This paper sets out to examine the extent to which the program choices viewers have on television today has moved to the long held objective of U.S. regulatory policy of diversity. Diversity as in diversity of voices and diversity of programming formats.The article starts with a review of the policies that attempted to achieve diversity in the days of dominance by three networks and three or fewer VHF local stations in most markets. It then looks at the arrival of cable and other broadband technologies that have expanded the channel capacity for home television sets. Finally, it asks whether, if at all, related public policy efforts are needed to further this well established goal.In the 70 years since the Federal Radio Act several axioms have emerged that have guided FCC regulation of the structure and programming of broadcast licensees. These essentially are how the FCC has come to define broadcasting in the public interest:

• diversity
• competition
• localism

Competition and Diversity

The FCC has actively promoted diversity of voices in broadcasting since the 1940s. In 1941 it required NBC to divest one of its two networks. And shortly thereafter it promulgated its ruling barring common ownership of two same type broadcast stations in a market.⁽¹⁾ Indeed, the FCC has been very clear about the lengths it thought it must go to promote diversity:

A proper objective is the maximum diversity of ownership that technology permits in each area. We are of the view that 60 different licensees are more desirable than 50, and even 51 are more desirable than 50.⁽²⁾

The principles of competition, diversity, and localism have been central of the FCC's interpretation of regulation of broadcasting and the Courts have frequently agreed to use these criteria for decisions. There has been an assumption that promoting competition -- by limiting multiple ownership of stations within a market -- will lead to diversity of content. The Federal Communications Commission has tried to influence diversity in broadcast television programming through regulations limiting or restricting broadcast outlet ownership. These include:

• Standards for awarding licenses that give added weight to ownership by racial minorities;
• Limit to the number of outlets that may be controlled by a single entity in a local market
• A limit to the number of licenses that may be owned nationwide by a single entity or the aggregate audience share that a single entity may have access to.

There is no evidence that any of these policies on ownership has in fact resulted in greater (or less) diversity of content. The assumption behind granting preference to racial minorities is that minority owners are more likely to provide programming aimed at minority audiences than white owners. The FCC's limits on multiple local ownership ("duopoly") were also imposed with the assumption that more different voices could result in greater programming diversity. There has never been substantiation that joint ownership would affect broadcasters programming choices in local markets, nor has the FCC ever conducted empirical research on single versus joint ownership operations. We do have some evidence that newspapers under common ownership in a single city do differentiate themselves.⁽³⁾

Under rules prior to the Telecommunications Act of 1996, no single entity could control more than 12 television stations (14 under some limited circumstances) or reach more than 25% of the national audience. However, the television networks, through which most of the population received its programming, have no limits on the number of affiliates. Given the economics of broadcast programming, therefore, the dominance of three (now four) networks undermines the intention of fostering content diversity through ownership limits.

Only the "right kind" of diversity? Attempts of broadcasters to break out of the programming mainstream have been dealt with harshly by the FCC and the Courts when the programming ventured too far afield. The Commission made its displeasure known in 1970 when a college FM station broadcast an interview with Jerry Garcia of the Grateful Dead that included some four letter words for emphasis.⁽⁴⁾ A few years later, WGLD, a group owned station in the Chicago market became the highest-rated station with a so-called topless radio live call in format. The FCC ruled it obscene, fined the owner $2,000 and the format was dropped.⁽⁵⁾ Perhaps the most well-known case in this area is FCC v. Pacifica Foundation.⁽⁶⁾

Here, New York station WBAI-FM aired a program about contemporary attitudes toward language. In this context it played a routine by comedian George Carlin in which he says the "words you couldn't say on the public...airwaves." Upon a complaint from a listener, the FCC ruled that, while not legally obscene, this language could not be broadcast at times when children might be listening (later judged to be variously after 10pm or midnight).

Note that these cases, all from the radio world, involved an educational station owned by a college, a group owned commercial station, and a non-profit foundation-owned station. All three got into trouble in the process of being "diverse."

Network Restrictions

The FCC has ruled on the relationship of the networks with their affiliates presumably to help ensure some latitude among local stations to provide local programming and reduce the financial clout of the networks. For example, in 1970 the FCC adopted its financial interest and syndication rules. These prevented the dominant networks from holding a financial interest in the programs provided to it by independent producers. Similarly, they were forbidden to engage in domestic or international program syndication. The Commission's objective was primarily to strengthen the negotiating position of independent television program producers with the networks and perhaps prevent networks from favoring in their schedules programs in which they had a financial interest.⁽⁷⁾ The rule, phased out in 1993, had no discernible effect on program diversity.

