Two Principles of Broadcast Media

Ownership for a Democratic Society Michael Buckley

ABSTRACT. Technological advances in media commu-
nications have raised questions about the appropriateness of
media ownership rules for traditional TV and radio
broadcast. This article contributes to this debate by
defending a set of principles that ought to govern the dis-
tribution of broadcast spectrum. In particular, it defends
principles reflecting the public interest constraint cur-
rently informing broadcast media ownership rules, and
argues against a free-market procedure for distributing
spectrumuse. The argument relies upon the application of a
political constructivist approach typical to many political
theories. In applying this approach, the author illustrates the
strengths and weakness of constructivismand in the process
provide an example for how constructivism can be applied
to other subjects. As a result, the article has two aims. First, it
defends a set of broadcast ownership principles. Second, it
provides a model for how philosophers might apply con-
structivism to other subjects.
KEY WORDS: broadcast media ownership, FCC, John
Rawls, media, political constructivism, telecommunica-
tions
There are moments in history when technological
advances outpace an industrys legal structures, rend-
ing both its laws and their original justication ob-
solete. Todays transitiontodigital platforms is altering
the competitive landscape of the media industry and
placing new pressures on traditional broadcasters,
raising questions about the appropriateness of broad-
cast ownership rules. In the United States, the public
interest constraint placed on TV and radio broadcast
ownership requires the broadcast spectrum promote
the widest possible dissemination of information
from diverse and antagonistic sources.
1
By contrast,
newer media platforms, such as online video, are
subject to less stringent regulations, despite competing
directly with broadcasters. The creation of delivery
platforms for the digital transfer of data providing
instantaneous information around the globe leads
some to view ownership constraints on TV and radio
broadcasters as misplaced and detrimental to broad-
casters continued success.
When thinking about rules regulating TVand radio
broadcast media, one must consider the technological
changes creating shifts within the industrys compet-
itive landscape. To a certain extent, such consider-
ations occurred in the United States with the 1996
Telecommunications Act, which attemptedto correct
a perceived disconnect between ownership rules and
heightened competition. The new rules allowed for
increased ownership concentration that some believe
improved the competitive prospects of the broadcast
industry. Prior to the act, the top 10 radio companies
owned 4% of all commercial radio stations in the U.S.
(371 out of 10,276). Today, the top 10 radio
companies own 22% of all stations, with Clear
Channel owning 11%.
2
Since the Act was passed,
however, newchanges have againaltered competition
for broadcasters. Ten years ago, there were few
internet radio stations, and no iPod devices competing
with terrestrial radio. Today, millions of people store
personal music libraries on portable devices, some of
which can hold more than 15,000 songs. Young adults
are now as likely to discover new music on Satellite
Radio or through internet radio stations as they are on
the terrestrial radio. No doubt, these developments
will hurt broadcasters bottom line. In 2006, internet
ad revenues totaled $9.4 billion compared to
$20 million in 2005. By 2010, internet ad revenue is
expected to reach $23.9 billion, exceeding total esti-
mated ad revenue for terrestrial radio that year.
3
While it would be imprudent not to take these
facts into account when considering ownership
rules, it would be equally unwise to ignore the
guiding principles against which these rules and their
Journal of Business Ethics (2008) 82:821834 Springer 2007
DOI 10.1007/s10551-007-9595-x
outcomes can be measured. It is remarkable that the
many ne-grained analyses about media ownership
conducted by the Federal Communications Com-
mission (FCC) and other media research rms occur
without the benet of a more structured framework
of thought. For example, in a recent FCC round-
table discussion on media ownership, some partici-
pants expressed frustration over the fact that the
FCC has not clearly dened key concepts, such as
public interest or diversity.
4
Without a clear
understanding of guiding principles and their key
concepts, knowing how to best measure outcomes
of regulatory decisions is exceedingly difcult. For
example, does the diversity principle imply regula-
tory procedures should encourage civil discourse in
the marketplace of ideas, or does it imply the pro-
motion of a variety of entertainment in commercial
media markets? Without a clearer framework of
thought and guiding principles, researches do not
know what to look for when measuring the effects
of regulation. Consequently, guiding principles and
their underlying justication are as important as
technological developments for developing policy.
Without an analysis of these principles and their
underlying reasons, it is not clear whether current
technological changes warrant new media ownership
rules.
I do not plan to discuss the many ownership rules
currently debated in the United States.
5
Instead, I
intend to identify and defend principles of media
ownership that should inform the debate over broad-
cast media ownership rules in a democratic society (in
this article I focus on the U.S.). I assume a division of
labor between justifying a set of principles on the one
hand, and on the other hand establishing the relation-
ship between specic rules (such as ownership caps on
TV reach set at 39% of the national TV audience) and
their outcomes. The latter task is the only one receiving
active attention. It is a task that can be well handled by
media analysts and economists who are adept at mea-
suring economic outcomes. The former task, however,
has been overlooked. I would maintain as it is best
handled within the discipline of philosophy, which
analyzes conceptual relations and claries frameworks
of thought within which these more ne-grained
analyses take place. Since technological advances have
altered the competitive landscape of media and placed
in question the appropriateness of traditional guiding
principles, the philosophical task is obvious.
I will proceed by applying a political construc-
tivist approach to the issue, adding a further
dimension of interest for philosophers. In its most
general formulation, political constructivism is a
philosophical method claiming that a set of princi-
ples chosen within some hypothetical situation is, in
virtue of that choice, justied. John Rawls is perhaps
the most inuential philosopher holding this view,
and his original position is an excellent example of
such a hypothetical stance. But, the success of a
constructivist theory depends in part on explaining
the appropriateness of a particular hypothetical si-
tuation for some distinct subject, and constructiv-
isms most serious defect to date remains its
insufcient justication of the hypothetical situation.
Consider the following line of reasoning against
hypothetical choice procedures, such as Rawlss
original position. The procedure constrains deliber-
ations by specifying a point of view from which we
are to think about a particular subject. Moreover, the
point of view embodies certain idealized concep-
tions of persons and their social relations. For
example, when considering a subject such as Rawls
basic structure of a democratic society, we are to
think of society as a system of cooperation between
free and equal persons. The basic structure consists
of key political, social, and economic institutions,
which are cooperatively established and maintained
by free and equal persons. Additionally, free and
equal persons are described as possessing certain
moral powers and desiring certain primary goods.
