TO BE SURE, not all media bigness is necessarily bad, and even when it is, not all of it can be regulated or outlawed. The most significant obstacle: the US Constitution. After all, the First Amendment says, "Congress shall make no law ... abridging the freedom of speech, or of the press." As my Phoenix colleague Harvey Silverglate, a noted civil-liberties lawyer, likes to say, "What part of ‘no law’ don’t you understand?"

That doesn’t mean media companies can engage in illegal predatory practices aimed at putting their competitors out of business. But it does mean that government can’t break up media conglomerates based merely on a sense that such conglomerates are somehow not in the public interest.

Besides, there is at least an argument to be made that only big media have the power and influence to cover the large institutions that dominate modern life. In January 2000, Jack Shafer wrote a piece for the online magazine Slate (owned by the extremely big Microsoft Corporation and thus part of a media alliance that includes NBC, MSNBC, General Electric, the Washington Post, and Newsweek) arguing exactly that.

"Small, independently owned papers routinely pull punches when covering local car dealers, real estate, and industry," Shafer wrote, asserting a nasty little truth known by every reporter and editor who has ever worked for a locally owned community newspaper. "Whatever its shortcomings — and they are many — only big media possesses the means to consistently hold big business and big government accountable."

And though Shafer doesn’t say it, the whole notion of government officials’ regulating the size and scope of media companies sounds suspiciously like what’s going on in Russia, where the government of President Vladimir Putin has shut down nearly all of that country’s big independent media — in the public interest, of course. To quote Liebling again: "Men of politics cannot be trusted to regulate the press, because the press deals with politics. Pravda is even duller than the Times."

Moreover, despite the dominance of just a handful of huge conglomerates, it’s hard to argue that we have fewer choices today than we did, say, a generation ago. US Representative Edward Markey, a Malden Democrat poised to take over the chairmanship of the Subcommittee on Telecommunications and the Internet if his party can recapture the House this fall, is worried about media concentration — and says he plans to order a "top-to-bottom review of the ownership rules aimed at restoring diversity and localism as cornerstones of telecommunications policy." Yet Markey is quick to add that, in some respects, consumers have never had more options than they do today.

In the 1970s, Markey recalls, there were just three major commercial television stations in Greater Boston. Now there are five stations with daily newscasts, New England Cable News, dozens of channels on cable, and the Internet. "I don’t think there’s any question that people are better off today than they were then in terms of total diversity," Markey says. And, because of the increasing ubiquity, speed, and capacity of the Net, Markey sees the situation only getting better — if, he adds by way of warning, the Internet remains as free and open as it is today.

That brings me back to cable television, which may, in turn, pose most the important media-regulation question of all.

The entire rationale for media regulation is the notion of scarcity. The reason that the government may regulate the number of radio or TV stations a company owns is that those stations make use of the airwaves — a finite, public resource. The Internet, at least theoretically, is infinite. Seen in that light, there’s no more rationale for regulating the Internet than there would be for regulating the number of newspapers Gannett can own on the basis that its papers are made of ground-up trees, which are, after all, a finite, public resource. And since just about all media — radio, TV, newspapers, what-have-you — will one day be delivered over the Internet or something like it, then government regulation will, of constitutional necessity, go the way of all dinosaurs.

Except it’s not that simple.

Last summer, a small advertising firm in Wakefield called Prime Communications filed a $20 million lawsuit against AT&T Broadband. According to accounts in both the Boston Globe and the Boston Herald, Prime accused AT&T of refusing to sell it advertising time after Prime turned down AT&T’s offer to buy an Internet-based business it had developed. Prime president Neil Bocian told the Herald, "I have to have access to all the media. Now I can’t buy cable, and I don’t have an alternative because they own all the cable systems."

AT&T, of course, denied Bocian’s charges, and it remains to be seen how this will play out. But it’s a perfect illustration of a much larger problem: cable companies typically control both programming (or some of it, anyway) and the pipeline over which that programming travels. Cable companies such as AT&T claim a First Amendment right to run their businesses as they see fit. The problem is that one aspect of their business — the pipelines — is a monopoly, usually granted by local elected officials. That gives them enormous leverage over what content will be allowed to travel through those pipelines. It’s as if state highway officials let you drive on the Mass Pike only in cars you rented from them. Neil Bocian may be right or he may be wrong, but this much is certain: he can’t take his business to a competing cable company, because there isn’t one. And with cable companies emerging as the preferred provider of high-speed Internet access, corporate control of the pipeline is becoming a threat.

As Stanford Law School professor Lawrence Lessig argues in Code and Other Laws of Cyberspace (Basic Books, 2000) and his new The Future of Ideas (Random House), the reason that anyone can be a content-provider on the Internet is that the Net was specifically designed to be wide-open, democratic, and neutral. The flip side, Lessig warns, is that it could just as easily have been designed another way — and big media, having missed out on the first wave of the Net, could take advantage of the dot-com meltdown and the rise of broadband to rewrite the rules to their advantage this time around. In an interview with Newsweek’s Steven Levy this week, Lessig said that "every major change that’s going on right now around the Internet is a change to undermine that neutrality, so those who control the legal system or control the physical network are able to veto innovations they don’t like. So you get the right to innovate depending on whether AOL or AT&T or the music industry likes your innovation."

Without government regulation, in other words, there’s nothing to stop the cable companies from excluding Internet content just as surely as AT&T Broadband may be excluding Prime Communications. This private Internet could be engineered in such a way that only content approved by the cable company can be accessed. Or only content for which the cable company is receiving money can be easily found. Or certain types of content that the cable company doesn’t want to compete with, such as streaming video from independent media, can’t be transmitted at all.

It’s not that the old, wide-open Internet will go away, says Jeff Chester, executive director of the Washington-based Center for Digital Democracy. It’s that the high-speed Internet is going to become Fun City, and few people will bother with the traditional Net, where nonprofit and independent voices will cry out to be heard. It’s at least theoretically possible that the full range of content will remain available only to those who keep a slow dial-up connection — something most people just aren’t going to do.

"While the Internet posed a truly competitive threat in the early 1990s of a much more open and democratic communications system, that promise is now truly threatened," Chester says. "It is not visible, it is not apparent, it is an iceberg sitting in the water. It’s not like somebody’s going to take away your Internet, but the fact is that the Internet is going to change in subtle ways. Clearly the network owners are going to have the ability to banish certain Web sites if they wish."

Chester fears that when Big Media perfect the high-speed, privatized Internet, with full video, music delivery, personalization, and other features, "people are going to love this stuff. That’s the other problem." Independent voices, he says, "will just fade into the digital twilight."

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Issue Date: January 10 - 17, 2002