Defining a product market for spanish-language broadcast media: Lessons from united states v. univision communications, inc. and hispanic broadcasting

Communication Law and Policy

Volumn 15, Issue 1, 2009, Pages 55-89

  Amy, Jo Coffey ^a   Amy, Kristin Sanders ^b  

^a UNIVERSITY OF FLORIDA   (United States)

^b UNIVERSITY OF MINNESOTA   (United States)

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EID: 77951200650     PISSN: 10811680     EISSN: None     Source Type: Journal    
DOI: 10.1080/10811680903446232     Document Type: Article

References (249)

1. Hispanic Broadcasting Corporation (HBC) stations were the first-rated or secondrated stations in each of the top ten Hispanic markets, except forNew York, at the time of the merger. Letter Filed on Behalf of Spanish Broadcasting Systems to Marlene Dortch, Federal Communications Commission, MB Docket No. 02-235 (Aug. 22, 2003).
2. See also, e.g., Company News: Regulators Approve Univision Purchase, N.Y.TIMES, Sept. 23, 2003, at C4.
3. Stefanie Pillersdorf & Brooke Morganstein, Univision Completes Merger with Hispanic Broadcasting.
4. HBC's Radio Assets will Complement Univision's Television, Music and Internet Assets, BUS. WIRE, Sept. 23, 2003.
5. The company's Web site states: The integrated media company includes: the Univision Network, one of the top five broadcast networks in America regardless of language and the No. 1 Spanish-language broadcast television network; TeleFutura, the No. 2 Spanish-language broadcast television network in key dayparts; Galavisíon, the No. 1 Spanish-language cable network; the Univision Television Station Group with KMEX, the No. 1 television station in the country, regardless of language; Univision Radio, the No. 1 Spanish-language radio group; and Univision Interactive Media, which includes Univision.com, the No. 1 U.S. Spanish-language Internet destination, and Univision Ḿovil, the industry's most comprehensive Spanish-language suite of mobile offerings.
6. Univision, Company Overview, http://www.univision.net/corp/en/overview.jsp.
7. Ironically, two weeks prior to the Univision/HBC merger, the United States Court of Appeals for the Third Circuit issued a stay of the FCC's relaxed media ownership rules so it could examine the pace of media concentration and concerns about diversity. But, this did not deter the FCC from approving the deal.
8. See Prometheus Radio Project v. FCC, 2003 U.S. App. LEXIS 18390 (3d Cir. Sept. 3, 2003).
9. Joint Statement of Commissioners Jonathan S. Adelstein & Michael J. Copps, Federal Communications Commission, MB Docket No. 02-235 (Sept. 22, 2003), available at http://hraunfoss.fcc.gov/edocspublic/attachmatch/FCC-03-218A2.doc.
10. Letter from Federico Subervi, et al., to Marlene Dortch, Federal Communications Commission, MB DocketNo. 02-235 (July 16, 2003), available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6514286147.
11. See generally DAVID CROTEAU & WILLIAM HOYNES, THE BUSINESS OF MEDIA: CORPORATE MEDIA AND THE PUBLIC INTEREST (2001).
12. Memorandum Opinion and Order, FCC 03-218, at point 28, 12 (Sept. 22, 2003), available at http://hraunfoss.fcc.gov/edocspublic/attachmatch/FCC-03-218A1.doc
13. Id. at point 65, 27.
14. The dissenting commissioners stated, "Even though the bulk of the evidence suggests a separate productmarket, themajority has not compiled the necessary data, done the requisite outreach or performed the strenuous analysis that is required to reach a definitive conclusion."
15. Memorandum Opinion and Order, supra note 5, at 33 (Adelstein & Copps dissenting).
16. Department of Justice Antitrust Division, Competitive Impact Statement, United States v. Univision Commc'n Inc. & Hispanic Broad. Corp. (No. 03-0758), 2003 U.S. Dist. LEXIS 24294.
17. Commissioners Michael Powell, Kathleen Abernathy and Kevin Martin voted to approve the merger, with commissioners Jonathan Adelstein and Michael Copps dissenting.
18. Memorandum Opinion and Order, supra note 5.
19. Memorandum Opinion and Order, supra note 5.
20. Divestiture of two radio stations, in Houston and Albuquerque, was required in order to comply with radio ownership limits that were set under the 2002 Biennial Review Order.
21. If the newly merged company kept these two stations, it would have owned more than the legal limit of stations (AM/FM combinations) in each city. The new rules under the 2002 Biennial Review Order (issued in 2003) were stayed, but had they later gone into effect, the Department of Justice demanded the new company be in compliance.
22. Id. at 6.
23. Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir. 2004), cert. denied, 545 U.S. 1123 (2005).
24. The court stated that the FCC presented no justifiable or consistent rationale for raising ownership limits and challenged the Commission to re examine the process it used to establish such limits.