A more focused attempt to promote diversity was the Prime Time Access Rule (PTAR)⁽⁸⁾, implemented in 1970. The rule effectively prevented the three networks from programming more than three hours during prime time. The assumption was that in limiting the amount of network programming, local stations would have greater latitude in providing more locally-based programming and expand the opportunities for independent producers of quality first run programming. The PTAR created new opportunities for producers and syndicators of game shows and off network re-runs. A very few quality local programs can be attributed to the action, such as "Chronicle" on Boston's WCVB (surviving even a change in the station's ownership). But there is little evidence, scientific or observable, that the PTAR has fundamentally affected the type of quality of programming available. It too has been eliminated.

New Video Competition

Competition today covers more than local broadcast television stations. The widespread adoption of cable, its growing channel capacity and the proliferation of programming services have all promoted the promise of greater diversity of content, increased segmentation of audience interests, and, therefore, heightened competition for the traditional players. Evidence is mounting that these expectations are indeed being realized.

Cable is available to 97% of households in the U.S. with television sets. Two thirds of those choose to subscribe to cable service.⁽⁹⁾ Another 5% subscribe to a DBS service.⁽¹⁰⁾ Besides retransmitting broadcast channels-- network affiliates, independent and public stations--they carry an increasing array of general interest and specialized channels. There are more than 25 basic nationally available programming services with significant distribution, among them Cable News Network, Black Entertainment Network, Nickelodeon, ESPN, MTV, C-Span, QVC, Discovery Channel, Arts and Entertainment Channel, CNBC, USA and the Family Channel. Some of these have ownership affiliations with broadcast networks (ESPN with ABC, CNBC with NBC). More of them are either independent or are related to the cable companies themselves. In addition there are 11 major pay cable services available, including HBO, The Disney Channel and Encore. And a third of television households have access to pay-per-view programming, often special events. Many of these and more listed in Table 1, which is a listing of the channels available with the "Platinum" package of the DirectTV DBS service.

In 1980 television accounted for 21% of advertising dollar expenditures. Cable barely registered at 0.1%. In 1995, broadcaster television had slipped to 19%, with the difference picked up by cable, to 2.2%.⁽¹²⁾ The difference between the two industries remains substantial . Still, cable took $3 billion from broadcasters in 1995 alone.

The impact of cable networks has been noticeable and measurable along the lines of providing increasing diversity to viewers and economical marketing opportunities to advertisers. Researchers have substantiated that the increase in cable programming has gone beyond just more of the same. There has been an increase in the diversity of program types as well as in the programs available at any given time of the day.⁽¹³⁾ The same study suggests (with some qualifications) that "many of the objectives of public television are being met by cable television. Indeed, virtually every type of programming offered on public television is not only available on cable television but in greater quantity as well.^"(14)

Videocassettes

Videocassettes are another source of competition for viewer time and another opportunity for expansion of content for the video tube. By 1997 more than 81% of homes with television sets had at least one VCR.⁽¹⁵⁾ This has translated into a booming business for cassette sales and rentals.

Cassette sales growth has been particularly significant. Whereas in 1983 cassette rental revenue was about five times cassette sales, the ratio in 1996 was about equal.⁽¹⁶⁾ This change has significance in light of research that indicates that it is in the sell-through market in which there has been the more substantial impact of diverse programming. Whereas the major studios continue to dominate the rental market, a second tier of independent video programmers and distributors have concentrated their efforts in providing content for special interest markets. Cassette sales have "increased the supply for minority tastes (e.g., new nontheatrical audience segments like children and housewives) together with narrow appeal programming (i.e., nontheatrical content categories like how-to and music videos).^"(17)

Competition, meaning competing owners of outlets, was thought to be the way to achieve diversity of content. However, despite regulations that limited the number of licenses that could be controlled by a single owners and prohibition of multiple ownership in any given market, competition was destined to be restricted to three network affiliated stations and the occasional independent, usually on the less desirable UHF band. Whether deserved or not, television was viewed by critics as a "vast wasteland."⁽¹⁸⁾ (Ironically, that label was provided in the days of Hallmark Theater, the Ed Sullivan and Sid Caesar shows and similar programming which today is often romanticized as the Golden Age of television).

