to any business that bought time on a new radio station in a nearby town. The Supreme Court held that this refusal to deal constituted an attempt to monopolize. The Court noted that the defendant's refusal to accept advertising was aimed at preserving the local newspaper's "substantial monopoly" in the mass dissemination of local and national news. Lorain Journal, 342 U.S. at 147. Justice Douglas also expressed his deep concern regarding the effects of newspaper monopolies: Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitude - and to make money. The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse . . . . WILLIAM O. DOUGLAS, THE GREAT RIGHTS 124-25, 127 (E. Cahn ed., 1963) (quoted in Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 253 (1974)).
137. A JOA is a Faustian bargain whereby the newspapers obtain a limited immunity from the antitrust laws under the Newspaper Preservation Act (NPA), 15 U.S.C. § 1801 et seq. This exemption enables the local daily newspapers to combine business functions (such as advertising, sales, printing, and distribution). But, in exchange for this exemption, the newspapers must maintain separate editorial and reporting staffs and produce separate newspapers (except in some cases, where the newspapers may produce a joint newspaper on Sundays). The purpose of this limited antitrust exemption is to preserve the editorial competition between local daily newspapers when one of the newspapers might otherwise exit the market. 15 U.S.C. § 1801 (NPA's preamble states "In the public interest of maintaining a newspaper press editorially and reportorially independent and competitive in all parts of the United States, it is hereby declared to be the public policy of the United States to preserve the publication of newspapers in any city, community or metropolitan area where a joint operating agreement has been heretofore entered into because of economic distress or is hereafter effected in accordance with the provisions of this chapter.") Thus, "a primary intent of the Newspaper Preservation Act was to promote the diversity of editorial voices among newspapers. " Committee for an Independent P-I v. Hearst Corp., 704 F.2d 467, 480 (9th Cir. 1983); see also 116 CONG. REC. 23,156 (1970) (Congressman Buchanan stating, "[t]he Newspaper Preservation Act is, in my judgment, urgently needed to assure the separate news and editorial voices in our Nation's newspapers. In this important sense it will preserve, rather than adversely affect, free competition.").
138. A JOA is a Faustian bargain whereby the newspapers obtain a limited immunity from the antitrust laws under the Newspaper Preservation Act (NPA), 15 U.S.C. § 1801 et seq. This exemption enables the local daily newspapers to combine business functions (such as advertising, sales, printing, and distribution). But, in exchange for this exemption, the newspapers must maintain separate editorial and reporting staffs and produce separate newspapers (except in some cases, where the newspapers may produce a joint newspaper on Sundays). The purpose of this limited antitrust exemption is to preserve the editorial competition between local daily newspapers when one of the newspapers might otherwise exit the market. 15 U.S.C. § 1801 (NPA's preamble states "In the public interest of maintaining a newspaper press editorially and reportorially independent and competitive in all parts of the United States, it is hereby declared to be the public policy of the United States to preserve the publication of newspapers in any city, community or metropolitan area where a joint operating agreement has been heretofore entered into because of economic distress or is hereafter effected in accordance with the provisions of this chapter.") Thus, "a primary intent of the Newspaper Preservation Act was to promote the diversity of editorial voices among newspapers. " Committee for an Independent P-I v. Hearst Corp., 704 F.2d 467, 480 (9th Cir. 1983); see also 116 CONG. REC. 23,156 (1970) (Congressman Buchanan stating, "[t]he Newspaper Preservation Act is, in my judgment, urgently needed to assure the separate news and editorial voices in our Nation's newspapers. In this important sense it will preserve, rather than adversely affect, free competition.").
139. A JOA is a Faustian bargain whereby the newspapers obtain a limited immunity from the antitrust laws under the Newspaper Preservation Act (NPA), 15 U.S.C. § 1801 et seq. This exemption enables the local daily newspapers to combine business functions (such as advertising, sales, printing, and distribution). But, in exchange for this exemption, the newspapers must maintain separate editorial and reporting staffs and produce separate newspapers (except in some cases, where the newspapers may produce a joint newspaper on Sundays). The purpose of this limited antitrust exemption is to preserve the editorial competition between local daily newspapers when one of the newspapers might otherwise exit the market. 15 U.S.C. § 1801 (NPA's preamble states "In the public interest of maintaining a newspaper press editorially and reportorially independent and competitive in all parts of the United States, it is hereby declared to be the public policy of the United States to preserve the publication of newspapers in any city, community or metropolitan area where a joint operating agreement has been heretofore entered into because of economic distress or is hereafter effected in accordance with the provisions of this chapter.") Thus, "a primary intent of the Newspaper Preservation Act was to promote the diversity of editorial voices among newspapers. " Committee for an Independent P-I v. Hearst Corp., 704 F.2d 467, 480 (9th Cir. 1983); see also 116 CONG. REC. 23,156 (1970) (Congressman Buchanan stating, "[t]he Newspaper Preservation Act is, in my judgment, urgently needed to assure the separate news and editorial voices in our Nation's newspapers. In this important sense it will preserve, rather than adversely affect, free competition.").
140. A JOA is a Faustian bargain whereby the newspapers obtain a limited immunity from the antitrust laws under the Newspaper Preservation Act (NPA), 15 U.S.C. § 1801 et seq. This exemption enables the local daily newspapers to combine business functions (such as advertising, sales, printing, and distribution). But, in exchange for this exemption, the newspapers must maintain separate editorial and reporting staffs and produce separate newspapers (except in some cases, where the newspapers may produce a joint newspaper on Sundays). The purpose of this limited antitrust exemption is to preserve the editorial competition between local daily newspapers when one of the newspapers might otherwise exit the market. 15 U.S.C. § 1801 (NPA's preamble states "In the public interest of maintaining a newspaper press editorially and reportorially independent and competitive in all parts of the United States, it is hereby declared to be the public policy of the United States to preserve the publication of newspapers in any city, community or metropolitan area where a joint operating agreement has been heretofore entered into because of economic distress or is hereafter effected in accordance with the provisions of this chapter.") Thus, "a primary intent of the Newspaper Preservation Act was to promote the diversity of editorial voices among newspapers. " Committee for an Independent P-I v. Hearst Corp., 704 F.2d 467, 480 (9th Cir. 1983); see also 116 CONG. REC. 23,156 (1970) (Congressman Buchanan stating, "[t]he Newspaper Preservation Act is, in my judgment, urgently needed to assure the separate news and editorial voices in our Nation's newspapers. In this important sense it will preserve, rather than adversely affect, free competition.").
141. Hawaii v. Gannett Pac. Corp., 99 F. Supp.2d 1241, 1249-50 (D. Haw.), aff'd, 203 F.3d 832 (9th Cir. 1999). In addition to depriving newspaper readers of free and open competition in the sale of daily newspapers and their differing editorial and reportorial voices, the termination of the JOA and closing of one of the newspapers would deprive advertisers of free and open competition in the market for the differentiated advertising audiences represented by the two local newspapers, and would deprive creators of news, editorial, and entertainment content of free and open competition for their output. Id. at 1250.