25. Id. at 420.
26. Joint Statement of Adelstein & Copps, supra note 4, at 6.
27. See Attachment D, Letter on behalf of Spanish Broadcasting System to Marlene H. Dortch, Federal Communications Commission, MB Docket No. 02-235 (Aug. 22, 2003), available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?nativeorpdf=pdf&iddocument=6514683926.
28. See Tim Dougherty, Merger Finally Gets Green Light: The Federal Communications Commission Votes Along Party Lines to Sanction Univision's Merger with Hispanic Broadcasting Corp., HISPANIC BUSINESS, Nov. 2003, at 72.
29. Statement of Commissioner Jonathan Adelstein, Federal Communications Commission, MB Docket No. 02-235, 3 (Sept. 22, 2003), available at http://hraunfoss.fcc.gov/edocspublic/attachmatch/DOC-239081A4.doc.
30. There are 44.3 million Hispanics in the United States, 78% of whom do not speak English at home. Of this group of 34.5 million Hispanics, just half speak English "very well."
31. U.S. Census Bureau, Facts for Features, available at http://www.census.gov/Press-Release/www/releases/archives/factsforfeaturesspecialeditions/010327.html.
32. See H.B. Shin & R. Bruno, Language Use and English Speaking Ability: 2000 (2003), available at http://www.census.gov/prod/2003pubs/c2kbr-29.pdf.
33. Id. at 10.
34. "Very well" is defined as "having no difficulty with English."
35. Id. at 2.
36. Press Release, U.S. Census Bureau, Nation's Population One-third Minority (July 28, 2009), available at http://www.census.gov/Press-Release/www/releases/archives/population/006808.html
37. See generally BEN BAGDIKIAN, MEDIA MONOPOLY (1983).
38. ROBERT MCCHESNEY, RICH MEDIA, POOR DEMOCRACY (1999).
39. See generally ALAN B. ALBARRAN, MEDIA ECONOMICS: UNDERSTANDING MARKETS, INDUSTRIES AND CONCEPTS (1996).
40. ROBERT PICARD, MEDIA ECONOMICS (1989).
41. See generally Changes in the Entertainment Formats of Broadcast Stations, 60 FCC 2d 858 (1976) (noting the government should play no role in dictating format choice, and that this determination should be made by market forces. The FCC found formats were the primary means for radio stations to compete, that these format differences were often too slight to be able to be monitored effectively, and that daily oversight or programming decisions of individual stations by the FCC would not be practical. The FCC also ruled that to withhold license transfers due to format or language would be questionable under the First Amendment as well as the Communications Act.).
42. See also WNCN Listeners Guild v. FCC, 450 U.S. 582 (1981).
43. 15 U.S.C. §§1-3 (2008).
44. 15 U.S.C. §12 (2008).
45. See Department of Justice Horizontal Merger Guidelines §0.1 Purpose and Underlying Policy Assumptions of the Guidelines (1997).
46. See, e.g., Harold Furchgott-Roth, FCC Commissioner, The Communications Marketplace: Antitrust and Regulatory Issues, Speech to American Law Institute - American Bar Association (Oct. 5, 2000), available at http://www.fcc.gov/Speeches/FurchtgottRoth/2000/sphfr012.html.
47. Tyler Savery, A Timeline for the Sirius-XM Satellite Radio Merger, SEEKING ALPHA, July 12, 2007, available at http://seekingalpha.com/article/40847-a-timeline-for-the-sirius-xm-satellite-radio-merger.
48. Department of Justice Horizontal Merger Guidelines §0.2 Overview (1997).
49. See Harold Feld, The Increased Need for FCC Merger Review in a Networked World, MEDIA ACCESS PROJECT, Oct. 4, 2001, at 1, available at http://arxiv.org/ftp/cs/papers/0110/0110017.pdf.
50. 15 U.S.C. §21(a) (2008)
51. ("Authority to enforce compliance with sections 13, 14, 18, and 19 of this title by the persons respectively subject thereto is vested in the Surface Transportation Board where applicable to common carriers subject to jurisdiction under subtitle IV of title 49; in the Federal Communications Commission where applicable to common carriers engaged in wire or radio communication or radio transmission of energy.").
52. 47 U.S.C. §214 (2008).
53. 47 U.S.C. §310(d) (2008) ("No construction permit or station license, or any rights thereunder, shall be transferred, assigned, or disposed of in any manner, voluntarily or involuntarily, directly or indirectly, or by transfer of control of any corporation holding such permit or license, to any person except upon application to the Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby.").
54. General Counsel Christopher J. Wright, Introducing the Transactions Team Presentation on Timely Consideration of the Applications Accompanying Mergers (Mar. 1, 2000), available at http://www.fcc.gov/Speeches/misc/statements/wright030100.doc.