Together, these idealized conceptions, along with
other restrictions, are modeled into a point of view
or hypothetical choice procedure from which
principles are chosen.
6
Deliberations occurring un-
der the constraints, which purportedly reect rele-
vant criteria for thinking about the chosen subject,
result in supposedly correct judgments about the
principles meant to govern the subject. But given
the deliberate manner in which the procedure was
constructed, one would only agree with its outcome
if one agreed with the yet to be justied ideas
embodied in the hypothetical procedure.
Constructivists typically answer this criticism by
maintaining that the hypothetical choice procedure,
along with its idealized conceptions, is justied when
the principles generated within it come to rest in
reective equilibrium with our considered moral
judgments. But, reective equilibrium has many
822 Michael Buckley
philosophical difculties associated with it, which I
will not repeat here.
7
In a separate article addressing
the subject, I provide a stronger justication for using
a particular hypothetical choice procedure.
8
Rather
than rely upon reective equilibrium as its main
justicatory strategy, I argue constructivism contains
within it resources for establishing conditions against
which the theorys principles and hypothetical choice
procedure are measured. These conditions are de-
rived from reasons for thinking a particular subject
has a political nature, i.e., belongs to those institu-
tions that should be organized according to public
rather than private interests. If there is consensus on
these reasons, then it is possible to establish a set of
conditions against which the other parts of the theory
can be measured. Justication obtains when the
principles and their supporting hypothetical choice
procedure function so as to satisfy these conditions.
The resources used for establishing these condi-
tions derive from constructivisms unique structural
features. One key feature is that political construc-
tivists develop principles for a particular subject; they
do not assume in advance that a single set of prin-
ciples will be appropriate for all subjects. Instead, it is
necessary to take up a series of subjects, viewing each
as calling for separate considerations in light of their
unique features and connecting these features
with the characteristic role and content of the
principles themselves. This makes constructivism
unique among political theories, in that its principles
do not serve as rst principles from which all others
are derived. As a method, constructivism proceeds
piecemeal, from one subject to another. It is
domain-specic and several sets of principles may be
required to govern several different subjects, such as
domestic justice, global relations, environmental
justice, etc. Consequently, constructivism is a
well-suited approach for applied ethics. Insofar as
this article defends two principles of broadcast
ownership, it serves as an example for how con-
structivists might apply my justicatory strategy to
other political subjects.
The remainder of this article has the following
structure. First, I will suggest a hypothetical choice
procedure from which a preferred set of principles is
chosen. I will then defend the appropriateness of the
procedure and its accompanying principles by estab-
lishing a set of conditions against which they can be
measured. I will ground these conditions on reasons
for thinking the subject is political in nature and, by
virtue of grounding the entire argument on reasons
rather than reective equilibrium, I will provide a
stronger justicatory account than constructivists
typically provide.
9
I propose the following as a correct point of view
for considering broadcast media ownership.
10
When
thinking about this issue, we should take the per-
spective of a representative or lobbyist of a particular
group having specic interests in how spectrum use
is distributed. The relevant groups consist of pro-
ducers/deliverers of content and consumers of
content. In the case of producers/deliverers, the
interests include gaining strategic access to the
broadcast spectrum in order to realize prot, political
leverage or some other benet typical of control
over broadcast licenses. They also include those
interested in the spectrum for non-commercial
purposes, such as universities and religious organi-
zations, each of which has an interest in creating a
community through the communication of ideas,
issues, events and cultural items.
In the case of consumers, their interests include
access to entertainment and leisure. But, they also
include the interests of democratic citizens. Such
citizens view themselves as the source of legitimate
political power, and feel entitled to exercise this
power over societys basic institutions through
voting procedures. As such, they have an interest in
receiving politically relevant information. Moreover,
since the typical outcome of democratic institutions
is the plurality of perspectives on religious, political,
and cultural matters, citizens will demand political
information from diverse perspectives.
Citizens demand for varied content stems not
only from an interest in hearing viewpoints for
which they feel an afnity, but also from the need to
hear opposing perspectives. Access to opposing
positions is required if citizens are to realize their
capacity to justify their political decisions to those
who hold other views. Without the realization of
this capacity, democracies can degenerate into tyr-
annies of the majority, with those in the minority
increasingly feeling alienated from the process. As
their sense of alienation grows, so does their cyni-
cism about being a source of political legitimacy.
The entitlement to shape politics and the capacity to
justify the realization of this entitlement are two
powers possessed by democratic citizens. Thus,
Two Principles of Broadcast Media Ownership for a Democratic Society 823
representatives of this hypothetical situation know
consumers have an interest in varied content.
When reasoning from these interests we deliberate
instrumentally, since we are charged with the task of
securing our groups interests. But my proposed
thought experiment requires our perspective balance
competing interests. One way to accomplish this is to
imagine that, although we occupy the position of a
representative, we are not sure which particular
groups interest we represent. That is, we might
represent the interests of a producer/deliverer of
content with a political agenda, or we may represent
a group of consumers inuenced by their religious
perspectives, or we may represent a producer/
deliverer of content with a commercial agenda, etc.
In addition it is assumed representatives know
groups prefer the partial satisfaction of their interests to
no satisfaction at all and, consequently, are not pre-
pared to engage in an all-or-nothing bargaining stance.
In this sense, representatives act as trustees or guardians
of the groups long-term interests, since they are in-
structed to choose principles that increase the likeli-
hood that their group will secure some of its interests
now or at some point in the future. This is in contrast
to principles allowing for the monopolization of the
spectrum and thus lowering the likelihood a group
will secure any of its interests now or at some time in
the future. Expressed differently, the strictures of this
hypothetical procedure constrain deliberations so as to
cast a wider net by securing the interests of more
groups. Furthermore, representatives know certain
technical facts about the spectrum, including the fact
that there is not enough room on the spectrum for all
interested parties to broadcast without interference.
Representatives also have general knowledge about
economics and understand the benets and efciencies
of market-based procedures. Given this choice pro-
cedure, what principles would we choose?
In order to facilitate this thought experiment and
to place it squarely within debates currently sur-
rounding media ownership rules, I propose consid-
ering two sets of competing principles. The rst set
consists of lexically ordered principles capturing the
key concepts operative in our current thinking about
TV and radio broadcast ownership.
