For decades, communications law in the United States has wrestled with a deceptively simple question: How much media power should one company be allowed to control?
That question is back in a very big way.
Paramount Skydance is moving toward completing its acquisition of Warner Bros. Discovery, a transaction valued at roughly $110 billion. If completed, an already enormous media company will gain Warner Bros., HBO, CNN and other major entertainment and media properties while Paramount already controls assets including CBS and CBS News.
California and 11 other states sued to stop the transaction. Now they have settled, removing one of the largest remaining obstacles to the merger.
And I keep coming back to one question:
Why are we comfortable allowing media ownership to become even more concentrated?
This isnât about whether you like CNN
The political conversation surrounding this merger has been predictably shallow.
Some commentators are celebrating because CNN will have a new owner. Others are worried about what the change will mean politically.
Thatâs not the question that interests me.
I have studied communications and media law, and ownership concentration has been an issue in this field for generations. The concern has never simply been whether we approve of the politics of whoever owns a particular newspaper, television station or network.
The larger concern is concentration of power.
How many competitors remain?
How much control over the production and distribution of information and entertainment can accumulate under one corporate roof?
What happens to consumers, journalists, writers, actors, producers and other workers when fewer companies are competing for their business or labor?
Those arenât partisan questions. Theyâre antitrust and communications-policy questions.
The states originally thought this merger was a problem
The lawsuit wasnât filed because somebody didnât like Paramountâs politics.
California and the other states alleged that combining Paramount and Warner Bros. Discovery would reduce competition, decrease output and raise prices, harming workers as well as consumers.
Those concerns fit squarely within traditional antitrust analysis.
The Justice Department and Federal Trade Commissionâs merger guidelines specifically recognize that increased concentration in an already concentrated market can create a substantial risk of reduced competition. They also instruct regulators to consider an industryâs broader trend toward consolidation and the potential effects of mergers on workers, creators, suppliers and other providersânot merely what consumers pay at the checkout counter.
Thatâs particularly relevant to modern media.
These corporations arenât simply television networks anymore.
They can simultaneously own movie studios, streaming services, cable networks, news organizations, intellectual property, production facilities and distribution relationships.
The old categories have begun collapsing into one another.
So what changed?
The states didnât suddenly determine that media concentration wasnât a concern.
They settled the lawsuit.
Under the agreement announced September 21, Paramount made a series of enforceable commitments. Among other provisions, it agreed to minimum theatrical-film production levels, at least $1.5 billion in additional domestic production spending over five years, protections involving cable-carriage negotiations, labor-related commitments and an editorial-independence structure covering CNN and CBS.
Those are meaningful concessions.
But notice whatâs largely absent:
Structural separation.
Paramount isnât being required to sell CNN.
It isnât being required to sell CBS.
The merger itself survives.
Thatâs an important distinction in antitrust law. A structural remedy changes the ownership structure itselfârequiring divestiture, for example. A behavioral remedy allows the combined company to remain intact while imposing rules governing how it behaves.
Here, regulators largely accepted the latter.
And some antitrust experts have criticized exactly that decision, arguing that the settlement doesnât adequately resolve the concentration concerns that prompted the lawsuit in the first place. Even California Attorney General Rob Bonta acknowledged shortcomings in what the agreement accomplishes for competition while defending the protections his office obtained.
CNN and CBS make this particularly interesting
Thereâs another piece of this merger that should concern anyone interested in journalism, regardless of political affiliation.
CNN and CBS News will exist under the same corporate ownership.
The settlement attempts to protect their journalistic independence through a new News Editorial Independence Board.
On paper, that sounds reassuring.
But Reuters reported that media-law experts are already questioning how independent that board will actually be. Critics point out that it lacks significant investigative and decision-making authority, its findings wonât necessarily become public, and ultimate corporate authority remains with the companyâs ownership.
Thatâs worth thinking about.
An editorial-independence board can establish standards.
But ownership still matters.
Owners choose executives. Executives allocate budgets. Corporations decide which properties receive investment, which are downsized, which are sold and which strategies they pursue.
Editorial independence isnât merely about whether an owner personally calls a newsroom and dictates tonightâs headline.
Corporate influence can be considerably more subtle than that.
The bigger problem is bigger than CNN
Thatâs why I donât find the partisan celebration surrounding this merger particularly useful.
If your response is:
âGood! I hate CNN!â
youâre missing the larger issue.
Media-ownership rules and antitrust laws shouldnât depend on whether todayâs owner shares your politics.
Because ownership changes.
Administrations change.
Political coalitions change.
The rules remain.
The appropriate question isnât whether we trust this particular billionaire, this particular corporation, or this particular news organization.
Itâs whether weâre comfortable creating a media ecosystem in which fewer and fewer corporations control more and more of what Americans watch, read and hear.
The federal governmentâs own merger guidelines recognize that a continuing trend toward consolidation can itself heighten antitrust concerns.
That principle makes sense.
Competition isnât important only when we dislike the person acquiring the company.
Technology changed. The underlying concern didnât.
The communications landscape today would have been almost unrecognizable when many traditional media-ownership rules were written.
A newspaper was a newspaper.
A television station was a television station.
A movie studio made movies.
Cable television was eventually its own universe.
Today one corporation can participate in virtually every part of that ecosystem simultaneouslyâand streaming has erased many of the old boundaries entirely.
Our regulatory framework has struggled to keep pace.
But the underlying democratic and economic concern hasnât disappeared:
How much control over information and culture should accumulate in a small number of private hands?
That question doesnât require believing corporations are sinister.
It doesnât require believing that every merger creates propaganda.
And it certainly doesnât require liking or defending CNN.
It simply requires recognizing that competition and diversity of ownership have value of their own.
We should be able to have this conversation without picking a political team
Maybe the ParamountâWarner Bros. combination ultimately delivers everything its supporters promise.
Maybe the settlement successfully protects competition, workers, consumers and editorial independence.
Those are outcomes that can be measured over time.
But allowing the merger to proceed doesnât make the original concentration concerns disappear. The states themselves went to court alleging serious competitive harms before ultimately deciding that enforceable concessions were preferable to continuing the litigation.
And thatâs the conversation I think weâre missing.
Weâre spending far too much time asking:
âWho gets CNN?â
Iâd rather ask:
âHow many companies do we want controlling American media?â
Because if our opinion about media consolidation changes depending on whether we like the person buying the company, weâre no longer talking about a principle.
Weâre talking about whose turn it is to hold the microphone.