55. STUART M. BENJAMIN ET AL., TELECOMMUNICATIONS LAW AND POLICY 796 (2001).
56. Joint Statement of Adelstein & Copps, supra note 4, at 1-2.
57. See Letter from Federico Subervi, supra note 4.
58. See generally MARK LLOYD & PHILIP M. NAPOLI, LOCAL MEDIA DIVERSITY MATTERS: MEASURE MEDIA DIVERSITY ACCORDING TO DEMOCRATIC VALUES, NOT MARKET VALUES (2007).
59. PHILIP M. NAPOLI, MEDIA DIVERSITY AND LOCALISM: MEANING AND METRICS (2006).
60. Although at least one scholar has argued there are minimal barriers to entry into these markets for incumbent English-language broadcasters, it can hardly be said that inviting San Antonio-based Clear Channel or other English-language behemoths to gain similar market power in Spanish language markets is really the answer to protecting localism, diversity and the public interest.
61. See Catherine J.K. Sandoval, Antitrust Language Barriers: First Amendment Constraints on Defining an Antitrust Market by a Broadcast's Language and its Implications for Audiences, Competition and Democracy, 60 FED. COMM. L.J. 407 (2008).
62. For example, as evidence of its commitment to localism, Clear Channel in a report to the FCC cited the fact that in Albany, N.Y., where Clear Channel owns five FM and two AM stations, it airs "Clear View," a weekly half-hour program that highlights community organizations and their positive impact on the community.
63. See Federal Communications Commission, MB Docket No. 04-233, Report on Broadcast Localism and Notice of Proposed Rulemaking 18, available at http://www.lermansenter.com/assets/attachments/Broadcast_Localism_NPRM_(FCC-07-218).pdf.
64. Federico Subervi & Teresa Correa, Assessing the Diversity of News Voices in the Latino-oriented Broadcast Media in Central Texas 26 (2008) (unpublished paper presented at the annual conference of the Association for Education in Journalism and Mass Communication, Chicago, Ill.).
65. See Radio and Records, Ratings: San Antonio, available at http://www.radioandrecords.com/RRRatings, under "San Antonio."
66. The four Hispanic Broadcasting Corp stations acquired by Univision in the merger were KXTN-FM, KROM-FM, KCOR-FM and KCOR-AM, which are ranked first, second, fourth, and fifth, respectively, in San Antonio's market rankings and total 73.6% of market revenue share.
67. See Attachment B, Letter on behalf of Spanish Broadcasting System to Marlene H. Dortch, Federal Communications Commission, MB Docket No. 02-235 (Aug. 22, 2003), available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6514683926.
68. Communications Act of 1934, 47 U.S.C. §151 (2008).
69. Federico Subervi and Teresa Correa note that one station (KCOR-AM/FM) airs three "one-minute capsules" of national and international news daily. However, this is the only documented Spanish-language radio news programming in the San Antonio market, with no local news programming whatsoever.
70. Subervi & Correa, supra note 40, at 23, 26.
71. Department of Justice, Complaint for Injunctive Relief, United States v. Univision Communications Inc. and Hispanic Broadcasting, No. 03 0758 (D.D.C. Mar. 26, 2003), available at http://www.usdoj.gov/atr/cases/f200800/200878.htm.
72. Department of Justice Competitive Impact Statement, United States v. Univision Communications, Inc. and Hispanic Broadcasting Corp., No. 03-00758 (D.D.C. 2003), available at http://www.usdoj.gov/atr/cases/f201000/201006/htm.
73. Response to Public Comments on the Proposed Final Judgment in United States v. Univision Communications, Inc., 68 Fed. Reg. 66,855 (Nov. 28, 2003).
74. The "SSNIP test," used by the courts and government agencies, originated with the Horizontal Merger Guidelines. It asks whether such a price increase "would cause enough buyers to shift to other products so that the increase would be unprofitable for the hypothetical monopolist."
75. Horizontal Merger Guidelines, supra note 27, at §10.
76. Response to Public Comments on the Proposed Final Judgment in United States v. Univision Communications, Inc., 68 Fed. Reg. 66,855 (Nov. 28, 2003).
77. Department of Justice Competitive Impact Statement, United States v. Univision Communications, Inc. and Hispanic Broadcasting Corp., No. 03-00758 (D.D.C. 2003), available at http://www.usdoj.gov/atr/cases/f201000/201006/htm.
78. Before the merger, Univision owned about 30% of Entravision, which operates Spanish-language television and radio stations. To minimize competitive effects toward the acquired HBC radio stations, Univision had to divest some Entravision stations, as well as surrender its shares and its position on Entravision's board of directors. Univision and HBC radio stations could be co-located in a particular city, as long as radio ownership limits were not violated
79. Response to Public Comments on the Proposed Final Judgment in United States v. Univision Communications, Inc., 68 Fed. Reg. 66,855 (Nov. 28, 2003).