11
The set is as
follows and will be further explained below:
1) A: Access to the broadcast spectrum is
reserved for those (a) capable and willing to
deliver content that (b) enables citizens to
realize their interests, including their two
political powers (i.e., their entitlement to af-
fect government and their capacity to justify
their use of this entitlement to others) and,
(c) when competing parties are equally capa-
ble and willing to deliver content satisfying
(Ab), priority will be given to those whose
content satises consumer interests not yet
represented on broadcast media.
B: When all the conditions of A are satised,
normal market forces can enter, so as to maxi-
mize efciencies in the use of the broadcast
spectrum.
The second choice reects a free-market principle
for allocating the broadcast spectrum, and is as
follows:
2) Access to the broadcast spectrum is decided
procedurally through a price-coordinated sys-
tem of exchange in an open market, subject
to normal anti-trust legislation employed by
the Department of Justice and its use of the
Herndahl-Hischmann Index, or some like
metric, used to promote the efciencies of
the market.
12
Given these two choices, how might a person
deliberating within my proposed hypothetical situ-
ation choose?
Beginning with the second principle, a represen-
tative would recognize that market allocations might
function so as to satisfy any represented interest.
Ideally, price-coordinated distribution systems allo-
cate scarce resources with alternative uses to their
most valued use. Since prices indicate consumer
preferences, they act as signposts telling suppliers to
allocate resources to the demand represented by the
highest price.
The benets of price-coordinated systems are well
known and, when possible, society should take
advantage of their efciencies. But, these benets can
be offset when the system is applied to resources of a
political dimension, since ownership over politically
relevant assets is not typically motivated by prot. Gi-
ven the spectrums capacity to deliver content to mass
audiences, the interest in controlling spectrum use is
often tied to the fact that it gives the controlling entity a
824 Michael Buckley
powerful vehicle for communicating information. It is
no coincidence that non-democratic countries con-
solidate broadcast media ownership in the hands of the
controlling government. When this is done, citizens
typically have poor access to diverse political views and
are unable to properly realize their capacity to justify
their political decisions through their entitlement to
affect government.
Market allocations do not guard against media
concentration. For this reason, free markets may fail
to realize certain interests that we, as representatives,
are required to secure. Conversely, the rst principle
includes within it a clause granting priority to con-
tent serving those whose interests are not yet rep-
resented on the spectrum. As such, distributions look
at interests being served before they look at mone-
tary demands typical of price-coordinated systems of
exchange. The clause thus helps distribute owner-
ship widely by protecting entities from entering
bidding-wars they are likely to lose. The guiding
thought here is not how much can one pay to access
to the spectrum, but is ones broadcast content
serving interests not yet served. By prioritizing the
latter concern over the prior, we as representatives
increase the likelihood our partys interest will be
satised. Producers interest in securing access to the
spectrum is better served because a wide distribution
of ownership is better protected by principle 1AB. In
addition consumers interest in diverse content is
better served since the choice of producers is based
in part on whether their content satises consumer
interests not yet represented on broadcast media. As
a result, representatives of the hypothetical situation
better serve their purpose by choosing principle
1AB.
A natural question to pose is the following: Why
should we deliberate in accordance with the above
constraints? In order to successfully answer this
question the constructivist must illustrate how we
conceptually move from a particular subject to the
constraints governing deliberations about that
subject. As I have argued elsewhere, accomplishing
this requires we x upon certain salient facts about
the subject and then provide reasons for why these
facts situate the subject within the political domain.
With these reasons in hand, it is possible to identify
conditions against which the hypothetical choice
procedure and its accompanying principles can be
measured. Proceeding in this manner provides a
stronger justicatory foundation than mere reective
equilibrium, since it relates concepts and principles
to facts via a choice procedure grounded on reasons
for nding the facts especially relevant. Moreover,
the development of a set of conditions proceeds
from resources internal to the theory and thus avoids
importing unjustied metrics when defending the
hypothetical procedure and its principles.
What are the salient facts of broadcast media and
how do these facts place broadcast media within the
domain of the political? That is, in what way do
these facts situate broadcast media among those
institutions the constitution of which should be
organized according to the public rather than private
interests?
Among the more relevant facts is that unlike other
media, such as cable or newspapers, TV and radio
broadcasters uses the electromagnetic spectrum to
distribute content. An important and unique fact
about the spectrum is that, as a distribution medium,
it is ubiquitously available; no initial investment is
required to create it. In addition, while there is
equipment cost associated with the effective trans-
mission of broadcasts signals, those costs are not
prohibitive, as I note later.
The broadcast spectrum is also unique in that
although it is readily available to all who wish to use
it, it can only support a nite number of broad-
casters. While improved digital technology has cre-
ated efciencies enabling broadcasters to transmit
more information within a single channel, the
spectrum continues to be limited in that it can only
support a nite number of broadcasts before inter-
ference problems arise. Indeed, a primary function of
the FCC is to act as an administrating agent man-
aging interference problems that might arise if too
many signals are transmitted. Since almost all elec-
tronic equipment emits radio frequencies, the FCC
equipment authorization rules regulate everything
from microwave ovens to wireless internet routers.
13
The fact that this ubiquitous, natural resource has
limited capacity is connected with a third fact,
namely, that in the United States more people are
desirous and capable of using the broadcast spectrum
than can comfortable t on it. This has historically
been the case and continues to be so today.
14
For
example, when on February 23, 1927, President
Coolidge signed the newly passed Radio Act of
1927, which set up a temporary independent Federal
Two Principles of Broadcast Media Ownership for a Democratic Society 825
Radio Commission charged with the task of
resolving interference problems, there were a total of
732 broadcasting stations, far more than the available
frequencies could comfortably accommodate.
15
Today, many more broadcasters can t on the
spectrum due to technological advances, but the
demand for spectrum continues to outstrip the
spectrums capacity. Evidence supporting this claim
includes the number of groups interested in
acquiring broadcast licenses in auctions versus the
number actually awarded licenses. For example,
when in November 2004 the FCC auctioned FM
broadcast licenses in its Auction 37, more than
450 different companies/persons qualied as viable
bidders, but only 110 of the original qualied bid-
ders won the right to construct FM broadcast sta-
tions.