Competition did not really come to television until the 1980s, as cable expanded and with it the choices facilitated by the greater bandwidth coaxial cable offered. The floodgates opened in 1975 when Time Inc.'s Home Box Office showed how earth satellites could cheaply distribute programming on a national basis. Programs from stations in Atlanta (WTBS) and Chicago (WGN) became widely available. And one by one the cable networks started: USANetwork, ESPN, CNN, Arts and Entertainment, Bravo, Nickelodeon, MTV, Black Entertainment Network, the shopping channels were among the pioneers. As cable penetration passed one third of TV households additional and more focused networks achieved substantial coverage: Comedy Central, the History Channel, FX, Food Channel, to name a few.

Competition Unfulfilled

In 1993, John Malone, the Chairman of Tele-Communications Inc., ignited the imagination - or scorn - of the video, telecommunications and popular press with a speech in which he asserted that his cable systems would be spending $1.9 billion to install fiber optic capabilities and seemed to promise "500 channels."⁽¹⁹⁾ TCI later backed off from much of its ambitious plans.⁽²⁰⁾

Almost concurrently, Time-Warner was working on its Full Service Network, a plan to combine traditional cable programming with video-on-demand, home banking, shopping and telephony service. It was eventually installed in 4000 households in Orlando Florida. But in 1997 Time-Warner announced that it was terminating the service at the end of the year.⁽²¹⁾

A third approach was hyped by six of the regional Bell telephone companies. SBC, Ameritech, Bell South, along with the GTE Corporation and the Walt Disney Company had formed Americast. PacTel (since merged with SBC) was part of Tele-TV, along with Nynex and the Bell Atlantic Corporation. The two consortia had, at one point, been looking at both operating and programming for video-on-demand systems.⁽²²⁾ The plans of the telephone companies, as with the cable companies, were premature for the state of the economics of the technology. Typical was the response of NYNEX, which undertook an 18 month trail of video-on-demand in Manhattan using analog technology:

"NYNEX has learned a great deal from this trial," said Walter Silvia, vice president, Broadband Marketing and Implementation.With technology moving so rapidly, we decided to start fresh and conduct a full evaluation of these systems over a one-year period," said Silvia.⁽²³⁾

The notion behind both the Full Service Network, video-on-demand telephone networks and the 500 channels of TCI was not that they would fill up their channels with a multitude of more networks. (One cynic, thinking about how one could fill up 500 channels, speculated that we might be reduced to the "Airline Baggage Carousel Channel"). Rather it was leading to a notion of one channel that would convey whatever an individual chose from a menu of hundreds of possibilities. This would be possible as video (as well as audio) programming is converted to digital form and stored in high capacity video servers. In theory (and in limited practice) any subscribers could choose to watch a movie, a rerun of an old broadcast show ("old" being one that was broadcast 30 minutes previously or 30 years earlier). Instead of being restricted to watching an HBO film only when it started at 8:00, viewers could see the movie whenever they wanted it to start, much as with a videocassette at home.

As an intermediate stage to this future service, capacities of 80 channel cable as well as the already digital DBS services allow what is called "near video on demand." Thus, a movie might start on one channel at 8:00, the same movie on a second channel at 8:30 and on a third at 9:00.

Network Ownership

There is, to be sure, no end to the controversy about who owns the cable programmers. Unlike broadcasters, cable operators have not had any blanket restrictions like the financial interest rules imposed on them by the FCC, the Justice Department or courts. Indeed. It was widely viewed as a positive incentive to encourage cable operators to invest in programming, the better to help the industry expand and create greater programming choices for viewers. Tele-Communications Inc, the second largest multiple system operator, will have about 18% of the national market at the end of 1997. It is also the most heavily invested in programming, with substantial stakes in cable networks, including The Discovery Channel, Learning Channel, Black Entertainment Network, Encore (movies), QVC and Home Shopping Network and Court TV. Time Warner, soon to be the largest cable operator⁽²⁴⁾ is likewise a major provider owner cable networks. Its services include HBO, CNN, Turner Classic Movies and TBS Superstation.

