The Supreme Court and the Future of Journalism

[Commentary] As absurd as it would be for regulators to block Google or Apple from operating in more than one medium, it's now almost 40 years since the Federal Communications Commission's cross-ownership rules have stopped newspapers from owning local broadcasters.

Newspapers and television broadcasters are among the media industry's most troubled companies. If they could, many newspaper companies would combine with television outlets to provide better news and lower combined costs. Whether they will be able to do so is up to the Supreme Court. In the early days of radio and television, local newspapers were so powerful that regulators convinced judges to let them discriminate against them by limiting their ownership of spectrum. Technology has now completely undermined any argument based on limited spectrum, yet U.S. law remains guided by the technology of 1969. That was the year the Supreme Court decided Red Lion Broadcasting v. FCC, which said that bandwidth scarcity justified the now-repudiated "Fairness Doctrine." The justices understood even then, in the pre-personal computer and pre-Internet era, that their exception to the First Amendment was based only on the "present state of commercially acceptable technology." By 1972, federal appeals court Judge David Bazelon could forecast "it may be possible within 10 years to provide television viewers 400 channels through the advances of cable television." That prohibitions still exist on cross-ownership of newspapers and broadcast stations reminds us that once regulations are issued, it's almost impossible to get rid of them—no matter how much the technology on which they are based has changed.

Many newspaper companies are fighting for their lives as digital media offer benefits for both advertisers and readers that long ago ended the dominance of print. That should be an argument for no longer making newspaper companies the only ones that can't combine with broadcasters. The best way to preserve a diversity of voices is to let the troubled newspaper and broadcasting industries combine to help them compete and indeed survive.