Wily Like a Fox (Broadcasting): The Contested Terrain of Media Diversity Policies

The concept of the “public interest” has been at the center of American broadcast regulation since 1927. While historically stakeholders have disagreed about who constitutes the “public” and what counts as its “interest,” the Federal Communications Commission (FCC) has anchored its policy decisions in a three-pronged definition; its role is to assure that competition, diversity, and localism flourish in the broadcasting sector. Much like the “public interest” itself, these terms have been subject to profound debate. As this paper addresses, in the 1980s and 1990s, minority media rights activists clashed with free market enthusiasts over the meanings of, and metrics to determine, a diverse broadcasting landscape. As the FCC and federal courts embraced a “marketplace approach to regulation,” one that privileged a race-neutral conception of marketplace competitors, civil rights organizations like the National Association for the Advancement of Colored People (NAACP) asserted that racial diversity was a central component of a media system operating in a multiracial society.

The apotheosis of these tensions, as this paper demonstrates, was the NAACP’s challenge to the legitimacy of the Fox Broadcasting Network in the early 1990s. While the core legal issue in this fight was the extent of foreign ownership of Fox—and the degree to which Rupert Murdoch had lied to the FCC in his initial filings—the case importantly hinged on competing definitions of diversity. The resolution of this dispute, in which the FCC willfully disregarded statute and evidence to side with Fox, both further eroded the salience of racial diversity to broadcasting policy and continued a Commission practice of waiving established regulations to enable the growth of Fox. Anchored in the NAACP-Fox case, this paper thus reveals the instability of the “marketplace approach to regulation” and underlines how it operated as a cudgel against minority media rights.