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Document Type

Article

Publication Date

6-2008

Publication Citation

60 Federal Communications Law Journal 407 (2008)

Abstract

This Article explores whether the language of a broadcaster's program appropriately defines an antitrust market, consistent with First Amendment and antitrust principles. In its evaluation of the 2008 private equity buyout of Clear Channel Communications, the Department of Justice ("DOJ") defined the antitrust market by the language of the broadcast, as it had done for the 2003 merger of Univision and Hispanic Broadcasting Corporation. This Article uses social science research on Spanish and English-language radio and television to evaluate that decision. It argues that the distinct content and messages that characterize Spanish and English-language programming show that market definition is content-based and subject to strict constitutional scrutiny; however, that distinctiveness alone is insufficient to establish a separate antitrust market. Through an examination of advertiser and audience "substitution" between program languages, advertiser alternatives if faced with a price increase by merging parties, and a "supply-side" antitrust analysis of broadcaster "entry" between languages, the Article concludes that broadcast markets are not rigidly divided by language, but operate as one marketplace of ideas, with audience and advertiser loyalty contestable between languages.