Whether the public is well served by having overlap between this type of financial interest in programming by cable companies that also tend to have quasi-monopoly status in individual service areas is a legitimate public policy issue. But this paper is about something else. Most viewers do not care about who owns what (though again, some might argue they should).

Access to channels

In 1976, when Ronald Regan was running for President against the incumbent, Jimmy Carter, he frequently asked a simple question to his audiences: Are you better off now than you were four years ago?

The equivalent question for the video viewer is: Are you better off today than you were 10 or 20 years ago?

The initial allocation of VHF channels by the FCC lead to a maximum of three channels in each market. UHF licenses were of little value or use until the later part of the 1960s, when the All-Channel Receiver Act of Congress started creating a universe of television receivers that could access UHF channels. Table 2, tracking the growth of licenses, tells a tale. As a result, well in to the 1960s 41% of communities could receive no more than four TV broadcast signals, making it unlikely that additional networks could be successful.⁽²⁵⁾ The Dumont Network struggled for six years in the 1950s.⁽²⁶⁾ At its peak in 1954 it had 195 affiliates. However, at that time there were only 233 commercial VHF stations. An additional 121 stations were UHF, for a total of 354 commercial stations.⁽²⁷⁾ But 317 stations were already affiliated with NBC, CBS and ABC, suggesting that Dumont had to settle for UHF affiliates as well as part-time affiliates.⁽²⁸⁾ In 1967 the United network lined up 106 stations, but folded in six months.⁽²⁹⁾

This was all before cable became a significant factor and before the All-Channel Receiver Act had a widespread impact.

In retrospect, three events set the wheels in motion that helped create the media environment of the 1990s.

• First was the All Channel Receiver Act of 1962. Congress required TV sets manufactured in the future include UHF receivers ⁽³⁰⁾
• Second was the FCC's Cable TV report in 1972.⁽³¹⁾ Although generally restrictive to the cable industry, it did set the terms for the spread of cable to the cities.
• Third, the FCC's Open Skies ruling in 1972.⁽³²⁾ This was the catalyst that was needed for inexpensive and flexible distribution of programming to the thousands of cable systems.

Other factors contributed. Walker and Bellamy make a strong case for the importance of the remote control -- particularly the modern infrared, random access remote control that has been standard with even the bottom of the line television sets since the 1980s.⁽³³⁾  Although the growth of cable systems and networks have expanded program choices, the remote control "has made those options substantially easier to review and select."⁽³⁴⁾   Remote control use has been positively associated with cable viewing and independent broadcasters, suggesting that the ability of viewers to easily move among channels has eliminated that barrier to establishing alternative networks.⁽³⁵⁾

More recently, direct broadcast satellites (DBS) have made it economically feasible for viewers in uncabled areas to get a high quality digital reception and a wide array of programming. DBS is also providing competition for the cable operators. The major DBS providers, DirectTV, EchoStar, and PrimeStar, provide anywhere from 130 to 200 channels of television and audio programming. In 1997 they reached 5 million households.⁽³⁶⁾

When viewers had few choices other than watching the local affiliates of the three commercial networks, the percentage of the audience tuned in to those networks in the evening was 90% or higher. As recently as 1985, the three networks had 75% of the TV audience. The share, including a fourth network, Fox, was 49% in 1996.⁽³⁷⁾ Conversely, viewership of cable networks exceeded 32% by 1996.

Impact at the Local Level

This paper also looks at channels and programming choices in several specific markets. To address this question at the grassroots level, this study looked at how the available television networks and cable channel capacity translates into viewing choices in a scattering of specific markets. Those markets are: Burlington, VT, Tallahassee, FL, Atchison, KS, Odessa, TX, Phoenix, AZ, Yakima, WA. These markets were chosen in a purposively random manner. That is, they were selected to suggest a range of markets and geographical location. They are akin to a focus group in intent rather than an attempt at a representative projectible sample. The cities were selected prior to any research into their broadcast or cable make up.

As seen in Table 3, the number of channels on the cable systems increased in every one of the selected markets from 1980 to 1996. This ranged from the relatively modest expansion of Phoenix's main system by seven channels, to 43, to more substantial upgrades, from the 12 channels offered in Burlington, Odessa and parts of Yakima to 52, 61, and 38, respectively.

Over the air signals increased as well in each of these markets, with all the growth coming by adding UHF channels. Phoenix, Burlington and Odessa each added two stations, the others added one each.

