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Hastings Communications and Entertainment Law Journal

Abstract

In response to mounting economic challenges in the media industry, some broadcasters have started entering into agreements whereby one station agrees to sell advertising, produce programming, or take over certain other functions of another station in the same market. Though such arrangements, often called local marketing or time brokerage agreements, are not particularly new in the broadcasting field, they have been used with increasing frequency in recent years.

This article examines the form and function of cooperative agreements among broadcasters and explores the reasons why such agreements are attractive business propositions for those who enter into them. It then describes the regulatory context in which these agreements exist, from both a communications and an antitrust law perspective. The article closes with a look back at the antitrust enforcement action brought against joint operating agreements and the subsequent passage of the Newspaper Preservation Act, and sets forth some suggestions for future regulatory treatment of cooperative agreements.

This article concludes that while cooperative agreements likely offer many pro-competitive benefits, both the FCC and antitrust enforcers should take a more active, cooperative role in reviewing and monitoring agreements between competing broadcasters and consider the potentially adverse effects of such arrangements across each potentially affected market, including the market for audience share, the market for advertisers, the market for carriage, and the marketplace of ideas.

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