16
If we were to consider not only those with
the nancial means to qualify as bidders in an auc-
tion, but also those with equipment to broadcast, the
demand would be higher. Between 1996 and 1998,
the FCC ned over 200 pirate radio stations, i.e.,
entities engaged in broadcasting without a license.
17
An additional fact characterizing the broadcast
spectrum is its reach. While some frequencies can
cover wider geographical areas than others, control
over any portion of the broadcast spectrum provides
a powerful tool through which a person or company
can reach mass audiences. The ability to reach wide
audiences is enhanced by stringing together the
networks of radio or TV stations, thus blanketing a
wider geographical area than a stand-alone station.
For example, ION Media Networks owns 57 TV
stations reaching 91 million homes, or 83% of the
primetime television households in the U.S.
18
If a ubiquitous, natural resource with great ability
to reach mass audiences exists, then those given
access to the resource possess a powerful tool for
communicating messages and information. More-
over, if this resource is available only to a fraction of
those who wish to use it, then its allocation to some
at the expense of others requires justication. From
these facts our problem begins to crystallize: Why
should some have access to this natural resource at
the expense of others equally desirous and capable of
using the resource? While the several facts identied
above help explain the need for a distribution
principle, the below facts help better dene the
subject and provide reasons for thinking it belongs
within the political domain.
One additional fact is that the ability to reach mass
audiences typically translates into power. Some argue
the proliferation of new media weakens the power of
broadcasters by splintering audiences. While this is
true, there are several facts suggesting that broadcast
media retains a privileged place among mass media
outlets. First, local programming continues to be best
served by local broadcasters. Despite the increased
proliferation of local search engines and nationally
oriented media outlets, such as Satellite Radio offering
local trafc and weather, local broadcasters are the
predominant source of local news and other local
cultural items of interest. This claim can be supported
by the continued popularity of local TV News. A re-
cent Gallup Poll identied TV as the leading source of
local News, while TNS Media Intelligence reported
that, in the third-quarter of 2006, local TV revenues
rose 10.4% when compared to the same period the
previous year.
19
Likewise, the radio industry derived
73% of its total revenue from local ads in 2005,
implying that radio continues to serve local interests in
a manner compelling to advertisers.
20
Another fact illustrating the power of broadcast as
a mass-market medium is the amount of political ad
money directed to it each political year. During the
2006 mid-term elections, politicians and interest
groups spent an estimated $2.95 billion in total
political advertising, 56%, or $1.66 billion, of which
was in the form of TV ads.
21
Equally powerful evidence lies in the extraordinary
amounts of merger and acquisition capital spent each
month on TV and radio assets. In 2006, more than
$8.9 billion worth of TV broadcast licenses and assets
exchanged hands in the private market place. More
than $21.5 billion worth of radio licenses and assets
were sold over the same period. Combined, more than
2,400 TV and radio broadcast licenses were sold in the
private market in 2006.
22
Also during the year, private
equity rms invested more than $40 billion in two
privatization deals Univision and Clear Channel
each of which have broadcast properties among their
assets. The Clear Channel deal represents one of the
largest leveraged buyout proposals in history. Clearly,
broadcast licenses remain a valuable asset.
Finally, despite claims about the dominance of
cable companies, broadcasters are now starting to
charge retransmission fees to cable operators for the
right to carry their content. Some broadcasters
expect to charge $0.25 per cable subscriber per
826 Michael Buckley
month to cable carriers, with total industry retrans-
mission fees estimated to top $1 billion by 2010. The
fact that cable operators willingly pay these fees is
testimony to the fact that broadcast content espe-
cially local content is demanded by mass audiences.
The reach and demand of broadcast content
illustrates the power possessed by those owning
spectrum licenses. But, the reach and demand of
content has a corollary fact, namely, that broadcast
media affects the ideas and opinions of consumers.
While the extent of these effects are debatable, given
the plethora of content available, it is true that
broadcast content remains a primary source of
information and, in virtue of that fact, helps shape
the ideas, opinions and debates about political, cul-
tural and civil topics.
The capacity to shape debates is important given
our focus on broadcast media ownership in a
democratic society. In democracies, the source of
political legitimacy rests on the citizenry and its
political choices. Since citizens base many political
decisions on the information received from media,
broadcasters role as a source of news and their ability
to inuence ideas translates into a capacity to shape
governance. If broadcasters limit information or
narrow the breadth of political debates, citizens are
precluded from properly exercising their two polit-
ical powers, and political control is more likely to
shift to the hands of a single constituency or small
elite. This not only threatens the integrity of a
democracy by limiting informed consent, but also
undermines the role of citizenry within democratic
society. Consequently, citizens are not indifferent to
how ownership rules encourage the production of
varied content, since their self-conception is in part
dependent upon receiving relevant and diverse
political information. This interest in diverse
content, while having a conceptual justication, has
also been borne out in the reality of TV broadcast
over the past several decades. By some estimates, the
majority of households had six or fewer local TV
channels to choose from in 1979 versus an average of
102 channels today, implying a demand for varied
content.
23
Given the above considerations, we can now
identify the subject of our inquiry and its associated
salient facts as follows: Our subject is the distribution
of the electromagnetic spectrum to TV and radio
broadcasters. The electromagnetic spectrum has the
following salient features. First, it is an already
existing, ubiquitous, natural resource capable of
delivering information to mass audiences. However,
its capacity to serve in this manner is limited to a
nite number of channels, and this number is smaller
than the number of channels individuals (or corpo-
rations) would use if these limitations did not exist.
Moreover, users of the spectrum both producers
and consumers are not indifferent to the kind of
content being delivered, and in a democratic society
this lack of indifference results in the demand of
varied content.
In virtue of these facts, we can now clearly state
why the subject falls within the political domain. In
essence, the subject is political because it entails the
allocation of a common yet nite resource the dis-
tribution rules of which impact the lives of those
living under the rules in ways not indifferent to
them. The resource is common, as the electromag-
netic spectrum (1) already exists ubiquitously and (2)
is readily available to anyone with the tools, know-
how and resolve to broadcast. It is nite in that the
spectrum cannot support all who wish to use it
without undermining its benets; and the impact of
the mediums governing rules are of concern to those
affected because citizens of democracies possess two
political powers the realization of which demands
access to varied political content. Citizens also have
varied interests, beliefs and attitudes, resulting in a
market demand for diverse entertainment.