80. Department of Justice, Complaint for Injunctive Relief, United States v. Univision Communications, Inc. and Hispanic Broadcasting, No. 03 0758 (Mar. 26, 2003), available at http://www.usdoj.gov/atr/cases/f200800/200878.htm.
81. Department of Justice Competitive Impact Statement, United States v. Univision Communications, Inc. and Hispanic Broadcasting Corp., No. 03-00758 (D.D.C. 2003), available at http://www.usdoj.gov/atr/cases/f201000/201006/htm.
82. Response to Public Comments on the Proposed Final Judgment in United States v. Univision Communications, Inc., 68 Fed. Reg. 66,854, 66,855 (Nov. 28, 2003).
83. United States v. Microsoft, 56 F.3d 1448, 1459 (D.C. Cir. 1995).
84. Department of Justice, Complaint for Injunctive Relief, United States v. Univision Communications, Inc. andHispanic Broadcasting, No. 03-0758 (Mar. 26, 2003), available at http://www.usdoj.gov/atr/cases/f200800/200878.htm
85. United States v. Univision Communications, Inc., 2003 WL 23192527 (D.D.C.).
86. See Response to Public Comments on the Proposed Final Judgment in United States v. Univision Communications, Inc., 68 Fed. Reg. 66,854, 66,856 (Nov. 28, 2003).
87. See Joel Waldfogel, Consumer Substitution Among Media 3 (Sept. 2002) (unpublished manuscript on file with the FCC Media Ownership Working Group), available at http://hraunfoss.fcc.gov/edocspublic/attachmatch/DOC-226838A8.doc.
88. Statement of Commissioner Jonathan Adelstein, supra note 16, at 2.
89. Catherine J.K. Sandoval, Antitrust Language Barriers: First Amendment Constraints on Defining an AntitrustMarket by a Broadcast's Language and its Implications for Audiences, Competition and Democracy, 60 FED. COMM. L.J. 407 (2008).
90. It is worth noting that adherents of the English-onlymovement in the United States view the public interest as an English-only speaking society, where English is established as the official language in government and other public contexts.
91. See Valerie Barker & Howard Giles, Who Supports the English-Only Movement?: Evidence about Misconceptions about Latino Group Vitality, 23.
92. J. MULTILINGUAL & MULTICULTURAL DEVEL. 353 (2002).
93. See generally CROTEAU & HOYNES, supra note 4, at 5.
94. See also W. Curtiss Priest, Character of Information Report (2004), available at http://www.eff.org/Misc/Organizations/CITS/?f=equitableinfrastructure_and_public_ha_nd.txt
95. See Attachment D, Letter on behalf of Spanish Broadcasting System, supra note 14.
96. A rigorous analysis, by the dissenting commissioners' own admission, would have included independent data collection, strenuous analysis, and outreach to providers and consumers of Spanish language media. They also recommended that hearings should have been held.
97. See Statement of Adelstein and Copps, supra note 4, at 32.
98. Statement of Adelstein and Copps, supra note 4, at 5.
99. M. Howard Morse, Product Market Definition in the Pharmaceutical Industry, 71 ANTITRUST L.J. 633, 634 (2003).
100. The Sirius-XM satellite radio merger is one of the most recent examples of the importance of product market definition in media mergers.
101. See Brown Shoe Co. v. United States, 370 U.S. 294, 320-21 (1962) ("Congress neither adopted nor rejected specifically any particular tests for measuring the relevant markets, either as defined in terms of product or in terms geographic locus of competition, within which anticompetitive effects of a merger were to be judged.").
102. Id. at 294.
103. See James A. Keyte, Market Definition and Differentiated Products: The Need for a Workable Standard, 63 ANTITRUST L.J. 697, 713 (1995).
104. See, e.g., Jonathan B. Baker, Product Differentiation Through Space and Time: Some Antitrust Policy Issues, 42 ANTITRUST BULL. 177 (1997).
105. For a thorough discussion of the supply-side interpretation of market definition, see Sandoval, supra note 61. The author asserts that audiences choose Spanish-language media based on the intertwined nature of its language and its content, which would trigger First Amendment scrutiny of attempts to regulate the product market.
106. Id. at 418.
107. Such a content-based regulation of product markets would be required to survive strict scrutiny analysis. However, for Spanish-dominant and Spanish-only media consumers, there is no choice among content because of the language barrier; English-language content is simply not a substitute. Because of this, a supply-side analysis that emphasizes only the role of the manufacturer/content producer falls short. Further, a demand-side analysis that looks only at advertisers also fails to address the needs of the information consumers. As a result, our conclusions differ.
