Diversity and Competition in New and Old MediaDecember 23, 2020
One of the most important and difficult goals of media policy is preserving and promoting voices of marginalized communities and diverse perspectives.
It’s important because a functioning democracy requires informed points of view from multiple perspectives. There should be media that speak to and speak for everyone in our country. This applies to all media, old and new, though how to apply this principle will vary.
It’s also challenging for several reasons. First, amplifying voices doesn’t mean that we should welcome the spread of hate speech, conspiracy theories, and misinformation. Some “perspectives” are offered in bad faith and only serve to silence or harm others. And it doesn’t mean we get rid of the concept of truth and debate, in favor of a naive “marketplace of ideas” that values engaging, sensational, and fear-mongering content over figuring out what’s really happening in the world. Addressing how some traditional media outlets such as cable channels and news publications have given up on informing their readers and viewers in favor of manipulating them, and how social media amplifies and even originates lies, will be a key challenge for policymakers in the coming years.
Another challenge is that we typically don’t want policymakers deciding what perspectives should be aired in the media. They don’t even necessarily know what they are. And as a Constitutional matter, in the U.S., we generally can’t have such content-based regulations.
Instead, one approach is to attempt to ensure viewpoint diversity by ensuring that media outlets have diverse ownership from traditionally marginalized communities, so that the perspectives of the owners can inform who is hired, and what is produced.
When it comes to traditional pay TV, part of this has been ensuring that the owners of pipes, such as cable TV systems, give a fair shake to independent media outlets, and don’t just stuff their lineups with programming they produce, or channels from a handful of media giants. For example, what are known as the “program carriage” rules forbid pay TV operators from discriminating against independent programmers merely because they are independent.
When AT&T purchased Time Warner, we were worried that bringing so much programming in house would harm programming diversity and raise consumer prices, and have been documenting for years ways this prediction has some truth.
Now AT&T is in a battle with Fuse Media, “one of the few Latino-owned and operated enterprises in entertainment,” and could drop that station. Fuse has filed a program carriage complaint with the Federal Communications Commission, and argues that “If AT&T truly values minority voices, then their words must match their actions, especially during a time in which our nation is undergoing a seismic social awakening.” AT&T claims that its customers don’t want Fuse.
Fuse has an uphill battle. Program carriage complaints are tough to win at the FCC, which has adopted an interpretation of the law that disfavors complainants. And it’s impossible to know from the outside who is right with any specific disagreement over this kind. No doubt Fuse has data on how popular its programming is, and suspects that AT&T simply wants to direct its viewers to other outlets, that it either owns itself or has different commercial terms with.
But at a higher level outlets like Fuse are exactly what we want to preserve in the media. Not every TV channel needs to be run by companies like Viacom, Disney, or WarnerMedia. Independent outlets should have a chance, and we should have rules and market structures in place that prevent media consolidation more generally, and that limit the ability of some kinds of distributors from discriminating against independent creators.
This applies online, too, though the details are different. Some people see the problem of misinformation and harmful speech on social networks as a problem of too many voices. But in reality, as a quite impressive series of antitrust lawsuits just reminded us, internet platforms are not as competitive as they should be. A handful of social media companies and their moderation policies heavily affect the national discourse. A more competitive environment would allow different content moderation policies to exist, informed by different points of view, and interoperability rules could allow people to communicate with each other without having to all use the same platform with the same rules from the same company. (This is not a novel concept! Plenty of networks, such as the telephony, email, and the internet itself benefit from ‘network effects’ without being a single national monopoly.) As I’ve written in response to conservative complaints about social media bias, people from all political perspectives should see the advantage of this kind of structural approach over directly regulating the content and moderation practices of monopolistic companies.
The details of how to ensure competition and diversity in different kinds of media are different. The technology, gatekeepers, and necessary solutions vary, even if the underlying problems are similar. But as we confront the problems of social media and online platforms we should recognize that we have faced similar problems in other forms of media before, problems we’ve only imperfectly addressed, as Fuse’s complaint demonstrates.
About John Bergmayer
John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.