Lots of people, including some whom I respect, are upset over the FCC's plans to allow greater media consolidation. What seems to be lacking, however, are any empirical studies or hard facts that would confirm all the predictions of ill effects. Almost all of the articles and weblog postings written on the subject make predictions that seem to me to be far beyond what any factual evidence would support.

It reminds me of a case I worked on when clerking at the D.C. Circuit last year: Sinclair Broadcast Group v. FCC. The case involved a similar FCC rule that allowed common ownership of two television stations in the same local market only if one of the stations was not among the four highest ranked stations in the market and if eight independently owned, full-power, operational television stations remained in that market after the merger. (This was called the "eight voices" rule.)

What struck me about the case was that while the FCC's purported justification for this rule was to increase viewpoint diversity in the presentation of local broadcast news, it had literally no genuine empirical evidence that would show whether the rule actually had any effect whatsoever on such diversity. (The main piece of "evidence" that the FCC had trotted out again and again was a 1997 survey by Roper that merely showed the percentages of people who watch news programming on television.) Given that Congress had directed the FCC expressly to repeal any rules that lacked sufficient justification, the court had little choice but to remand the rule to the FCC for further review.

So, what bothers me about the current debate over consolidation is that people are making all these dire predictions of woeful effects, but I just don't see the empirical evidence for it. I suspect that the predictions have as little bearing in reality as did the FCC's "eight voices" rule, although I would be happy to be informed of any empirical evidence that might exist.