The increase in cable channels is in line with national averages, which expanded from 12 channels in the early systems to 30 to 50 channels today. Still, although the median cable system has between 30 and 53 channels (Table 4), more than half of all cable subscribers have access to 54 or more channels. This is because the systems installed in many major cities in the 1980s were designed as larger systems than the earlier installation in the towns and smaller cities that were the first places to get cable in the 1960s and 1970s.

Despite this expansion, the number of available channels in most cable systems has not kept pace with the number of networks looking for outlets due to both technological limitations, as well as government regulations. Since 1985, the number of cable networks has tripled, but, cable operators are often required to set aside as much as one-third of their available channels for retransmitting local broadcast stations, for "leased access" channels that can be rented out to home-shopping or other services, and in many cities for municipal and public access programs.

Table 5 indicates that the growth of basic, advertising supported cable networks has come in bursts. There was substantial growth in the mid-1980s, with a 100% increase, from about the 30 networks to 61 in 1987. This closely tracks the period following the largely deregulatory Cable Communications Act of 1982. There then followed a period of little net change until 1992. From then through 1996, the number of advertiser supported networks nearly doubled again, to 126.

Meanwhile, the number of premium channels, having been very stable through the 1980s and 1990s doubled between 1993 and 1996.

So despite access to a channel selection that would have seemed unimaginable to viewers in 1975, there still seems to be channel scarcity, at least from the viewpoint of those who want to get their network on a channel. This has lead to competition among program providers for space. Whereas in the early days of basic programming the cable operators paid programs providers a few cents per month per subscriber, today the networks are offering cable system operators a bounty for access to their systems.

In New York, Time-Warner, which controls the largest cable system in the country, with 1.1 million subscribers, was swamped with 30 programmers requesting to be given one of the 12 channels being made available by a major upgrade it was making to its system.(39) In their bid to get space in New York, the Animal Planet and the Learning Channel, both networks of Discovery Communications Inc., Home & Garden TV, owned by E.W. Scripps & Co., and Turner Broadcasting's Cartoon Network, reportedly agreed to make one-time payments of $5 to $8 per subscriber (or $5.5 to $8.8 million) and to charge no licensing fees for up to three years.(40)

Meanwhile, Time-Warner decided that the start-up Fox News Channel was initially not one of the channels it would add, leading to recriminations between Fox executives, Time-Warner officials and the Mayor. Time-Warner owns Cable News Networks, a FNC competitor. In the "you can't win" department, in 1996 some of the cable systems owned by Tele-Communications Inc, also faced with capacity limits, elected to add the Fox News Channels by deleting The Lifetime Channel, a service aimed at women. This elicited organized protest from women's groups and many prominent political figures.(41)

The cost to upgrade cable system is considerable. In New York, the 12 channel upgrade was costing Time Warner an estimated $400 million.(42) But for many cable system operators, the decision on when and how to add channel capacity is clearly an economic one. Their projection for their return on their the capital expenditure would include factors such as:

• Roughly one third of households that have televisions and have access to a cable service have so far chosen not to subscribe. It may be presumed that in some way each nonsubscriber has an economic reason: either they truly cannot afford a subscription, or they can afford it but have decided it was not of value to them. What programming can they add to their system at the margin to attract current nonsubscribers? Will a second or third all-news channel make a difference? The Animal Planet or Ovation channels? What combination will bring into the fold those currently on the outside?

• They also will need to keep an eye on current subscribers who could defect to new competitors. With DBS services offering two or three times the number of channels, the major barrier to their faster growth is likely to be their limitations on providing the local broadcast outlets in each of their markets. New terrestrial microwave wireless services may not have this problem.

• Would the upstart networks they could add provide enough additional revenue, either through direct payments for carriage or by generating enough advertising revenue?

Discussion

For its first 30 years as a commercial medium the terms "television" and "broadcasting" could be used interchangeably. Gradually over the following two decades, our notion of television has broadened. It is not defined by a technology - broadcasting - but by a format - video with audio.

So whether distributed by terrestrial towers at VH or UH frequencies, or by satellites at 22,300 miles in the sky, or via a coaxial or fibre optic cable, or a magnetic tape, an optical disc, or even by copper telephone wire, it is all television.