108. See, e.g., Sandoval, supra note 61, at 471-73.
109. Catherine J.K. Sandoval, Antitrust Law on the Borderland of Language and Market Definition: Is There a Separate Spanish-Language Radio Market? A Case Study of the Merger of Univision and Hispanic Broadcasting Corporation, 40 U.S.F.L. REV. 381 (2006) (arguing that the DOJ failed to consider that incumbent English-language broadcasters could use their economies of scale to readily enter the Spanish language market by converting their broadcast language).
110. See Harry Boadwee Product Market Definition for Video Programming, 86 COLUM. L. REV. 1210 (1986).
111. Reza Dibadj, A Response to Professor Catherine J.K. Sandoval's Antitrust Language Barriers, 60 FED. COMM. L.J. 64 (2008).
112. Nicole Serratore, How Do You Say "Big Media" in Spanish? Spanish-Language Media Regulation and the Implications of the Univision-Hispanic Broadcasting Merger on the Public Interest, 15 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 203 (2004).
113. See Boadwee, supra note 74, at 1210.
114. However, the DOJ grappledwith this very issue in the recent XM-Sirius satellite radio merger, when it decided to broadly interpret the relevant product market.
115. Id. The Supreme Court has even emphasized Congress' mandate thatmerger review must be industry specific.
116. See Brown Shoe Co. v. United States, 370 U.S. 294, 321-22 (1962) ("Congress indicated plainly that a merger had to be functionally viewed, in the context of its particular industry.").
117. Changes in the Entertainment Formats of Broadcast Stations, 60 FCC 2d 858 (1976).
118. See also WNCN Listeners Guild v. FCC, 450 U.S. 582 (1981).
119. Scholars have also rejected the notion that broadcast language creates a separate product market.
120. See, generally, Sandoval, supra notes 61, 73.
121. However, we believe there to be substantial evidence that broadcast language forms the basis for a separate product market.
122. Changes in the Entertainment Formats of Broadcast Stations, 60 FCC 2d at 864.
123. Id. at 868 (Commissioner Benjamin L. Hooks, dissenting).
124. See infra notes 105-114 and accompanying text.
125. See infra notes 115-122 and accompanying text.
126. The FCC's main reason for this categorization is that it has ruled that format changes can occur whenever a license is transferred and that the market will determine what types of programming diversity are demanded in the marketplace. Changes in the Entertainment Formats of Broadcast Stations, 60 FCC 2d 858 (1976).
127. See also WNCN Listeners Guild, 450 U.S. 582, 582 (1981).
128. This, despite insistence to the contrary by the FCC. The majority wrote the following on creating a separate Spanish media market: "While the dissent makes reasonable points in this regard, such an approach would diverge from 30 years of FCC precedent declining to evaluate program format."
129. Joint Press Statement of Commissioners Michael Powell, Kathleen Abernathy & Kevin J.Martin, Federal Communications Commission (Sept. 22, 2003), available at http://www.fcc.gov/transaction/univision-hbc.html.
130. While not evaluating program "format," the FCC has aggressively crafted policies which protect diverse viewpoints and minority access to the media, as outlined herein.
131. See Bill Piatt, Linguistic Diversity on the Airwaves: Spanish-Language Broadcasting and the FCC, 1LA RAZA L.J. 101 (1984).
132. 6 FCC 2d 65, 67-74 (1966).
133. Id. at 68-73.
134. See In re New Mexico Broadcasting Co., 87 FCC 2d 213 (1981).
135. 24 FCC 2d 827, 827 (1970).
136. Tucson Radio Inc., 35 FCC 2d 584, 585-86 (1972).
137. Cable Television Report and Order. 36 FCC 2d 143, 175 (1972).
138. First Report and Order, 58 FCC 2d 442, 452 (1976) (emphasis added).
139. Telemundo Communications, Inc. (Transferor) and TN Acquisition Corp. (Transferee), 17 FCC Rcd 6958 (2002).
140. Memorandum Opinion and Order, FCC 02-133, 20 (2002).
141. Id. at 22 (emphasis added).
142. The National Spot Sales Rule bars a network from representing its affiliate stations in national advertising sales of non-network availabilities (spots). 47 C.F.R. §73.658(i) (2009).
143. See also Network Representation of TV Stations in National Spot Sales.
144. Request of Spanish National Network, FCC 78-682, 43 Fed. Reg. 45895 (1978).
145. Amendment of §73.658(i) of the Commission's Rules Concerning Network Representation of TV Stations in National Spot Sales, FCC 90 364, 5 FCC Rcd 7280 (1990).
146. Azteca International Corporation (Azteca America), 18 FCC Rcd 1062, ¶¶2, 4 (MB 2003), available at http://hraunfoss.fcc.gov/edocspublic/attachmatch/DA-03-1783A1.pdf.