142. Hawaii v. Gannett Pac. Corp., 99 F. Supp.2d 1241, 1249-50 (D. Haw.), aff'd, 203 F.3d 832 (9th Cir. 1999). In addition to depriving newspaper readers of free and open competition in the sale of daily newspapers and their differing editorial and reportorial voices, the termination of the JOA and closing of one of the newspapers would deprive advertisers of free and open competition in the market for the differentiated advertising audiences represented by the two local
143. Id. at 1249.
144. Id. (citing Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940)). In contrast to Gannett, Judge Vaughn Walker in a JOA termination case involving the San Francisco Chronicle and Examiner gave little attention to its impact on the marketplace of ideas. Reilly v. Hearst Corp., 107 F. Supp.2d 1192 (N.D. Cal. 2000). The media industry, in his view, did not lend itself well to traditional antitrust analysis. Judge Walker believed that under the "old paradigm," a merger between San Francisco's two largest daily newspapers might well have posed an unquestionable threat of undue concentration. But that threat is less clear today. Id. at 1201. A new paradigm exists today where the Internet, television, radio, direct-mail and free dailies have the "actual and potential ability" to deprive the merging newspapers a significant level of business. Id. at 1200-01. Whether these alternative media can sufficiently replace the lost editorial competition between the historic newspaper rivals was left unanswered. This is surprising - especially given Judge Walker's reference to some questionable goings-on that came to light during the trial. During trial, evidence was presented that senior Hearst executives sought to suppress critical news stories about the transaction. See Reynolds Holding, Hearst Insisted Examiner Hold Story on Chronicle, S.F. CHRONICLE, June 9, 2000, at A1, available at 2000 WL 6484201. And the court found that Hearst offered "to 'horse trade' favorable editorial coverage of the mayor in return for [Mayor] Brown's support" of Hearst's acquisition of its traditional rival The San Francisco Chronicle. Reilly, 107 F. Supp.2d at 1207. How these other media under Judge Walker's new paradigm will prevent such diminution in quality (from self- censorship and horse trading) is not addressed.
145. Id. (citing Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940)). In contrast to Gannett, Judge Vaughn Walker in a JOA termination case involving the San Francisco Chronicle and Examiner gave little attention to its impact on the marketplace of ideas. Reilly v. Hearst Corp., 107 F. Supp.2d 1192 (N.D. Cal. 2000). The media industry, in his view, did not lend itself well to traditional antitrust analysis. Judge Walker believed that under the "old paradigm," a merger between San Francisco's two largest daily newspapers might well have posed an unquestionable threat of undue concentration. But that threat is less clear today. Id. at 1201. A new paradigm exists today where the Internet, television, radio, direct-mail and free dailies have the "actual and potential ability" to deprive the merging newspapers a significant level of business. Id. at 1200-01. Whether these alternative media can sufficiently replace the lost editorial competition between the historic newspaper rivals was left unanswered. This is surprising - especially given Judge Walker's reference to some questionable goings-on that came to light during the trial. During trial, evidence was presented that senior Hearst executives sought to suppress critical news stories about the transaction. See Reynolds Holding, Hearst Insisted Examiner Hold Story on Chronicle, S.F. CHRONICLE, June 9, 2000, at A1, available at 2000 WL 6484201. And the court found that Hearst offered "to 'horse trade' favorable editorial coverage of the mayor in return for [Mayor] Brown's support" of Hearst's acquisition of its traditional rival The San Francisco Chronicle. Reilly, 107 F. Supp.2d at 1207. How these other media under Judge Walker's new paradigm will prevent such diminution in quality (from self- censorship and horse trading) is not addressed.
146. Id. (citing Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940)). In contrast to Gannett, Judge Vaughn Walker in a JOA termination case involving the San Francisco Chronicle and Examiner gave little attention to its impact on the marketplace of ideas. Reilly v. Hearst Corp., 107 F. Supp.2d 1192 (N.D. Cal. 2000). The media industry, in his view, did not lend itself well to traditional antitrust analysis. Judge Walker believed that under the "old paradigm," a merger between San Francisco's two largest daily newspapers might well have posed an unquestionable threat of undue concentration. But that threat is less clear today. Id. at 1201. A new paradigm exists today where the Internet, television, radio, direct-mail and free dailies have the "actual and potential ability" to deprive the merging newspapers a significant level of business. Id. at 1200-01. Whether these alternative media can sufficiently replace the lost editorial competition between the historic newspaper rivals was left unanswered. This is surprising - especially given Judge Walker's reference to some questionable goings-on that came to light during the trial. During trial, evidence was presented that senior Hearst executives sought to suppress critical news stories about the transaction. See Reynolds Holding, Hearst Insisted Examiner Hold Story on Chronicle, S.F. CHRONICLE, June 9, 2000, at A1, available at 2000 WL 6484201. And the court found that Hearst offered "to 'horse trade' favorable editorial coverage of the mayor in return for [Mayor] Brown's support" of Hearst's acquisition of its traditional rival The San Francisco Chronicle. Reilly, 107 F. Supp.2d at 1207. How these other media under Judge Walker's new paradigm will prevent such diminution in quality (from self- censorship and horse trading) is not addressed.
147. Id. (citing Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940)). In contrast to Gannett, Judge Vaughn Walker in a JOA termination case involving the San Francisco Chronicle and Examiner gave little attention to its impact on the marketplace of ideas. Reilly v. Hearst Corp., 107 F. Supp.2d 1192 (N.D. Cal. 2000). The media industry, in his view, did not lend itself well to traditional antitrust analysis. Judge Walker believed that under the "old paradigm," a merger between San Francisco's two largest daily newspapers might well have posed an unquestionable threat of undue concentration. But that threat is less clear today. Id. at 1201. A new paradigm exists today where the Internet, television, radio, direct-mail and free dailies have the "actual and potential ability" to deprive the merging newspapers a significant level of business. Id. at 1200-01. Whether these alternative media can sufficiently replace the lost editorial competition between the historic newspaper rivals was left unanswered. This is surprising - especially given Judge Walker's reference to some questionable goings-on that came to light during the trial. During trial, evidence was presented that senior Hearst executives sought to suppress critical news stories about the transaction. See Reynolds Holding, Hearst Insisted Examiner Hold Story on Chronicle, S.F. CHRONICLE, June 9, 2000, at A1, available at 2000 WL 6484201. And the court found that Hearst offered "to 'horse trade' favorable editorial coverage of the mayor in return for [Mayor] Brown's support" of Hearst's acquisition of its traditional rival The San Francisco Chronicle. Reilly, 107 F. Supp.2d at 1207. How these other media under Judge Walker's new paradigm will prevent such diminution in quality (from self-censorship and horse trading) is not addressed.
148. See Community Publishers, Inc. v. Donrey Corp., 892 F. Supp. 1146 (W.D. Ark. 1995), aff'd, 139 F.3d 1180 (8th Cir. 1998) (ordering rescission of asset purchase agreement); United States v. Citizen Publ'g Co., 280 F. Supp. 978 (D. Ariz. 1968), aff'd, 394 U.S. 131 (1969) (ordering divestiture of acquired newspaper and modification of JOA); United States v. Times Mirror Co., 274 F. Supp. 606 (C.D. Cal. 1967), aff'd, 390 U.S. 712 (1968) (ordering complete divestiture).
149. See Community Publishers, Inc. v. Donrey Corp., 892 F. Supp. 1146 (W.D. Ark. 1995), aff'd, 139 F.3d 1180 (8th Cir. 1998) (ordering rescission of asset purchase agreement); United States v. Citizen Publ'g Co., 280 F. Supp. 978 (D. Ariz. 1968), aff'd, 394 U.S. 131 (1969) (ordering divestiture of acquired newspaper and modification of JOA); United States v. Times Mirror Co., 274 F. Supp. 606 (C.D. Cal. 1967), aff'd, 390 U.S. 712 (1968) (ordering complete divestiture).