And for more than 30 years one of the highest priorities for federal policy was to promulgate regulations to create conditions that would maximize the number of program choice viewers had, consistent with another (and often conflicting) priority of localism. Indeed, were it not for the objective of making broadcast a local medium, and the resulting need to reuse the 12 VHF frequencies in close geographical proximity to one another, the United States would likely have had seven or more national networks from the start.

Still, all the machinations could not accomplish what communications technologies have ultimately achieved. From Burlington to Atchison to Yakima viewers have access to dozens of channels, offering a large variety of subjects, beyond the mass audience offerings that the three older networks continue to provide.

Furthermore, given the rapid changes in the technology of broadband communication, the current state of access should not be viewed as an endpoint. Although trials of video-on-demand, video dial tone, and higher capacity cable system have been slowed or put on hold, the outline for the continued evolution of access is clear: more choices of outlets (your cable company, your DBS provider, your cable company, your telephone company, maybe your electric company). And the technologies they will be using will accommodate increasing numbers of program providers. The change from analog to digital promises to provide the cable industry with the same capability of squeezing more content over existing cable as it did for the DBS providers in multiplying the channels broadcast by each transponder.

One company has demonstrated software that would allow cable systems to provide "as many as 24 crisp-looking digital-TV channels in the space now used by one analog channel."(43)

Anyone following the path of information technologies knows that there is as much hype as there is ripe, so Imedia may not have a workable product. But it is likely that there will be digital compression used by cable companies, giving them some multiple of their current capacity without the need to add physical wires.

Meanwhile, the Internet already provides the infrastructure for audio on demand. The development of server and client pieces for streaming audio has given rise to access to radio stations from around the world.(44) For classical music lovers, for example, the occasional local classical music station in some cities is currently supplemented with class music stations available from Canada, Australia, England, Chile, Taiwan, as well as a "station" with no FCC license, that exists only over the Internet. The cost of starting such a station ca be measured in the thousands of dollars, versus the hundreds of thousands for an over-the-air station.

In more limited and primitive fashion, video is also available over the Internet. Dozens of traditional and new players already provide video programming, inlcuding Fox News Channel, CNBC, Britain's ITN, Greenpeace UK, Iran Sima TV and the University of Southern California.(45) As television it is slow, small and grainy. On the other hand, it does work at 28.8 kps and one would recognize it as television. With the spread of cable modems, telephone based digital services and satellite Internet services all offering much higher bandwidth, video over the Internet offers an intriguing possibility for the type of extreme narrowcasting that would never be possible using either spectrum or even cable as it is now configured.

Policy Implications

There are, to be sure, issues that can be raised about the content, availability, and quality of video programming in the future, among them:

• Ownership and control of the program networks and cable systems.
• Affordability and therefore access to programming
• Quality and variety of the programming
• Loci of controls: FCC, Courts, Justice Department, FTC, other national and international entities.

Ownership and control. Perhaps most vexing for many is the seeming ever-growing concentration of ownership among programmers and between program networks and cable systems. TCI has long had financial interests in many cable networks, as has Time Warner, the two largest multiple system operators. The merger of Turner Broadcasting with Time Warner seemed to add to that interlock.

Although this paper has not gathered the data to examine this issue more closely, there are factors that merit further study(46) that will help determine if there is indeed a need for concern for concentration in ownership of video programming, networks and outlets.

First, while mergers are going on, new players keep entering the market. Some of them are big corporations themselves, such as Microsoft (with MSNBC and local news and information Web sites) or News Corp (providing an all new competition to CNN as well as bankrolling a now successful fourth broadcast network). Others are truly new players, such as the Bloomberg Information TV financial news cable network.

Second, as the number of channels proliferate, the ability of a small group of players to control most programming and/or outlets becomes more difficult, for both economic and market reasons. As the video market looks more and more like a magazine newsstand, the model for diverse and vigorous competition looks more like print than old television.

Access and affordability. Someone has to pay for the programming and the means of accessing it. At $30 or more per month for a modest package of cable programming beyond the retransmitted broadcast networks, issues of affordability arise. Is it equitable to have programming that many people cannot afford?

This question could have been asked in 1950, when a 9 inch black and white television set cost $4000 in 1997 dollars. It could be asked about the newsstand, which may contain 300 or 400 magazine titles, but at $4 or $5 per issue per month are not affordable to everyone in unlimited quality. It could be asked about the bookstore or the daily newspaper.