147. Statement of Commissioner Jonathan Adelstein, supra note 16, at 3.
148. Amendment of Section 73.658(i) of the Commission's Rules, 5 FCC Rcd 7280, ¶12 (1990).
149. Network Representation of TV Stations in National Spot Sales.
150. Request of Spanish National Network, FCC 78-682, 43 Fed. Reg. 45,895, 45,898 (1978) (emphasis added).
151. Press Release, Federal Communications Commission, ASL-Spanish Translation for Video Relay Service Eligible for Compensation from Interstate TRS Fund (July 14, 2005), available at http://hraunfoss.fcc.gov/edocspublic/attachmatch/DOC-259992A1.doc.
152. Id. (emphasis added).
153. Closed Captioning and Video Description of Video Programming, Order on Reconsideration, 13 FCC Rcd 19, 973 (1998) at ¶95.
154. 370 U.S. 294 (1962).
155. See Keyte, supra note 70, at 704.
156. 370 U.S. at 325.
157. Id. See also United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586, 593-95 (1957).
158. Professor Catherine J.K. Sandoval has also evaluated the merger in light of the Brown Shoe indicia, reaching the opposite conclusion.
159. Sandoval, supra note 73, at 392-411.
160. This difference in outcome can be attributed in large part to the application of supply-side versus demand-side approaches in our analyses.
161. See Selig Center for Economic Growth, The Multicultural Economy 2008, availableat http://www.terry.uga.edu/selig/docs/executive_summary_2008.pdf.
162. Association of Hispanic Advertising Agencies, available at http://www.ahaa.org/agencies/agencies.htm.
163. Letter from Alan Sokol to Marlene H. Dortch, Federal Communications Commission 5 (July 14, 2003), available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?nativeor_pdf&id_document=6514285804.
164. Letter from Fred Zuckerman, Vice President of Media Services, Auto Nation, to Federal Communications Commission (June 23, 2003), available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&iddocument=6514282045.
165. See Letter from Jose Carlos Miramontes, National Latino Peace Officers Association, to Michael K. Powell, Federal Communications Commission, June 24, 2003, available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?nativeorpdf=pdf&iddocument=6514286211.
166. See Univision Reveals Programming Line-up for 2005-2006 (May 18, 2005), available at http://univision.net/corp/en/pr/New_York_18052005-1.html.
167. For example, Nielsen reports the top television shows weekly for Hispanic viewers. For the week of Dec. 29, 2008, all ten were Univision network shows with Spanishlanguage titles.
168. Nielsen Media Inc., Top 10 TV Ratings Among Hispanics, http://www.nielsenmedia.com/nc/portal/site/Public/menuitem.43afce2fac27e890311ba0a347a062a0/?show=%2FFilters%2FPublic%2Ftop_tv_ratings%2Famonghispanics&vgnextoid=9e4df9669fa14010VgnVCM100000880a260aRCRD.
169. See Nielsen Media, Inc., Company History, http://www.nielsenmedia.com/history.html.
170. This includes Nielsen's release of its 2008-09 Hispanic DMA Ranks. Additionally, Nielsen's Products and Services page includes links to information about Hispanic Networks, Hispanic Stations and Hispanic Audience Samples.
171. Nielsen Media, Inc., Products and Services, available at http://www.nielsenmedia.com/nc/portal/site/Public/menuitem.4f84194d341befbc3a81e810d8a062a0/?vgnextoid=e3f6da86b0715010VgnVCM100000880a260aRCRD.
172. Nielsen Media, Inc., About Nielsen Media Research, http://www.nielsenmedia.com/about us.html.
173. Arbitron, Inc., Hispanic Radio Today: How America Listens to Radio, 2004 Edition,http://www.arbitron.com.
174. Arbitron, Inc., Hispanic Radio Ratings, http://www.arbitron.com/adagencies/home.htm.
175. Id. Although one could argue that Nielsen and Arbitron provide information on another minority demographic by measuring audience share among African-Americans, this demographic is not unique within the programming universe because of its predominant reliance on the English language.
176. See Federico Subervi, Assessing the Diversity of Latino-Oriented Media in Local Settings (unpublished paper presented at the 2007 Inaugural Conference of Assessing the State of the Spanish Language Media, Denton, Tex.).
177. See also Subervi & Correa, supra note 40, at 26.
178. They documented a complete absence of local, originally produced Spanish-language news and public affairs programming on the radio in Central Texas, despite the presence of twenty Spanish-language radio stations in the San Antonio and Austin markets.
179. Id. at 20.
180. The stations were owned by two companies, Univision and Border Media Partners.
181. See Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962).
182. Letter from Alan Sokol, supra note 112.
183. See Jeff Leeds, Clear Channel is Expanding in Spanish Radio, N.Y. TIMES, Sept. 17, 2004, at C5.
184. See Radio and Records, Ratings, http://www.radioandrecords.com. (Searched by city name: Los Angeles, New York, Miami, Houston, Dallas Ft. Worth, Chicago, San Antonio, Phoenix, San Francisco, Harlingen-Weslaco-Brownsville-McAllen.) The primary supplier of Spanish news/talk format in this review was Univision.