150. See Community Publishers, Inc. v. Donrey Corp., 892 F. Supp. 1146 (W.D. Ark. 1995), aff'd, 139 F.3d 1180 (8th Cir. 1998) (ordering rescission of asset purchase agreement); United States v. Citizen Publ'g Co., 280 F. Supp. 978 (D. Ariz. 1968), aff'd, 394 U.S. 131 (1969) (ordering divestiture of acquired newspaper and modification of JOA); United States v. Times Mirror Co., 274 F. Supp. 606 (C.D. Cal. 1967), aff'd, 390 U.S. 712 (1968) (ordering complete divestiture).
151. See Community Publishers, Inc. v. Donrey Corp., 892 F. Supp. 1146 (W.D. Ark. 1995), aff'd, 139 F.3d 1180 (8th Cir. 1998) (ordering rescission of asset purchase agreement); United States v. Citizen Publ'g Co., 280 F. Supp. 978 (D. Ariz. 1968), aff'd, 394 U.S. 131 (1969) (ordering divestiture of acquired newspaper and modification of JOA); United States v. Times Mirror Co., 274 F. Supp. 606 (C.D. Cal. 1967), aff'd, 390 U.S. 712 (1968) (ordering complete divestiture).
152. See Community Publishers, Inc. v. Donrey Corp., 892 F. Supp. 1146 (W.D. Ark. 1995), aff'd, 139 F.3d 1180 (8th Cir. 1998) (ordering rescission of asset purchase agreement); United States v. Citizen Publ'g Co., 280 F. Supp. 978 (D. Ariz. 1968), aff'd, 394 U.S. 131 (1969) (ordering divestiture of acquired newspaper and modification of JOA); United States v. Times Mirror Co., 274 F. Supp. 606 (C.D. Cal. 1967), aff'd, 390 U.S. 712 (1968) (ordering complete divestiture).
153. See Community Publishers, Inc. v. Donrey Corp., 892 F. Supp. 1146 (W.D. Ark. 1995), aff'd, 139 F.3d 1180 (8th Cir. 1998) (ordering rescission of asset purchase agreement); United States v. Citizen Publ'g Co., 280 F. Supp. 978 (D. Ariz. 1968), aff'd, 394 U.S. 131 (1969) (ordering divestiture of acquired newspaper and modification of JOA); United States v. Times Mirror Co., 274 F. Supp. 606 (C.D. Cal. 1967), aff'd, 390 U.S. 712 (1968) (ordering complete divestiture).
154. Community Publishers, 892 F. Supp at 1156-57 (collecting cases); see also Times-Picayune Publ'g Co. v. United States, 345 U.S. 594, 610 (1953) ("[E]very newspaper is a dual trader in separate though interdependent markets; it sells the paper's news and advertising content to its readers; in effect that readership is in turn sold to the buyers of advertising space.") (case concerned solely advertising market).
155. Community Publishers, 892 F. Supp at 1156-57 (collecting cases); see also Times-Picayune Publ'g Co. v. United States, 345 U.S. 594, 610 (1953) ("[E]very newspaper is a dual trader in separate though interdependent markets; it sells the paper's news and advertising content to its readers; in effect that readership is in turn sold to the buyers of advertising space.") (case concerned solely advertising market).
156. See Community Publishers, 892 F. Supp. at 1179; Citizen Publ'g, 280 F. Supp. at 993-94; Times Mirror, 274 F. Supp. at 623-24.
157. See Community Publishers, 892 F. Supp. at 1179; Citizen Publ'g, 280 F. Supp. at 993-94; Times Mirror, 274 F. Supp. at 623-24.
158. See Community Publishers, 892 F. Supp. at 1179; Citizen Publ'g, 280 F. Supp. at 993-94; Times Mirror, 274 F. Supp. at 623-24.
159. House Debate, 81st Cong., 1st Sess., Aug. 15, 1949, reprinted in 4 KINTNER, supra note 46, at 3481 (statement of Rep. Celler).
160. FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 800 n.18 (1978) (citing Associated Press v. United States, 326 U.S. 1 (1945); Lorain Journal Co. v. United States, 342 U.S. 143 (1951); Citizen Publ'g Co. v. United States, 394 U.S. 131, 139-40 (1969); United States v. Radio Corp. of Am., 358 U.S. 334, 351-52 (1959)). But since the FCC in National Citizens relied "primarily on First Amendment rather than antitrust considerations," the fact that the antitrust laws were fully applicable to newspapers was not a complete answer to the issues in that case. National Citizens, 436 U.S. at 800 n.18. The marketplace of ideas also arose in other media industries, such as motion pictures. In United States v. Paramount Pictures, 334 U.S. 131 (1948), the Court had "no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." Id. at 166. The Court stated that First Amendment issue "would be focused here if we had any question concerning monopoly in the production of moving pictures." Id. But because monopoly in production was eliminated as an issue, the Court did not have to include the marketplace of ideas in its analysis. Id.
161. FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 800 n.18 (1978) (citing Associated Press v. United States, 326 U.S. 1 (1945); Lorain Journal Co. v. United States, 342 U.S. 143 (1951); Citizen Publ'g Co. v. United States, 394 U.S. 131, 139-40 (1969); United States v. Radio Corp. of Am., 358 U.S. 334, 351-52 (1959)). But since the FCC in National Citizens relied "primarily on First Amendment rather than antitrust considerations," the fact that the antitrust laws were fully applicable to newspapers was not a complete answer to the issues in that case. National Citizens, 436 U.S. at 800 n.18. The marketplace of ideas also arose in other media industries, such as motion pictures. In United States v. Paramount Pictures, 334 U.S. 131 (1948), the Court had "no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." Id. at 166. The Court stated that First Amendment issue "would be focused here if we had any question concerning monopoly in the production of moving pictures." Id. But because monopoly in production was eliminated as an issue, the Court did not have to include the marketplace of ideas in its analysis. Id.
162. FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 800 n.18 (1978) (citing Associated Press v. United States, 326 U.S. 1 (1945); Lorain Journal Co. v. United States, 342 U.S. 143 (1951); Citizen Publ'g Co. v. United States, 394 U.S. 131, 139-40 (1969); United States v. Radio Corp. of Am., 358 U.S. 334, 351-52 (1959)). But since the FCC in National Citizens relied "primarily on First Amendment rather than antitrust considerations," the fact that the antitrust laws were fully applicable to newspapers was not a complete answer to the issues in that case. National Citizens, 436 U.S. at 800 n.18. The marketplace of ideas also arose in other media industries, such as motion pictures. In United States v. Paramount Pictures, 334 U.S. 131 (1948), the Court had "no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." Id. at 166. The Court stated that First Amendment issue "would be focused here if we had any question concerning monopoly in the production of moving pictures." Id. But because monopoly in production was eliminated as an issue, the Court did not have to include the marketplace of ideas in its analysis. Id.
163. FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 800 n.18 (1978) (citing Associated Press v. United States, 326 U.S. 1 (1945); Lorain Journal Co. v. United States, 342 U.S. 143 (1951); Citizen Publ'g Co. v. United States, 394 U.S. 131, 139-40 (1969); United States v. Radio Corp. of Am., 358 U.S. 334, 351-52 (1959)). But since the FCC in National Citizens relied "primarily on First Amendment rather than antitrust considerations," the fact that the antitrust laws were fully applicable to newspapers was not a complete answer to the issues in that case. National Citizens, 436 U.S. at 800 n.18. The marketplace of ideas also arose in other media industries, such as motion pictures. In United States v. Paramount Pictures, 334 U.S. 131 (1948), the Court had "no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." Id. at 166. The Court stated that First Amendment issue "would be focused here if we had any question concerning monopoly in the production of moving pictures." Id. But because monopoly in production was eliminated as an issue, the Court did not have to include the marketplace of ideas in its analysis. Id.
164. FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 800 n.18 (1978) (citing Associated Press v. United States, 326 U.S. 1 (1945); Lorain Journal Co. v. United States, 342 U.S. 143 (1951); Citizen Publ'g Co. v. United States, 394 U.S. 131, 139-40 (1969); United States v. Radio Corp. of Am., 358 U.S. 334, 351-52 (1959)). But since the FCC in National Citizens relied "primarily on First Amendment rather than antitrust considerations," the fact that the antitrust laws were fully applicable to newspapers was not a complete answer to the issues in that case. National Citizens, 436 U.S. at 800 n.18. The marketplace of ideas also arose in other media industries, such as motion pictures. In United States v. Paramount Pictures, 334 U.S. 131 (1948), the Court had "no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." Id. at 166. The Court stated that First Amendment issue "would be focused here if we had any question concerning monopoly in the production of moving pictures." Id. But because monopoly in production was eliminated as an issue, the Court did not have to include the marketplace of ideas in its analysis. Id.
165. FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 800 n.18 (1978) (citing Associated Press v. United States, 326 U.S. 1 (1945); Lorain Journal Co. v. United States, 342 U.S. 143 (1951); Citizen Publ'g Co. v. United States, 394 U.S. 131, 139-40 (1969); United States v. Radio Corp. of Am., 358 U.S. 334, 351-52 (1959)). But since the FCC in National Citizens relied "primarily on First Amendment rather than antitrust considerations," the fact that the antitrust laws were fully applicable to newspapers was not a complete answer to the issues in that case. National Citizens, 436 U.S. at 800 n.18. The marketplace of ideas also arose in other media industries, such as motion pictures. In United States v. Paramount Pictures, 334 U.S. 131 (1948), the Court had "no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." Id. at 166. The Court stated that First Amendment issue "would be focused here if we had any question concerning monopoly in the production of moving pictures." Id. But because monopoly in production was eliminated as an issue, the Court did not have to include the marketplace of ideas in its analysis. Id.
166. FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 800 n.18 (1978) (citing Associated Press v. United States, 326 U.S. 1 (1945); Lorain Journal Co. v. United States, 342 U.S. 143 (1951); Citizen Publ'g Co. v. United States, 394 U.S. 131, 139-40 (1969); United States v. Radio Corp. of Am., 358 U.S. 334, 351-52 (1959)). But since the FCC in National Citizens relied "primarily on First Amendment rather than antitrust considerations," the fact that the antitrust laws were fully applicable to newspapers was not a complete answer to the issues in that case. National Citizens, 436 U.S. at 800 n.18. The marketplace of ideas also arose in other media industries, such as motion pictures. In United States v. Paramount Pictures, 334 U.S. 131 (1948), the Court had "no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." Id. at 166. The Court stated that First Amendment issue "would be focused here if we had any question concerning monopoly in the production of moving pictures." Id. But because monopoly in production was eliminated as an issue, the Court did not have to include the marketplace of ideas in its analysis. Id.
167. Associated Press, 52 F. Supp. at 373.
168. As one critic surmised, "[b]ecause they respond to the demands of competitors, labor unions, and other well-organized groups having a stake in stopping mergers that promise to increase economic efficiency, the antitrust authorities all too often succeed, not in keeping prices from rising, but in keeping them from falling." William Shughart II, The Government's War on Mergers: The Fatal Conceit of Antitrust Policy, Cato Policy Analysis No. 323 (Oct. 22, 1998).
169. Associated Press, 326 U.S. at 51-52 (Murphy, J., dissenting).
170. One may indirectly pay via prices affected by the advertised products. For example, the consumer may indirectly pay for a program by purchasing the advertised product, or other products the prices of which are affected by the prices of advertised products. But is advertising competition a good proxy for the marketplace of ideas? No doubt there is some relationship between the two: a highly rated program, such as 60 Minutes, may command higher advertising rates. But advertising rates, which are determined in part by the ability to reach a targeted demographic group, may be influenced by competition outside the marketplace of ideas, such as direct mail and billboards. Thus, an acquisition may substantially lessen competition on the marketplace of ideas, but not advertising rates and vice versa. Also, if all the broadcast networks combined their news operations, but each determined its own advertising rates, the nightly news might still be aired for free, and the ad rates migh remain unchanged, but the nonprice editorial competition would be substantially lessened
171. 415 U.S. 486, 501 (1974).
172. Id. at 498 (quoting Brown Shoe Co. v. United States, 370 U.S. at 322 n.38); see also Horizontal Merger Guidelines, supra note 4, § 1.521.
173. Time Warner Entm't Co. v. FCC, 240 F.3d 1126, 1135 (D.C. Cir. 2001) (citation omitted).
174. See, e.g., Daniel L. Brenner, Ownership and Content Regulation in Merging and Emerging Media, 45 DEPAUL L. REV. 1009, 1017 & n.56 (1996) (citing Peter O. Steiner, Program Patterns and Preferences, and the Workability Competition in Radio Broadcasting, 66 Q.J. ECON. 194, 212-17 (1952)).
175. See, e.g., Daniel L. Brenner, Ownership and Content Regulation in Merging and Emerging Media, 45 DEPAUL L. REV. 1009, 1017 & n.56 (1996) (citing Peter O. Steiner, Program Patterns and Preferences, and the Workability Competition in Radio Broadcasting, 66 Q.J. ECON. 194, 212-17 (1952)).
176. But note that the pooling of resources could also lead to a suboptimal level of investment and other serious problems, as apparently happened in the November 2000 presidential election with Voter News Service, a consortium set up by five networks and AP to tabulate election results through exit polling and to convey the results to the six clients. See Joan Konner, James Risser & Ben Wattenberg, Television's Performance on Election Night 2000: A Report for CNN (Jan. 29, 2001).
177. See In re Revision of Radio Rules and Polices, 7 F.C.C. Rcd. 2755, 2774 (1992).
178. Brenner, supra note 121, at 1027.
179. If this were true, however, one would expect that the majority of First Amendment cases litigated before the Supreme Court would involve the media conglomerates. One would also expect that the ACLU and similar organizations would favor media mergers as a safeguard to the First Amendment. Yet, Burt Neuborne, a First Amendment scholar and former legal director of the ACLU, has argued that the First Amendment does not disable government from acting to prevent excessive media concentration. See Burt Neuborne, Media Concentration and Democracy, Panel Three Commentary, 1999 ANN. SURV. AM. L. 277, 277 (2000); Burt Neuborne, Toward a Democracy-Centered Reading of the First Amendment, 93 NW. U. L. REV. 1055, 1057 (1999) ; Burt Neuborne, First Amendment for the Rich?, THE NATION, Oct. 9, 2000, at 25.