With virtually every TV household in the country passed by the cable as well as several DBS signals, access is not the issue, but affordability may be, The public policy questions are what responses, if any, are warranted and what should they be?

Quality and variety of the programming. In one of the first issues of Wired, Mitchell Kapor, the creator of Lotus 1-2-3 and more recently the Electronic Frontier Foundation, addressed the relationship between quantity and quality of programming head-on:

Even if we have simple, powerful, innovative gizmos in our living rooms, we still have to face the question of whether there is anything worth watching. For practical purposes, it's not enough just to say that a diversity of sources and uses of information ought to be a public policy goal. It is necessary to be more specific: A diversity of what? Diversity is not just quantitative. It's also qualitative. It comes in degrees and has dimensions. Achieving real diversity raises fundamental issues of political control, architectural design, and business strategy.(47)

However, as Kapor presumably knows, there is not much that government can -- or should --  do to influence programming, so long as the First Amendment remains the operating law of the land. The Corporation for Public Broadcasting, through the Public Broadcasting System has been trying for decades to raise the cultural level of programming. A successful show or series may get two percent of the viewing audience.

Anyone who spends some time surfing through the offering of a middle-sized cable system should find a wide range of subject content and quality. Sports, a hugely popular category, used to be confined to football, baseball and basketball. Today, hockey, soccer, bass fishing, volleyball or lacrosse can be found for those audiences that had heretofore been unserved. The Discovery Channel, the Learning Channel, and the History Channel have both reruns of older documentaries as well as original programming. Two C-SPAN channels serve the diehard politicos. Three all-news and information are channels are widely available, as are a plethora of religious, ethnic and foreign language channels. The catch may be affordability (see above). Still, no one has as yet proposed a way of providing this diversity without someone paying for it. And at the moment there isn't enough advertising to pay for it all.

Loci of controls: FCC, Courts, Justice Department, FTC, other national and international entities. As less and less of the programming viewers select comes through the nominally regulated broadcasters, federal regulation has decreasing relevance. The Courts can only act on the most egregious cases of libel or indecency. The Justice Deportment and Federal Trade Commission continue to have crucial roles in monitoring both mergers and restraints of trade. Both these players, however, need to deal with an operating and economic landscape that defies simple rules. What is the relevant market for determining concentration of cable systems? Is it in the public interest to allow a major media conglomerate (such as News Corp.) to use its financial muscle to offer a service that would seem to add to competition (such as an all-news channels or a DBS service), yet makes that company perhaps a more dominant player? And increasingly we will have to contend with antitrust and trade institutions from the European Union or other venues, as satellite and Internet communications easily cross national boundaries.

Conclusion

The issue, as is often the case, is whether one wants to see the glass as half full or half empty. There can be no questioning that cable (wired and wireless) systems, DBS, VCRs and even the Internet have substantially increased the diversity, quantity and quality of television over the past two decades. They have helped achieve the diversity of programming that has been a key element of public policy. The answer to the question in the title is that technology has furthered diversity of programming to a far greater extent than regulation was able to accomplish.

At the same time, it appears that at the moment the supply of programming ideas and niches continues to outpace outlets (excluding the Internet). The appetite for program distribution is much like a congested highway that gets new lanes added to it. It thereby quickly attracts more traffic just because new lanes make travel easier - and thereby soon becomes as congested as ever.

Are American viewers of television better off than they were 10 or 20 or 30 years ago? It has to be a stretch to find data that confirms the negative. Is there the channel capacity that clears the market of the supply? Not yet. But the technology seems to be moving in that direction.

NOTES

1. See C. Sterling, "Television and Radio Broadcasting," in Benjamin M. Compaine, et al, Who Owns the Media? (2nd ed.) White Plains, NY, 1982, 316-317.

2. 222 FCC 2d at 311.

3. Ronald G. Hicks and James S. Featherstone, "Duplication of Newspaper Content in Contrasting Ownership Situations," Journalism Quarterly 55:549-554 (Autumn 1978).

4. WUHY-FM, Eastern Education Radio, Notice of Apparent Liability, 24 F.C.C. 2d 408, (1970).

5. Sonderling Broadcasting Corp., Notice of Apparent Liability for Forfeiture, 27 Rad. Reg. 2d (P&F) (1973).

6. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

7. Krattenmaker and Powe, p. 98. See note 181.

8. 47 C.F.R. ' 73.658(k) (1993).