185. Memorandum Opinion and Order, FCC 03-218, MB Docket No. 02-235 (Sept. 22, 2003).
186. Ssee also Memorandum Opinion and Order, FCC 02-113, 2 (Apr. 9, 2002), available at http://hraunfoss.fcc.gov/edocspublic/attachmatch/FCC-02-133A1.doc.
187. Statement of Adelstein & Copps, supra note 4, at 4.
188. Telemundo Communications Inc., Corporate Information (translated),http://tv.telemundo.yahoo.com/corporativo/articulo/18062007/71/corporativo-informacin-corporativa.html.
189. See Brown Shoe, 370 U.S. 294, 325 (1957).
190. E.I. du Pont de Nemours, 351 U.S. 377, 404 (1956).
191. 351 U.S. at 399.
192. See Competitive Impact Statement, United States v. Clear Channel Communications, Inc., and AMFM, Inc., No. 00-2063, at 9 (D.D.C. Nov. 15, 2000), available at http://www.usdoj.gov/atr/cases/f6900/6985.htm.
193. See Sandoval, supra note 73, at 387.
194. The media industry is unique for its dual product nature. Although one media product (such as television content) is the first product purchased by the audience, a second product - access to the audience, or air time - is simultaneously sold to advertisers. Although the DOJ was concerned with this latter product, the FCC should have been concerned with the first product (the audience) and its public interest.
195. See ALBARRAN, supra note 23, at 27-28.
196. PICARD, supra note 23, at 17-18.
197. Comment and Additional Information Filed by Spanish Broadcasting System to Marlene H. Dortch, Federal Communications Commission 40 (June 16, 2003), available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?nativeorpdf=pdf&iddocument=6514183066.
198. Id. at 134.
199. See also Statement of Adelstein & Copps, supra note 4, at 12.
200. See, e.g., MILTON HANDLER ET AL., CASES & MATERIALS ON TRADE REGULATION 231 (2d ed., 1983).
201. Harry Boadwee, Product Market Definition for Video Programming, 86 COLUM. L. REV. 1210, 1223 (1986).
202. See also United States v. Household Fin. Corp., 602 F.2d 1255, 1260 n.7 (7th Cir. 1979).
203. Secondary audio programming (SAP) is a service for speakers of a second language, enabled by a control button on a VCR or television, provided the signal is in stereo, or a stand-alone SAP receiver. However, broadcasters also use SAP to provide other audio messages, such as severe weather announcements or video descriptions for the visually impaired.
204. Information about Secondary Audio Programming, http://www.mylvtv.com/inside/sap.pdf.
205. In 2003, SAP penetration, defined by Nielsen Media Research as the percentage of households that had an SAP-capable device, was 76.1%. One-third to one half of all TV broadcasters in the top Designated Market Areas were broadcasting on an SAP channel as of 2000. Memorandum and Order, FCC 03-218, 26-27 (Sept. 22, 2003). However, not all programs are necessarily available in SAP, just those the broadcaster decides to provide. So while some translated English language programming is available to some Spanish language viewers in some markets, this is by no means a universal or consistent service for all, so cannot be considered a substitute. Dissenting Commissioners Adelstein and Copps also argue that SAP service for news and public affairs programming is especially inconsistent, and that many broadcasters who originally offered SAP have now dropped it due to cost.
206. Statement of Adelstein & Copps, supra note 4, at 44.
207. United States v. Grinnell Corp., 384 U.S. 563 (1966).
208. United States v. Paramount Pictures Inc., 334 U.S. 131 (1948).
209. 826 F. Supp. 1338 (M.D. Ala. 1993), vacated as moot
210. 866 F. Supp. 1376 (M.D. Ala. 1993).
211. Id. at 1356.
212. Keyte, supra note 70, at 717 (emphasis in original).
213. See George S. Day et al., Customer-Oriented Approaches to Identifying Product-Markets, 43 J. OF MARKETING 8, 19 (1979).
214. H. Peter Nesvold, Communication Breakdown: Developing an Antitrust Model for Multimedia Mergers and Acquisition, 6 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 781, 845 (1996).
215. th Cir. 1989), rev'd on other grounds sub nom.
216. See also City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365 (1991).
217. Ad-Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 849 F.2d 1336 (11th Cir. 1987).
218. Advo, Inc. v. Philadelphia Newspapers, Inc., 854 F. Supp. 367 (E.D. Pa. 1994).
219. U.S. Dept. of Justice & Federal Trade Comm'n., Horizontal Merger Guidelines §1.0 (1997).
220. Keyte supra note 70, at 699.
221. See HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION AND ITS PRACTICE §3.8a (1999).
222. 68 Fed. Reg. at 66,857 (2003).