180. If this were true, however, one would expect that the majority of First Amendment cases litigated before the Supreme Court would involve the media conglomerates. One would also expect that the ACLU and similar organizations would favor media mergers as a safeguard to the First Amendment. Yet, Burt Neuborne, a First Amendment scholar and former legal director of the ACLU, has argued that the First Amendment does not disable government from acting to prevent excessive media concentration. See Burt Neuborne, Media Concentration and Democracy, Panel Three Commentary, 1999 ANN. SURV. AM. L. 277, 277 (2000); Burt Neuborne, Toward a Democracy-Centered Reading of the First Amendment, 93 NW. U. L. REV. 1055, 1057 (1999) ; Burt Neuborne, First Amendment for the Rich?, THE NATION, Oct. 9, 2000, at 25.
181. If this were true, however, one would expect that the majority of First Amendment cases litigated before the Supreme Court would involve the media conglomerates. One would also expect that the ACLU and similar organizations would favor media mergers as a safeguard to the First Amendment. Yet, Burt Neuborne, a First Amendment scholar and former legal director of the ACLU, has argued that the First Amendment does not disable government from acting to prevent excessive media concentration. See Burt Neuborne, Media Concentration and Democracy, Panel Three Commentary, 1999 ANN. SURV. AM. L. 277, 277 (2000); Burt Neuborne, Toward a Democracy-Centered Reading of the First Amendment, 93 NW. U. L. REV. 1055, 1057 (1999) ; Burt Neuborne, First Amendment for the Rich?, THE NATION, Oct. 9, 2000, at 25.
182. Neil W. Averitt & Robert H. Lande, Consumer Sovereignty: A Unified Theory of Antitrust and Consumer Protection Law, 65 ANTITRUST L.J. 713, 715 (1997).
183. Id. at 752-53 (footnote omitted).
184. Id. The increasing concentration in the book publishing industry (where, according to one participant, five conglomerates control over 80 percent of book sales) has prompted some concern from within the industry. See ANDRE SCHIFFRIN, THE BUSINESS OF BOOKS: HOW INTERNATIONAL CONGLOMERATES TOOK OVER PUBLISHING AND CHANGED THE WAY WE READ (2000).
185. Averitt & Lande, supra note 126, at 753. Another approach has been to expand the concept of "market power" to account for not only microeconomic conceptions of market power but also the economic power derived from firm size. See Rudolph Peritz, Some Realism About Economic Power in a Time of Sectorial Change, 66 ANTITRUST L.J. 247 (1997).
186. Primetime 24 Joint Venture v. Nat'l Broad. Co., 219 F.3d 92, 103-04 (2d Cir. 2000).
187. Id. 132 See, e.g., Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 52 (1911) ("The evils which led to the public outcry against monopolies and to the final denial of the power to make them [include] [t]he danger of deterioration in quality of the monopolized article which it was deemed was the inevitable result[] of the monopolistic control over its production and sale."). See also FTC v. Superior Ct. Trial Lawyers Ass'n, 493 U.S. 411, 423-24 (1990) (antitrust laws serve to protect quality of legal advocacy); Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 695 (1978) (Sherman Act reflects legislative judgment that ultimately competition will not only produce lower prices, but also better goods and services).
188. Id. 132 See, e.g., Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 52 (1911) ("The evils which led to the public outcry against monopolies and to the final denial of the power to make them [include] [t]he danger of deterioration in quality of the monopolized article which it was deemed was the inevitable result[] of the monopolistic control over its production and sale."). See also FTC v. Superior Ct. Trial Lawyers Ass'n, 493 U.S. 411, 423-24 (1990) (antitrust laws serve to protect quality of legal advocacy); Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 695 (1978) (Sherman Act reflects legislative judgment that ultimately competition will not only produce lower prices, but also better goods and services).
189. Id. 132 See, e.g., Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 52 (1911) ("The evils which led to the public outcry against monopolies and to the final denial of the power to make them [include] [t]he danger of deterioration in quality of the monopolized article which it was deemed was the inevitable result[] of the monopolistic control over its production and sale."). See also FTC v. Superior Ct. Trial Lawyers Ass'n, 493 U.S. 411, 423-24 (1990) (antitrust laws serve to protect quality of legal advocacy); Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 695 (1978) (Sherman Act reflects legislative judgment that ultimately competition will not only produce lower prices, but also better goods and services).
190. A federal district court recently conceded that a defendant with an 80 to 95 percent market share displayed "few of the indicia economists associate with dominant market power." United States v. Franklin Elec. Co., 130 F. Supp.2d 1025, 1029 (W.D. Wis. 2000). The monopolist was unable to charge supracompetitive prices when it was the only player in the relevant market between 1988 and 1995. Id. at 1034-35. And its variable margins (net sales less variable costs) "were flat" during its period as a monopolist. Id. at 1029. But that did not end the court's inquiry. Instead, the district court was persuaded by the extensive evidence that the monopolist during that same time period "was not overly concerned about either making improvements in its product or providing excellent service" and enjoined a joint venture with the only competitor that subsequently emerged. Id. at 1035-36.
191. Federal Trade Commission and U.S. Department of Justice, Antitrust Guidelines for Collaborations Among Competitors § 3.33 (2000), available at http:(http://www.ftc.gov.os/2000/ 04/ftcdojguidelines.pdf [hereinafter Competitor Collaboration Guidelines].
192. Id. § 3.3 n.30.
193. See Horizontal Merger Guidelines, supra note 4, § 0.1 n.6 ("Sellers with market power also may lessen competition on dimensions other than price, such as product quality, service or innovation.").
194. "[F]acts cannot be ignored simply because present methods do not permit them to be described with full scientific rigor." Thomas B. Leary, Freedom as the Core Value of Antitrust in the New Millennium, 68 ANTITRUST L.J. 545, 556 (2000).
195. Horizontal Merger Guidelines, supra note 4, § 0.
196. 970 F. Supp. 1066 (D.D.C. 1997).
197. Id. at 1075-76, 1079-80; see also Jonathan B. Baker, Unilateral Competitive Effects Theories in Merger Analysis, ANTITRUST, Spring 1997, at 21, 25 (market shares may not capture likely post-merger price increase in mergers involving close substitutes among differentiated products); Carl Shapiro, Mergers with Differentiated Products, ANTITRUST, Spring 1996, at 23; Christopher A. Vellturo, Creating an Effective Diversion: Evaluating Mergers with Differentiated Products, ANTITRUST, Spring 1997, at 16 (reflecting on why mergers involving highly differentiated products often present antitrust issues that require a cautious consideration of "traditional (homogeneous product) Merger Guidelines analysis"); Peritz, supra note 129.
198. Associated Press, 52 F. Supp. at 372.
199. Id.
200. See Associated Press, 326 U.S. at 28 (Frankfurter, J., concurring).
201. Pitofsky, supra note 1. When asked his views on media mergers, FTC Chairman Pitofsky recommended reading his 1979 article. See Bryan Gruley, Pitofsky Will Test Marketplace of Ideas Theory in FTC's Review of Time Warner-Turner Deal, WALL ST. J., Oct. 9, 1995, at A14, available at 1995 WL 9903008.