If there is an agreement on the above reasons for
thinking our subject falls within the domain of the
political, then there is leverage for mounting a
constructivist argument in defense of the above
hypothetical choice procedure and its associated
distribution principles. This leverage results from
reasons that, while xing upon facts, express
underlying concerns with respect to practical action.
Once identied, these concerns can be articulated as
conditions the principles and hypothetical choice
procedure must meet in order to be justied. In
virtue of this move, which is unique to construc-
tivism, we can say the following: Constructed
principles are justied when they function so as to
provide a solution to the concerns expressed by the
reasons for nding the topic political.
In order for me to justify my proposed hypo-
thetical choice procedure and its associated princi-
ples, I must explain how a constructivist can move
Two Principles of Broadcast Media Ownership for a Democratic Society 827
from the reasons identied above to a set of criteria
for evaluating these principles, and then explain why
the proposed hypothetical choice procedure and its
associated principles meet the criteria. If I succeed in
this, I will have explained how facts about the
electromagnetic spectrum relate to principles for
governing the spectrums distribution. Moreover, I
will have provided a way of tethering political
principles to facts without purporting an indepen-
dent moral ontology or reducing moral principles to
non-moral facts.
I am currently concerned with the way construc-
tivists move from reasons for thinking the subject is
political to a set of criteria for measuring the success of a
proposed hypothetical situation and its accompanying
principles. Recall the rst fact I noted that the elec-
tromagnetic spectrum is readily available to anyone
capable of broadcasting radio or TV transmissions.
Unlike most media, no initial investment is required to
create the distribution medium it already exists. By
itself, this fact raises no pressing concern. However,
once combined with the fact this readily available
resource is highly desirable, a common economic
problem materializes, namely, the tragedy of the
commons.
The tragedy of the commons refers to an eco-
nomic situation whereby each individual having
access to a commonly held resources has no incen-
tive to conserve the resource, and may even have
incentives to contribute to that resources depletion.
Suppose that a common water supply can, if prop-
erly managed, support the population dependent
upon it. Further, because the resource is free, people
tend to waste water. Moreover, once this limited
water supply is wasted, people may fear its eventual
depletion, which in turn could trigger a run on the
supply, quickening the pace at which it is depleted.
While the broadcast spectrum cannot be depleted
in the same way a water supply, shery or grazing
land can be depleted, it is susceptible to overuse in
the form of congestion and interference. Like navi-
gable waterways, the broadcast spectrum can only
support so many users before it is maximized.
Beyond that limit, chaos results and no one benets.
To use language borrowed from economics, the
broadcast spectrum is rivalrous and nonexcludable
that is, a good subject to congestion or depletion, yet
readily accessible to all that want to use it.
24
These
facts help identify a concern for effectively managing
a nite resource that, if effectively managed, is useful
to everyone. Consequently, one concern or aim of
the investigation is to establish principles for effec-
tively managing the spectrums use.
We can further rene this aim by xing upon
another fact. Recall that in addition to the spec-
trums being a ubiquitously available natural
resource, more people wish to use it than can
comfortably t on it. That is, we cannot distribute
the spectrum so as to satisfy all those interested in
broadcasting. Unlike the above tragedy of the
commons, the conict over the distribution of the
broadcast spectrum cannot be dissolved by better
management, since some will be left without access.
Consequently, we must add to the above aim the
following: The theory must be capable of identifying
the conditions under which some get access to the
spectrum at the exclusion of others.
There are many principles capable of resolving
such conicts, including market procedures and the
principle might makes right. For this subject, the
principle chosen is subject to a further constraint,
namely, access to the spectrum must provide a
publicly acceptable criterion. The acceptability
qualication derives from the fact that we are
specifying broadcast ownership principles for a
democracy, and in a democracy political power is
ultimately the power of the public. As mentioned
above, democratic citizens view themselves as enti-
tled to exercising political power over the institu-
tional arrangement of society and as capable of
justifying their use of political power to those who
think differently. Since some citizens might wish to
use the spectrum, but are in fact denied access, its
distribution must be justied to them, since the
denial occurs despite their being the source of
legitimate political decisions. In brief, citizens must
be able to see themselves as the creators of a distri-
bution system that could deny them access to a
valuable resource. One way to achieve this is to
construct principles that are publicly acceptable to
all affected by the resources governing rules.
Identifying publicly acceptable conditions for
granting some access to the spectrum at the exclusion
of others is at the same time the identication of
publicly acceptable conditions under which some are
entrusted with the power to control a ubiquitously
available natural resource. Recall that one fact singled
out as especially important was the spectrums ability
828 Michael Buckley
to reach mass audiences. TV broadcasters in New
York, for example, are able to reach 7.3 million TV
households. Broadcasters that own multiple stations
in contiguous cities can reach as many as 70 million
TV households. Even a relatively unknown broad-
caster like Nexstar Broadcasting Group, which owns
and operates 49 TV stations, is able to reach 8.25% of
the U.S. population.
25
The power associated with broadcasters ability to
reach mass audiences raises practical concerns when
coupled with the fact that citizens have an interest in
receiving entertainment, leisure and politically rele-
vant content enabling them to realize their interests,
including their two political powers. Since citizens
are the source of legitimate distribution rules, it
would be rational for them to satisfy their interests by
distributing the spectrum to broadcasters capable and
willing of using it to fulll citizens needs. For this
reason, we are concerned with creating distribution
rules that favor broadcasters who are able and willing
to deliver content satisfying citizens interests.
But once distributed, those with access to use the
spectrum have the power to affect ideas precisely
because they have the power to reach mass audi-
ences. Recall, that those who control the medium
through which mass audiences receive much of their
news, cultural entertainment and local information
have to some extent the ability to affect the way
people think about the development of society and
their role within it. Expressed differently, entrusting
some with the power to use a mass-market medium
is not just a concern with satisfying a given set of
interests, it is also a concern with how those interests
will be shaped over time.
One reason for xing upon this fact is that in a
democracy, different people will typically wish to
both communicate and consume different content.