223. Although the 2003 broadcast ownership rules are now void after being remanded to the FCC, it was under this framework that the FCC was operating at the time, while it awaited the outcome of Prometheus Radio Project v. FCC. 2003 U.S. App. LEXIS 18390 (3d Cir. Sept. 3, 2003).
224. Because the FCC - had it chosen to conduct a rigorous analysis of the merger-would have likely performed the analysis under this policy framework, it is done so here. However, because the 2003 rules have now been remanded by the Third Circuit, the 1999 duopoly and cross ownership rules are applied as well because they remain in effect during and would have been the legal basis for the merger's consideration.
225. See Prometheus Radio Project v. FCC, 373 F.3d 372, 435 (3d Cir. 2004).
226. HHI is a calculation of market concentration, performed by summing the squared market shares of each firm. According to the Department of Justice's Merger Guidelines, "[M]arkets in which the HHI is between 1000 and 1800 are considered to be moderately concentrated, and markets in which the HHI is in excess of 1800 points are considered to be highly concentrated. Transactions that increase the HHI by more than 100 points in highly concentrated markets presumptively raise significant antitrust concerns." United States v. Univision Commc'ns Corp., No. 03-0758, 2003 U.S. Dist. LEXIS 24294, Appendix A (D. D.C. 2003) (unreported).
227. See Attachment A, Letter on behalf of Spanish Broadcasting System to Marlene H. Dortch, Federal Communications Commission, MB Docket No. 02-235 (Aug. 22, 2003), available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?nativeorpdf=pdf&iddocument=6514683926.
228. FCC Multiple Ownership Rules, 47 CFR 73.3555 (2008).
229. 2002 Biennial Regulatory Review-Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Cross-Ownership of Broadcast Stations and Newspapers, Rules and Policies Concerning Multiple Ownership of Radio Broadcast Stations in Local Markets, Definition of Radio Markets, Definition of Radio Markets for Areas Not Located in an Arbitron Survey Area, MB Docket Nos. 02-277, 03-130, 01-235, 01-317, and 00-244, Report and Order and Notice of Proposed Rulemaking, 18 FCC Rcd 13620, ¶454 (2003).
230. See Attachment D, supra note 14.
231. See Brownsville Radio Stations by Format, http://www.ontheradio.net/metro/Brownsville_TX.aspx.
232. Phoenix Radio Stations by Format, http://www.ontheradio.net/metro/Phoenix_AZ.aspx.
233. See Attachment D, supra note 14.
234. See Letter on Behalf of Spanish Broadcasting System to Marlene H. Dortch, Federal Communications Commission, MB Docket No. 02-235 (Aug. 22, 2003), available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?nativeorpdf=pdf&iddocument=6514683926.
235. Prometheus, 373 F.3d 372, 435 (3d Cir. 2004).
236. Loy A. Singleton & Steven C. Rockwell, Silent Voices: Analyzing the FCC "Media Voices" Criteria Limiting Local Radio-Television Cross Ownership, 8 COMM. LAW & POL'Y 385 (2003).
237. Id. at 392.
238. Federal Communications Commission, FCC's Review of the Broadcast Ownership Rules (Apr. 15, 2003), http://ftp.fcc.gov/cgb/consumerfacts/reviewrules.html.
239. See Attachment C, Letter on Behalf of Spanish Broadcasting System to Marlene H. Dortch, Federal Communications Commission, MB Docket No. 02-235 (Aug. 22, 2003), available at http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?nativeorpdf=pdf&id_document=6514683926.
240. U.S. Department of Justice and Federal Trade Commission Horizontal Merger Guidelines, 57 F.R. 41552, §1.51(b) (1997).
241. Complaint ¶35, United States v. Bain Capital LLC, No. 08-0245, 2008 U.S. Dist. LEXIS 71270 (D.DC. July 29, 2008).
242. See Morse, supra note 67, at 633-34, 652, 656.
243. Id. at 634.
244. By law, the government is not required to share the details of its decisionmaking process.Moreover, it is not required to go beyond the investigation of the original complaint.
245. See Letter on Behalf of Spanish Broadcasting System to Marlene H. Dortch, supra note 164.
246. Hispanics now represent 15% of the U.S. population, having surpassed African Americans as the largest minority group.
247. See Pew Hispanic Center, Statistical Portrait of Hispanics in the United States, http://pewhispanic.org/files/factsheets/hispanics2006/Table-1.pdf.
248. The Hispanic birth rate is higher, resulting in a younger demographic overall. This factor, in addition to immigration, is likely to result in the Hispanic population comprising 24% of the population in 2050.
249. See Facts for Features, supra note 17.