202. Lawrence A. Sullivan, Economics and More Humanistic Disciplines: What Are the Sources of Wisdom for Antitrust?, 125 U. PA. L. REV. 1214, 1222-23 (1977). See also Eleanor M. Fox, Antitrust, Competitiveness, and the World Arena: Efficiencies and Failing Firms in Perspective, 64 ANTITRUST L.J. 725, 728-29 (1996) ("the competition system is a fundamental prong of a vision of political economy compatable with and likely to stabilize democratic institutions, as we are reminded by the democracy/free enterprise revolutions in Central Europe.").
203. Lawrence A. Sullivan, Economics and More Humanistic Disciplines: What Are the Sources of Wisdom for Antitrust?, 125 U. PA. L. REV. 1214, 1222-23 (1977). See also Eleanor M. Fox, Antitrust, Competitiveness, and the World Arena: Efficiencies and Failing Firms in Perspective, 64 ANTITRUST L.J. 725, 728-29 (1996) ("the competition system is a fundamental prong of a vision of political economy compatable with and likely to stabilize democratic institutions, as we are reminded by the democracy/free enterprise revolutions in Central Europe.").
204. Pitofsky, supra note 1, at 1051.
205. Comments by Sen. Orrin Hatch, available at http://www.senate.gov/~hatch/ press172.html.
206. "Section 7 of the Clayton Act was intended to arrest the anticompetitive effects of market power in their incipiency. The core question is whether a merger may substantially lessen competition, and necessarily requires a prediction of the merger's impact on competition, present and future. . . . The section can deal only with probabilities, not with certainties. . . . And there is certainly no requirement that the anticompetitive power manifest itself in anticompetitive action before § 7 can be called into play. If the enforcement of § 7 turned on the existence of actual anticompetitive practices, the congressional policy of thwarting such practices in their incipiency would be frustrated." FTC v. Procter & Gamble Co., 386 U.S. 568, 577 (1967).
207. S. REP. No. 102-92, at 32-33 (1991), 1992 U.S.C.C.A.N. at 1165-66.
208. S. REP. No. 102-92, at 32-33 (1991), 1992 U.S.C.C.A.N. at 1165-66.
209. Id.
210. Id.
211. The must-carry provisions of the 1992 Cable Act require a cable system with more than 300 subscribers and 12 channels to set aside up to one-third of its channels for local broadcast stations that request carriage. 47 U.S.C. § 534(b) (1) (B). This provision was the focus in the Supreme Court's decision in Turner, discussed above.
212. The subscriber limits provision directs the FCC to limit the number of subscribers a cable operator may reach. 47 U.S.C. § 533(f) (1) (A).
213. The channel occupancy provision directs the FCC to limit the number of channels on a cable system that may be devoted to video programming in which the operator has a financial interest. Id. § 533(f) (1) (B).
214. Time Warner Entm't v. United States, 211 F.3d 1313, 1317-18 (D.C. Cir. 2000),
215. cert. denied, 121 S. Ct. 1167 (2001) (citations omitted).
216. Id. at 1319-20.
217. See, e.g., ROBERT W. MCCHESNEY, RICH MEDIA, POOR DEMOCRACY: COMMUNICATION POLITICS IN DUBIOUS TIMES (1999); BEN H. BAGDIKIAN, THE MEDIA MONOPOLY (6th ed. 2000); Mark Crispin Miller, Can Viacom's Reporters Cover Viacom's Interests?, COLUM. JOURNALISM REV., Nov./Dec. 1999, at 50.
218. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (footnote omitted); see also Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (distinguishing prior cases, which "involve[d] no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold.").
219. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (footnote omitted); see also Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (distinguishing prior cases, which "involve[d] no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold.").
220. Miami Herald, 418 U.S. at 261 (White, J., concurring).
221. Nicholas Johnson, The Media Barons and the Public Interest: An FCC Commissioner's Warning, ATLANTIC MONTHLY, June 1968, available at http://www.theatlantic.com/ unbound/flashbks/media/johnsonf.htm.
222. Id.
223. Id.
224. Id.
225. Pub. L. 104-104, 110 Stat. 56 (codified in scattered sections of Titles 15, 18 & 47 of the United States Code (West Supp. 1997)).
226. Telecommunications Act of 1996, S. REP. No. 104-230 (1996), available at 1996 WL 54191, at *1.
227. As Rep. Gilchrest stated, "with the advent of the information age, we need to recognize the need for competition among information media so that the free marketplace of ideas can be communicated through a free marketplace of information outlets. This bill seeks to exploit the market's ability to maximize quality, maximize consumer choice, and minimize prices." 142 CONG. REC. H1175.
228. Consolidation in Telecommunications Industry - Senator Metzenbaum's Views, 7 Trade Reg. Rep. (CCH) ¶ 50,126.
229. Id.
230. Leflore Broad. Co. v. FCC, 636 F.2d 454, 458 n.26 (D.C. Cir. 1980) (citing Bazelon, The First Amendment and the "New Media" New Directions in Regulating Telecommunications, 31 FED. COMMUN. L.J. 212-13 (1979)).
231. Leflore Broad. Co. v. FCC, 636 F.2d 454, 458 n.26 (D.C. Cir. 1980) (citing Bazelon, The First Amendment and the "New Media" New Directions in Regulating Telecommunications, 31 FED. COMMUN. L.J. 212-13 (1979)).
232. 142 CONG. REC. H1145 (statement of Rep. Conyers).
233. Section 601(b) (1) of the Telecommunications Act of 1996, reprinted in 47 U.S.C. § 152, Historical and Statutory Notes.
234. The continued importance of the antitrust laws in the media industry was also mentioned by President Clinton in signing the 1996 Act: "This clause ensures that even for activities allowed under or required by the legislation, or activities resulting from FCC rulemakings or orders, the antitrust laws continue to apply fully." President Clinton's Remarks on Signing The Telecommunications Act of 1996, Feb. 8, 1996, at 13. Likewise, Rep. Conyers described the antitrust savings clause as "all-important" since it ensures that "any and all telecommunications merger and anticompetitive activities are fully subject to the antitrust laws. Telco-cable mergers and all other broadcast, media, or telecommunications transactions will be fully subject to antitrust review, regardless of how they are treated under the bill or the FCC." 142 CONG. REC. H1171 (statement of Rep. Conyers).
235. 47 U.S.C. § 221 (a) (repealed by Telecommunications Act of 1996, Pub. L. 104-104, Title VI, § 601 (b) (2), Feb. 8, 1996, 110 Stat. 143).
236. 47 U.S.C. § 313(a).
237. 47 U.S.C. § 221(a) (repealed 1996).
238. Id.
239. S. REP. No. 104-230 (1996), available at 1996 WL 54191, at *450.
240. Id.
241. Id. at *442.
242. FCC: Chairman Leery of Antitrust Duties, CHI. TRIB., Mar. 29, 2001, at 2, available at 2001 WL 4056462. Commissioner Powell also noted that the FCC lacks the antitrust expertise. See Opening Statement of Michael K. Powell, FCC Commissioner, Before the Subcommittee on Telecommunications, Trade and Consumer Protection of the House Committee on Commerce, Mar. 17, 1999. Moreover, this has been the FCC's position since at least the 1940s. See Nat'l Broad. Co. v. United States, 319 U.S. 190, 223-24 (1943) (quoting 1941 FCC report that it is not FCC's function to apply the antitrust laws to questionable network practices); United States v. Radio Corp. of Am., 358 U.S. 334, 350 n.18 (1959).
243. 47 U.S.C. § 307 (a).
244. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 394 (1969) ("Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them.") (citing 47 U.S.C. § 301).