9. The Kagan Media Index, No 116 (October 31, 1996).

10. Mark Ladler, "Outside Competition Tips Cable's Balance of Power," The New York Times Interactive at http://www.nytimes.com/yr/mo/day/news/financial/cable-programmers.html

11. Paul Kagan Associates, in AThe CAB: Defender of the Faith,@ Cable Television Business, April 15, 1989, pp. 22-25.

12. U.S. Commerce Department, Statistical Abstract of the United States, 1995-1996, Table 929, p. 584. From McCann-Erickson, Inc data, compiled by Advertising Age.

13. August E. Grant, AThe Promise Fulfilled? An Empirical Analysis of Program Diversity on Television,@ Journal of Media Economics, 7:(1), 51-64.

14. Ibid., 63.

15. The Kagan Media Index, 116 (October 31, 1996).

16. Ibid.

17. Heikki Hellman and Martti Soramäki, "Competition and Content in the U.S. Video Market," Journal of Media Economics, 7 (1) 29-48 at 46.

18. Newton Minow, "The Vast Wasteland" (address presented to the National Association of Broadcasters, Washington, D.C., May 1961).

19. Pat Widder, "500 Cable Channels Not Remote: TCI To Build $2 Billion Fiber-Optics System," Chicago Tribune, April 13, 1993.

20. Mark Robichaux , "TCI to Return to Its Roots As Phone Plans Fail to Pan Out," The Wall Street Journal, January 2, 1997.

21.Eben Shapiro, "Time Warner Will Pull the Plug On Its Interactive-TV Network," The Wall Street Journal, May 1, 1997.

22.Katheryn Jones, "Phone, Cable and Digital Blur in Wake of Merger," CyberTimes edition of The New York Times, April 20, 1996, at http://search.nytimes.com/web/docsroot/library/cyber/week/0420merger.html.

23. "NYNEX Concludes Manhattan Video Dial Tone Trial," Press Release NYNEX Contact: Media Relations, (212) 395-0500, July 5, 1995.

24. David Lieberman, "TCI Gives Rival 2.5M of Its Cable Customers," USA Today, Sept 4, 1997, B-1.

25. Christopher S. Sterling, Electronic Media: A Guide to Trends in Broadcasting and Newer Technologies,, 1920-1983 (New York: Praeger Publishers, 1984), p 22.

26. Ibid, p 23.

27. Ibid, p 22.

28. Ibid, p. 24.

29.Ibid, p. 23.

30. Initially these were like radio dials--continuous turning, making tuning cumbersome. Only later, when the regulations mandated a "click dial," did UHF start to have a real chance at success.

31. Cable tv report and order, 1972 . 36FCC2d 143.

32. Domestic communication satellite facilities, 1972. 35FCC2d 844.

33. James A. Walker and Robert V. Bellamy, eds., The Remote Control in the New Age of Television (Westport, CT: Praeger Publishers, 1993).

34.Ibid, p. 7.

35. Ibid.

36. Ladler.

37. Tim Jones, "TV Networks Approach a Reckoning as Viewers Switch to Cable," Chicago Tribune, June 1, 1997, C-1.. From Nielsen Media Research.

38. Aaron Barnhart, "Cable, Cable Everywhere but Not a Thing to Watch," The New York Times, December 23, 1996.

39. Eben Shapiro, "Big Firms Beg Time Warner For New Cable-TV Channels," The Wall Street Journal, April 21, 1997

40. Barnhart.

41. Bill Carter, "TCI Plan to Cut Lifetime Angers Women's Groups," The Wall Street Journal, September 14, 1996.

42. Shapiro.

43.Joan Rigdon, "Imedia Crams More Channels Onto Cable Television," The Wall Street Journal," December 4, 1996.

44. See Timescast at http://www.yahoo.timescast.com

45. Ibid.

46. Who Owns the Media?, a book last revised in 1982 that looked at this type of issue, is currently being update for 1998 publication. Data on ownership of program providers along with cable operators will be a prominent section of that work.

47.Mitchell Kapor, "Where Is the Digital Highway Really Heading?" WIRED 1.3, July/Aug 1993.