This Article contends that the decision to define an antitrust market by the broadcast's language raises concerns about its constitutionality and its effect on competition and democracy. If inaccurate, the market definition may not only distort competition, it may limit the broadcaster's freedom of speech and the public's ability to hear that programming. The First Amendment protects speakers and those who wish to hear that speaker's message.
Using First Amendment jurisprudence, Section II of this Article analyzes the standard of review for evaluating a market definition based on a broadcast's language.
This Article uses social science research on Spanish- and English language radio and television to evaluate the nexus between language and content.
Section III examines whether defining an antitrust market by the broadcast's language is a content-based distinction requiring strict scrutiny or a content-neutral distinction necessitating intermediate scrutiny.
Section IV A explores the "substitution? by broadcasters, audiences, and advertisers between program language, and advertiser alternatives if faced with a price increase by merging parties.
Section IV B offers a "supply-side" antitrust analysis that focuses on braodcaster "entry" or substitution between languages and its relationship to consolidation stategies designed to reap economies of scale.
Catherine J. K. Sandoval,
Antitrust Language Barriers: First Amendment Constraints on Defining an Antitrust Market by a Broadcast's Language, and Its Implications for Audiences, Competition, and Democracy
, 60 Fed. Comm. L. J. 407
Available at: https://digitalcommons.law.scu.edu/facpubs/110