245. Id. at 394-95 (quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 137-38 (1940)).
246. See FCC v. National Citizens Comm. for Broad., 436 U.S. 775, 800 n.18 (1978).
247. Id. at 795.
248. United States v. Radio Corp. of Am., 358 U.S. 334, 351-52 (1959).
249. Application of WorldCom, Inc. and MCI Communications Corp. for Transfer of Control of MCI Communications Corp. to WorldCom, Inc., Memorandum Opinion and Order, FCC 98-225 ¶ 9 (1998).
250. Id.
251. See National Citizens, 436 U.S. at 795-96 (noting that the Commission may properly consider antitrust issues and collecting cases); Radio Corp. of Am., 358 U.S. at 351-52 (observing that in certain cases the Commission may find that antitrust considerations alone would prevent the public interest standard from being satisfied); FCC v. RCA Comm., Inc., 346 U.S. 86, 94 (1953) (noting that "[t]here can be no doubt that competition is a relevant factor in weighing the public interest"); Nat'l Broad. Co. v. United States, 319 U.S. 190, 222-23 (1943) (holding that the Commission may consider the effect of a broadcast license applicant's anticompetitive conduct on the public interest). In Radio Corp. of America, 358 U.S. at 346, Chief Justice Warren held that FCC approval of a media transaction under its public interest standard does not bar the antitrust agencies from attacking the transaction under the antitrust laws. The legislative history of the Communications Act of 1934 revealed that the FCC was "not given the power to decide antitrust issues as such, and that Commission action was not intended to prevent enforcement of the antitrust laws in federal courts." Id.
252. See National Citizens, 436 U.S. at 795-96 (noting that the Commission may properly consider antitrust issues and collecting cases); Radio Corp. of Am., 358 U.S. at 351-52 (observing that in certain cases the Commission may find that antitrust considerations alone would prevent the public interest standard from being satisfied); FCC v. RCA Comm., Inc., 346 U.S. 86, 94 (1953) (noting that "[t]here can be no doubt that competition is a relevant factor in weighing the public interest"); Nat'l Broad. Co. v. United States, 319 U.S. 190, 222-23 (1943) (holding that the Commission may consider the effect of a broadcast license applicant's anticompetitive conduct on the public interest). In Radio Corp. of America, 358 U.S. at 346, Chief Justice Warren held that FCC approval of a media transaction under its public interest standard does not bar the antitrust agencies from attacking the transaction under the antitrust laws. The legislative history of the Communications Act of 1934 revealed that the FCC was "not given the power to decide antitrust issues as such, and that Commission action was not intended to prevent enforcement of the antitrust laws in federal courts." Id.
253. See National Citizens, 436 U.S. at 795-96 (noting that the Commission may properly consider antitrust issues and collecting cases); Radio Corp. of Am., 358 U.S. at 351-52 (observing that in certain cases the Commission may find that antitrust considerations alone would prevent the public interest standard from being satisfied); FCC v. RCA Comm., Inc., 346 U.S. 86, 94 (1953) (noting that "[t]here can be no doubt that competition is a relevant factor in weighing the public interest"); Nat'l Broad. Co. v. United States, 319 U.S. 190, 222-23 (1943) (holding that the Commission may consider the effect of a broadcast license applicant's anticompetitive conduct on the public interest). In Radio Corp. of America, 358 U.S. at 346, Chief Justice Warren held that FCC approval of a media transaction under its public interest standard does not bar the antitrust agencies from attacking the transaction under the antitrust laws. The legislative history of the Communications Act of 1934 revealed that the FCC was "not given the power to decide antitrust issues as such, and that Commission action was not intended to prevent enforcement of the antitrust laws in federal courts." Id.
254. See National Citizens, 436 U.S. at 795-96 (noting that the Commission may properly consider antitrust issues and collecting cases); Radio Corp. of Am., 358 U.S. at 351-52 (observing that in certain cases the Commission may find that antitrust considerations alone would prevent the public interest standard from being satisfied); FCC v. RCA Comm., Inc., 346 U.S. 86, 94 (1953) (noting that "[t]here can be no doubt that competition is a relevant factor in weighing the public interest"); Nat'l Broad. Co. v. United States, 319 U.S. 190, 222-23 (1943) (holding that the Commission may consider the effect of a broadcast license applicant's anticompetitive conduct on the public interest). In Radio Corp. of America, 358 U.S. at 346, Chief Justice Warren held that FCC approval of a media transaction under its public interest standard does not bar the antitrust agencies from attacking the transaction under the antitrust laws. The legislative history of the Communications Act of 1934 revealed that the FCC was "not given the power to decide antitrust issues as such, and that Commission action was not intended to prevent enforcement of the antitrust laws in federal courts." Id.
255. See National Citizens, 436 U.S. at 795-96 (noting that the Commission may properly consider antitrust issues and collecting cases); Radio Corp. of Am., 358 U.S. at 351-52 (observing that in certain cases the Commission may find that antitrust considerations alone would prevent the public interest standard from being satisfied); FCC v. RCA Comm., Inc., 346 U.S. 86, 94 (1953) (noting that "[t]here can be no doubt that competition is a relevant factor in weighing the public interest"); Nat'l Broad. Co. v. United States, 319 U.S. 190, 222-23 (1943) (holding that the Commission may consider the effect of a broadcast license applicant's anticompetitive conduct on the public interest). In Radio Corp. of America, 358 U.S. at 346, Chief Justice Warren held that FCC approval of a media transaction under its public interest standard does not bar the antitrust agencies from attacking the transaction under the antitrust laws. The legislative history of the Communications Act of 1934 revealed that the FCC was "not given the power to decide antitrust issues as such, and that Commission action was not intended to prevent enforcement of the antitrust laws in federal courts." Id.
256. 142 CONG. REC. H1158 (statement of Rep. Hyde).
257. Id.
258. Id.
259. Lili Levi, Reflections on the FCC's Recent Approach to Structural Regulation of the Electronic Mass Media, 52 FED. COMM. L.J. 581, 582-84 (2000).
260. 47 C.F.R. § 3.3555 (a) (1).
261. 436 U.S. 775 (1978).
262. Id. at 787.
263. Id. at 814-15.
264. Id. at 815.
265. Id. at 789. (The United States, represented by the Antitrust Division, had been made a respondent pursuant to 28 U.S.C. ¶¶ 2344 & 2348.)
266. See, e.g., Radio Corp. of Am., 358 U.S. at 350 n.18 (stating that while the FCC may den applications under its public interest standard where antitrust violations exist, "its approval of transactions which might involve Sherman Act violations is not a determination that the Sherman Act has not been violated, and therefore cannot forestall the United States from subsequently challenging those transactions.").
267. 142 CONG. REC. H1172 (statement of Rep. Conyers).
268. See Remarks of Senator Paul Wellstone on the Acquisition of CBS by Viacom Before the Senate Judiciary Committee Subcommittee on Antitrust, Business Rights, and Competition (Oct. 28, 1999), available at http://www.senate.gov/~wellstone/On_the_Record/Floor_ Statements/Floor_Statements-1999/cbsmerger2.htm.
