Document Type
Article
Publication Date
2005
Abstract
Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and diversity of media content. The specific examples analyzed include (1) efforts to foster and preserve free television and radio, (2) rate regulation of cable television, (3) horizontal restrictions on the number of outlets one entity can own in a local market, and (4) regulations limiting vertical integration in television and radio. Unfortunately, current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny, and it appears unlikely that existing doctrine will change or that Congress or the Federal Communications Commission will step in to fill the void.
Keywords
Telecommunications and Regulated Industries, antitrust, constitutional law
Publication Title
Southern California Law Review
Repository Citation
Yoo, Christopher S., "Architectural Censorship and the FCC" (2005). All Faculty Scholarship. 784.
https://scholarship.law.upenn.edu/faculty_scholarship/784
Included in
Administrative Law Commons, Antitrust and Trade Regulation Commons, Communications Law Commons, Communication Technology and New Media Commons, Constitutional Law Commons, Digital Communications and Networking Commons, First Amendment Commons, Internet Law Commons, Law and Economics Commons, Mass Communication Commons, Other Economics Commons, Science and Technology Law Commons
Publication Citation
78 S. Cal. L. Rev. 669 (2005)