While democratic societies may exhibit agreement
on fundamental constitutional essentials, such as
basic individual rights and an electoral process for
establishing public representatives, there will be
considerable disagreement over other issues, such as
the role of government in public health and edu-
cation, or its foreign policy, or its tax structure.
Disagreement on these issues has a procedural outlet
within democratic societies by virtue of citizens
entitlement to elect representatives. But in order for
citizens to properly express their interests at the
ballot box, they must be properly informed about
the issues. Moreover, they must be well informed of
competing positions so as to both properly under-
stand their own position and to justify their use of
political power to those holding opposing views.
Consequently, our concern with power is not simply
about broadcasters ability to deliver content; it is
about how that power enables citizens to realize
their understanding of themselves as political agents
over time. Since this self-understanding includes
both an entitlement to affect government through
voting procedures and the capacity to justify the
exercise of this entitlement to other citizens, we are
concerned that broadcasters deliver sufciently
diverse content to help realize this conception.
The salient facts about the broadcast spectrum and
the reasons for xing on them, although not
providing resources from which we can derive a
procedural device, help identify certain concerns the
theory and its associated principles should answer.
Given these concerns, it is now possible to formulate
a set of conditions against which we can measure the
ideals informing the hypothetical situation and their
associated principles. These conditions are as follows:
(1) The theory must effectively manage the distri-
bution of the broadcast spectrum by providing
a publicly acceptable criterion for settling con-
icts over who receives access and who is de-
nied access to the broadcast spectrum. I will
refer to this as the distribution criterion.
(2) The distribution criterion should grant
access to those willing and capable of creat-
ing broadcast content that affects the ideas,
attitudes and opinions of citizens in a man-
ner satisfying their interests, including their
entitlement to affect government through
informed voting practices. I will refer to this
as the capabilities criterion.
(3) The broadcast content expressed in (2)
should be of sufcient variety to place with-
in the hands of citizens the power to shape
government over time and to justify their
exercise of this power to others in a manner
that generates the public acceptability ex-
pressed in (1). I will refer to this as the
diversity criterion.
The relation between these three conditions and
the reasons for thinking broadcast media ownership
Two Principles of Broadcast Media Ownership for a Democratic Society 829
is a subject falling within the domain of the political is
straightforward. By way of summarization, those
reasons xed upon facts and expressed underlying
concerns about how those facts impact democratic
citizens. These concerns were simply rearticulated as
the above three conditions. The purpose of specifying
these conditions is to create criteria against which we
can measure the appropriateness of the hypothetical
choice procedure and its accompanying principle.
Recall that according to political constructivism, the
correct principles are those constructed by way of a
procedure modied to t the subject in question. The
relation between the procedural device and the
principles generated within it is one, whereby the
procedure places appropriate constraints upon
rational deliberations pertaining to social justice. Any
person rationally deliberating under these constraints
will settle upon a particular set of political principles.
But the question remains: What makes these con-
straints the most appropriate? We are left to inquire
about the justication of the concepts informing the
procedural device and the sense in which it is
appropriate to the subject in question.
The last step in the argument is to show how my
proposed hypothetical procedure and its associated
principles satisfy the above criteria. Before begin-
ning, it is worth repeating the defended principles. It
was stated as follows:
1. A: Access to the broadcast spectrum is
reserved for those (a) capable and willing to
deliver content that (b) enables citizens to real-
ize their interests, including their two political
powers (i.e., their entitlement to affect gov-
ernment and their capacity to justify their use
of this entitlement to others) and, (c) when
competing parties are equally capable and will-
ing to deliver content satisfying (Ab), priority
will be given to those whose content satises
consumer interests not yet represented on
broadcast media.
B: When all the conditions of A are satised,
normal market forces can enter so as to maxi-
mize efciencies in the use of the broadcast
spectrum.
I begin with the rst criterion the distribution
criterion. Clearly principle 1A(a) provides a distribution
principle for deciding who gets access to the spectrum.
Those eligible are those willing and capable of deliver-
ing content. Principle 1A(bc) provides conditions
under which someone can be denied access; namely,
denial may ensue if the content offered does not enable
citizens to realize their two political powers or if the
content is already offered by other like-minded broad-
casters. What needs to be decided is whether the set of
principles chosen are publicly acceptable. One way to
phrase this question is as follows: Suppose someone is
denied access to the spectrum; does that person have
grounds to complain that the distribution illegitimately
discriminated against his or her claim?
One reason for thinking principle 1AB is publicly
acceptable is that the set of principles takes all
interests into account. This is evident from the
proposed hypothetical procedure, which species a
point of view forcing us to consider all interests.
Recall that as representatives we do not know the
partys interest we represent, and are instructed to
choose as if the parties preferred the partial satisfac-
tion of their interests to none at all. Consequently,
representatives are not prepared to engage in an all-
or-nothing bargaining stance. Instead, representa-
tives choose the principle providing the greatest
likelihood of satisfying any particular interest. Since
the principle follows from a point of view that
considers all interests, any distribution of broadcast
spectrum conforming to this principle would also
have weighed all interests. While those denied access
may feel disgruntled, they have no basis upon which
to claim the distribution illegitimately discriminated
against them. Quite the opposite, the principle of
distribution carefully weighs all interests and
attempts to balance them equally. As a result, there
are good reasons for thinking the principle and its
associated procedural device satises the distribution
condition.
What about the capabilities criterion? Since the
broadcast spectrum is a resource of notable conse-
quence, our principles and theory should provide
directives encouraging the efcient and productive
use of the spectrum. Principle 1A(ab) specically
states that the distribution of the spectrum should
be allocated to those capable and willing of deliv-
ering content that enables citizens to realize
their two political powers. Consequently, the
capabilities criterion is directly addressed. More-
830 Michael Buckley
over, the capabilities criterion is further realized by
the incorporation of 1B, which states that when
certain substantive ideals outlined in 1A are met,
normal market forces can enter so as to maximize
efciencies in the use of the broadcast spectrum.
The inclusion of this second principle provides the
ordinary economic incentives that help encourage
the efcient use of resources. While the unique
character of the broadcast spectrum as a resource
invalidates the application of a market principle as
the sole governing principle (for reasons I will
discuss below), the market principle still has a place
among a lexically ordered set of principles. As a
secondary principle activated after certain aims are
achieved, a market principle helps ensure the pro-
ductive use of the spectrum by establishing a price-
coordinated system of resource allocation that
allows producers to gauge consumer demand. At
the point beyond which certain democratic ideals
are met, ordinary market forces are appropriate.
