Cable Traffic and the First Amendment Must-Carry Under a Diversity Approach and Antitrust as Possible Alternative

Recent technological progress in the field of telecommunications has greatly changed the competitive structure between broadcasters, cable operators, and telephone companies. The legal and economic environment for these media participants has shifted, and new problems have arisen. One major problem is the enhanced threat of concentration of media corporations, as corporate bigness becomes desirable and the number of diversified owners of media outlets continues to decrease. This paper analyzes broadcasting regulations and subsequent case law to show the concern by the legislature and regulatory agencies to preserve diversity in opinion and media-ownership through emphasis on “localism” and a “marketplace of ideas.” Specifically, this paper will examine the controversy around the constitutional validity of “must-carry” rules enacted by the FCC in 1965. This paper also analyzes current antitrust law to examine if and to what extent antitrust could serve as an alternative means for local broadcasters to seek carriage on the cable system