269. Turner II, 520 U.S. at 225 (Stevens, J., concurring).
270. Id. at 189.
271. Id. at 222-23.
272. Id. at 223.
273. Id. at 207-08.
274. Associated Press, 52 F. Supp. at 370.
275. If new legislation is considered for the media industry, a survey by Oxford University, available at http://www.medialaw.ru/epages/laws/ero_union/e-conc.htm, on the European principles of media ownership regulation and transparency may be of interest. The purpose of this survey was to assist a working group of Russian media law experts in the drafting of a policy recommendation on media ownership. The survey outlines 12 key policy instruments used to control media market concentration and those effecting ownership in media markets in Europe: (1) General competition law and specific provisions under competition law directed towards the media; (2) regulating media and telecommunications operators through licensing of national services; (3) requiring the promotion of media pluralism as a pre-requisite to license-issuing; (4) lowering entry barriers to markets through legal decisions and economic incentives (tax relief, financial assistance); (5) promoting media which are seen to provide diversity of content or represent minority views; (6) providing financial assistance to content providers providing a variety of content; (7) guaranteeing the high quality and availability of public service broadcasting (by instituting "must-carry" rules on cable, satellite and digital providers); (8) adopting legal instruments to safeguard editorial independence and freedom of expression; (9) requiring high transparency of company reports and activities; (10) monitoring ownership patterns in media markets and making this information publicly available; (11) ensuring open network and universal service for Internet users; and (12) preventing gateway monopolies of new services.
276. Hawaii v. Gannett Pac. Corp., 99 F. Supp.2d 1241, 1253-54 (D. Haw.),
277. Pitofsky, supra note 1, at 1074.
278. Brown Shoe Co. v. United States, 370 U.S. 294, 344 (1962); see also Wesley A. Cann, Jr., Section 7 of the Clayton Act and the Pursuit of Economic 'Objectivity': Is There Any Role for Social and Political Values in Merger Policy?, 60 NOTRE DAME L. REV. 273, 299-300 (1985) (citing cases where courts have recognized that competition and resulting efficiencies give way to other social values).
279. Brown Shoe Co. v. United States, 370 U.S. 294, 344 (1962); see also Wesley A. Cann, Jr., Section 7 of the Clayton Act and the Pursuit of Economic 'Objectivity': Is There Any Role for Social and Political Values in Merger Policy?, 60 NOTRE DAME L. REV. 273, 299-300 (1985) (citing cases where courts have recognized that competition and resulting efficiencies give way to other social values).
280. LOUIS BRANDEIS, THE CURSE OF BIGNESS 105 (1934) (quoted in United States v. Columbia Steel Co., 334 U.S. 495, 534-35 n.1 (1948) (Douglas, J., dissenting)).
281. See Horizontal Merger Guidelines, supra note 4, § 4.
282. Paddock Publ'ns, Inc. v. Chicago Trib. Co., 103 F.3d 42, 45 (7th Cir. 1996).
283. FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 460-61 (1986) (internal quotations and citations omitted); see also Toys "R" Us, Inc. v. FTC, 221 F.3d 928, 937 (7th Cir. 2000); Competitor Collaboration Guidelines, supra note 134, § 3.3 ("[W]here the likelihood of anticompetitive harm is evident from the nature of the agreement, or anticompetitive harm has resulted from an agreement already in operation, then, absent overriding benefits that could offset the anticompetitive harm, the Agencies challenge such agreements without a detailed market analysis.") (footnotes omitted).
284. FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 460-61 (1986) (internal quotations and citations omitted); see also Toys "R" Us, Inc. v. FTC, 221 F.3d 928, 937 (7th Cir. 2000); Competitor Collaboration Guidelines, supra note 134, § 3.3 ("[W]here the likelihood of anticompetitive harm is evident from the nature of the agreement, or anticompetitive harm has resulted from an agreement already in operation, then, absent overriding benefits that could offset the anticompetitive harm, the Agencies challenge such agreements without a detailed market analysis.") (footnotes omitted).
285. FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 460-61 (1986) (internal quotations and citations omitted); see also Toys "R" Us, Inc. v. FTC, 221 F.3d 928, 937 (7th Cir. 2000); Competitor Collaboration Guidelines, supra note 134, § 3.3 ("[W]here the likelihood of anticompetitive harm is evident from the nature of the agreement, or anticompetitive harm has resulted from an agreement already in operation, then, absent overriding benefits that could offset the anticompetitive harm, the Agencies challenge such agreements without a detailed market analysis.") (footnotes omitted).
286. Ball Mem'l Hosp. v. Mutual Hosp. Ins., 784 F.2d 1325, 1336 (7th Cir. 1986).
287. Great W. Directories, Inc. v. Southwestern Bell Tel. Co., 63 F.3d 1378, 1384 (5th Cir. 1995), amended, 74 F.3d 613 (5th Cir. 1996); see also Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d 182 (1st Cir. 1996).
288. Great W. Directories, Inc. v. Southwestern Bell Tel. Co., 63 F.3d 1378, 1384 (5th Cir. 1995), amended, 74 F.3d 613 (5th Cir. 1996); see also Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d 182 (1st Cir. 1996).
289. Great W. Directories, Inc. v. Southwestern Bell Tel. Co., 63 F.3d 1378, 1384 (5th Cir. 1995), amended, 74 F.3d 613 (5th Cir. 1996); see also Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d 182 (1st Cir. 1996).
290. Associated Press, 326 U.S. at 52-53 (Murphy, J., dissenting).
291. Time Warner Entm't v. United States, 211 F.3d 1313, 1322 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 1167 (2001).
292. Time Warner Entm't v. United States, 211 F.3d 1313, 1322 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 1167 (2001).
293. Id.
294. Time Warner Inc., Turner Broad. Sys., Inc., Tele-Communications, Inc., and Liberty Media Corp., Dkt. No. C-3709 (Feb. 3, 1997).
295. Statement of Chairman Pitofsky, and Commissioners Steiger and Varney in Time Warner Inc., Turner Broad. Sys. Inc., Tele-Communications, Inc., and Liberty Media Corp., Dkt. No. C-3709 (Feb. 3, 1997).
296. Letter to Brian P. Lamb, C-SPAN, from FTC Secretary Donald S. Clark, in response to Lamb's comment about the FTC's consent decree regarding the acquisition of Turner Broadcasting System, Inc. by Time Warner Inc., and Tele-Communications, Inc.'s and Liberty Media Corporation's Proposed Acquisitions of Interests in Time Warner, Dkt. No. C-3709 (Feb. 3, 1997). The FTC observed that courts have upheld against First Amendment challenge regulations specifically designed to address competitive concerns arising from vertically-integrated cable companies' monopoly control over distribution. What is also interesting is that the FTC abstained from determining which rival to CNN must be carried on the cable network. As the FTC noted, "In this case, there is even greater reason to avoid a more intrusive role, since programming content would be unavoidably implicated -the selection of one competitor over another inevitably determines to some degree the content of the new entry. In addition, excessive involvement in the selection process could conflict with the goal that the antitrust laws, and antitrust remedies, are intended to protect competition, not competitors." Statement of Chairman Pitofsky, and Commissioners Steiger and Varney in Time Warner Inc., Turner Broad. Sys. Inc., Tele-Communications, Inc., and Liberty Media Corp., Dkt. No. C-3709 (Feb. 3, 1997).
297. See Analysis of Proposed Consent Order to Aid Public Comment, America Online, Inc., and Time Warner Inc., Dkt. No. C-3989, available at http://www.ftc.gov/os/2000/12/ aolanalysis.pdf.
298. United States v. Philadelphia Nat'l Bank, 374 U.S. 321 (1963).