Consequently, the inclusion of 1B helps satisfy the
capabilities condition by distributing spectrum to
productive users.
Finally, does the proposed theory satisfy the
diversity condition? As principle 1A(c) establishes a
criterion for deciding between competing content
providers by giving priority to programming serving
interests not yet met by broadcasters, the principles
create conditions for the production of varied con-
tent. Suppose a broadcaster wants to create a channel
targeting the Hispanic community and is competing
for spectrum against a broadcaster who wants to
create a channel targeting the Chinese community.
Suppose further that there already exists a channel
serving the Hispanic community, but no channel
serving the Chinese community. In this case, pri-
ority would be given to the latter, since its interests
are not yet served.
A further qualication, however, is that the pro-
ducer be capable of delivering content. This means
the station needs to be economically viable in order
for the license to be granted to the producer of
content. Consequently, while the principle does not
exclude the possibility of channels broadcasting
questionable content, any such channel would need
the support of viewers and advertisers to remain
viable. In this sense, no governmental authority
censures content. Content is censured procedurally
through normal economic outlets; the principle
merely establishes the conditions for a diversity of
viewpoints and consumption options.
The diversity criterion, however, requires not
merely the production of diverse content, but the
delivery of content that helps realize a particular
conception of citizenry. Recall, one fact about
democratic societies is that the citizenry typically
encompass a variety of values manifesting themselves
in certain disagreements over political issues, such as
the role of government in public health and edu-
cation, or its foreign policy, or its tax structure.
Another fact is that citizens view themselves as the
source of legitimate governance, and realize this
entitlement at the ballot box. In order for citizens to
impact governmental choices in a manner consistent
with their values, they require access to information
about propositions and representatives, and the likely
outcomes of those decisions should they be realized.
Without this information, citizens cannot align their
interests with their votes. Moreover, citizens need
access to a diversity of viewpoints not merely to
double check their interests, but also to defend those
interests against competing perspectives. In addition
to viewing themselves as a source of political
authority, citizens see themselves as capable of jus-
tifying their political views to those holding different
views. In order for citizens to realize their self-
conception and for democracies to maintain their
integrity, citizens need access to relevant political
information from diverse sources. The combined
effect of principle 1A(a-c) provides a directive sat-
isfying this aim, since it favors content providers
delivering politically relevant content reecting the
diverse makeup of a democratic society.
In light of these considerations, the two principles
of broadcast media ownership identied in 1AB and
its associated hypothetical procedure satisfy the
conditions required of any such principles, namely,
the distribution, capabilities and diversity conditions.
In virtue of satisfying these conditions, the principles
function so as to achieve the aims expected of
principles governing broadcast ownership. This
function arises from reasons offered for thinking the
subject belongs to the political domain, reasons that
x upon salient facts about the subject. Conse-
quently, the principles and its associated hypothetical
procedure are grounded on reasons that x upon
Two Principles of Broadcast Media Ownership for a Democratic Society 831
facts and, therefore, are justied in a manner related
to but not reduced to non-moral facts.
Notice that principle 2B, which states that access
to the broadcast spectrum is decided procedurally
through a price-coordinated system of exchange in
an open market subject to normal anti-trust laws,
does not satisfy these conditions insofar as it does not
guarantee the satisfaction of the diversity condition.
Any constructivist theory of broadcast media own-
ership must offer principles satisfying all the condi-
tions. Failure to satisfy one condition invalidates the
appropriateness of the principle. Consequently,
principle 2B is inappropriate not simply because it
would not be chosen in the hypothetical choice
procedure, but because it fails to function in a
manner required of any such principle governing
broadcast media ownership.
Notice also that I have not claimed principle 1AB
is objectively valid. My claim is simply that in virtue
of the facts of the subject, principle 1AB is justied
and principle 2A is not justied. Establishing
objectivity, which is clearly an aim of constructiv-
ism, is a more difcult matter, and this article does
not establish the objective validity of the principles
for two reasons. First, it merely compared two sets of
principles, but clearly we can add to the list. Suppose
in addition to 1AB and 2A, I included the following:
A: Access to the broadcast spectrum is in part
reserved for elected ofcials communicating
the essential functioning of local and federal
government to the public.
B: That part not reserved for elected ofcials
will be distributed procedurally through
a price-coordinated system of market
exchange.
This set of principles might satisfy the conditions
outlined above, in which case we would have two
justied sets of rivalrous principles. However, in
order to establish objectivity one needs to show that
the defended set of principles has no justiable
alternative.
Especially challenging to the constructivists aspi-
ration toward objectivity is that because the facts of
the subject are picked out as particularly salient,
there often exists an alternative set of facts that can
orient our thinking in a different direction. For
example, the facts about citizens and a democratic
society identied above is just one set of facts we
could x upon. Alternatively, a constructivist could
place greater emphasis on a citizens rights to privacy,
or citizens productive and consumption preferences.
These conceptions would alter the design of the
hypothetical choice procedure, which could result in
a different choice of principles. It might also change
the conditions against which the procedure and its
principles are justied, since the reasons for focusing
on alternative conceptions of citizens might raise
different concerns.
As I have argued elsewhere, while these matters
complicate the aspiration toward objectivity, they do
not completely preclude it. What is lost is any claim
asserting the objectivity of a particular substantive set of
principles. The facts about a political subject will likely
set wide enough parameters to admit of rival concep-
tions, but the number of possible alternatives is limited
and each rival conception will share certain character-
istics. We can imagine, therefore, that after developing
several rival constructions addressing the same subject
and after justifying each in a manner similar to that
presented above, the several theories would share cer-
tain limiting features that can serve as the objectively
valid elements of a constructivist theory.
Constructing alternative justied principles and
abstracting their limiting features is well beyond the
scope of this article. I mention it here to guard against
any misunderstanding of what is accomplished in this
article, and to suggest the further work required of any
full theory of broadcast media ownership. Having said
that, what this article does establish is the insuf-
ciencies of a market principle such as 2Aas the guiding
principle of broadcast media ownership.
Given the debates surrounding broadcast media
ownership, this is no small task. The push to
deregulate the industry is growing, but the above
argument shows that this push should not lead to a
deregulated broadcast industry governed solely by
antitrust law, since the principle cannot function in
the manner required of it. Moreover, if we agree on
the above reasons for thinking broadcast media
ownership belongs to the political domain, we have
a solid foundation for arguing in favor of and
accepting principle 1AB.
832 Michael Buckley
Notes
1
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
(1969).
2
Clear Channel was in the process of divesting over
400 radio stations during the writing of this article.
3
Kagan Research, LLC.: 2006. Radio Financial Data-
book, 7th ed., p. 40.
4
FCC. Roundtable Discussion on Media Owner-
ship Policies, MM Docket Nos. 01235, 96197,
92264, 94150, 87514 and CS Docket Nos. 9892 and
9685.
5
For a list of the many rules under consideration,
visit http://www.fcc.gov/ownership/rules.html.
6
John Rawls.: 2001. Justice as Fairness: A Restatement
(Cambridge: The Belknap Press of Harvard University
Press), pp. 1012, 8083.
7
For some insight into these debates, see the follow-
ing: Norman Daniels.: 1996. Justice and Justication:
Reective Equilibrium in Theory and Practice (Cambridge:
Cambridge University Press); Peter Singer.: 1974.
Sidgwick and Reective Equilibrium, The Monist,
58, pp. 490517; Fred DAgostino. 1988. Relativism
and Reective Equilibrium, The Monist, 71, pp. 420
436; James Blachowicz.: 1997. Reciprocal Justication
in Science and Moral Theory, Synthese, 110, pp. 447
468; Haslett, D.W.: 1987. What is wrong with
Reective Equilibria? Philosophical Quarterly, 37(148),
pp. 305311; Jane English.: 1980. Ethics and Science,
Proceedings of the XVI International Congress of Philosophy;
Kai Nielsen.: 1982. Considered Moral Judgments
Again, Human Studies 5, pp. 109118.
8
Michael Buckley.: 2007. Political Constructivism
and the Nature of Objectivity (unpublished).
9
For examples of what I consider to be misguided
applications of constructivism to applied ethics, see: Russ
Manning.: 1981. Environmental Ethics and Rawls The-
ory of Justice, Environmental Ethics 3, pp. 15565; Brent
Singer.: 1988. An Extension of Rawls Theory of Justice
to Environmental Ethics, Environmental Ethics 10, pp.
21731; Peter Wenz.: 1988. Environmental Justice (Albany:
SUNY Press, 1988), chap 11.
10
I do not suggest that this is the only correct point
of view from which to consider the subject. As I
explain later in this article, any point of view and
accompanying principles satisfying conditions stemming
from reasons for thinking the subject belongs to the
political domain is a correct point of view.
11
By lexically ordered I mean an order which
requires the satisfaction of the rst principles before we
can move on to the second.
12
While anti-trust legislation is typically thought of as
beneting the consumer, its economic justication lies
in the prevention of monopolistic powers that might
distort the efciencies of price-coordinated systems of
exchange, and thus reduce total output compared with
competitive markets. See Thomas Sowell.: 2000. Basic
Economics: A Citizens Guide to the Economy (New York:
Basic Books), pp. 8995. For a classical defense of mar-
ket-based distribution of the broadcast spectrum, see
R. H. Coase.: 1959. The Federal Communications
Commission, Journal of Law and Economics, vol. 2,
pp. 140.
13
http://www.fcc.gov/omd/history/.
14
In the early days of broadcast, when the new tech-
nology of wireless transmission captured the imagination
of thousands of ordinary amateurs and eventually the
commercial interest of business all who wanted access
the free pipeline of broadcast communications did so.
With radio transmission costs inexpensive, access to the
spectrum both free and readily available, and interest in
broadcasting high, more people wanted to broadcast
than could comfortable t on the spectrum. The
November, 1901 issue of Hertzian Waves, a mechanical
and electrical hobbyist magazine, included construction
information for a simple transmitter and receiver similar
to what Heinrich Hertz had used. Another resource for
aspiring broadcasters was How to Construct An Efcient
Wireless Telegraph Apparatus at Small Cost. See http://
www.earlyradiohistory.us/sec012.htm.
15
FRC FIRST ANNUAL REPORT at 2, 9 (1927).
16
http://www.wireless.fcc.gov/auctions/default.htm?job
=auction_summary&id=37. In January 2006, an auction
for construction permits attracted 214 qualied bidders,
with only 96 winning construction permits. See http://ww
w.wireless.fcc.gov/auctions/default.htm?job=auction_sum
mary&id=62.
17
In a statement on U.S. District Court decision
against Stephen Dunifer dated June 17, 1998, then FCC
Chairman William Kannard noted the FCCs success
the last two years in shutting down over 200 pirate
stations. See, http://www.fcc.gov/Speeches/Kennard/
Statements/stwek847.html.
18
http://www.ionmedia.tv/about/.
19
See http://www.galluppoll.com/content/Default.
aspx?ci=26053&VERSION=p; http://www.mediaweek
.com/mw/news/recent_display.jsp?vnu_content_id=100
3522023.
20
According to the Radio Advertising Bureau, the radio
industry earned $21.5 billion in 2005, 73% of which, or
$15.6 billion, was from local advertising. See http://
www.rab.com/public/pr/revenue_detail.cfm?id=64.
Two Principles of Broadcast Media Ownership for a Democratic Society 833
21
PQ Media, MAGNA in Madison and Wall, Febru-
ary 2006.
22
Kagan Research: 2007. Broadcast Investor: Deals
and Finance, No. 497, p 18.
23
From Congressman Fred Uptons Luncheon Address
to the Media Institute, February 16, 2006. See http://
www.mediainstitute.org/Speeches/Upton_02162006.pdf.
24
Kaul, Inge, Isabelle Gurnberg, and Marc A. Stern, eds.:
1999. Global Public Goods: International Cooperation in the
21st Century (New York: Oxford University Press), p 5.
25
http://www.nexstar.tv/nexstar/about.asp.
Philosophy Department,
Lehman College, CUNY,
250 Bedford Park, Boulevard West,
Bronx, NY 10468, U.S.A.
e-mail: michael.buckley@lehman.cuny.edu
834 Michael Buckley