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Cass R. Sunstein, Private Broadcasters and the Public Interest: Notes Toward A 'Third Way’ (Univ. Chi. L. Sch., John M. Olin Ctr. Discussion Paper No. 65, Jan. 1999).

Abstract: The communications revolution has thrown into question the value of public interest obligations for television broadcasters. But the distinctive nature of this unusual market--with "winner- take-all" features, with viewers as a commodity, with pervasive externalities from private choices, and with market effects on preferences as well as the other way around--justifies a continuing role for government regulation in the public interest. At the same time, regulation best takes the form, not of anachronistic command-and-control regulation, but of (1) disclosure requirements, (2) economic incentives ("pay or play"), and (3) voluntary self-regulation through a privately administered code. Some discussion is devoted to free speech and antitrust issues, and to the different possible shapes of liability and property rules in this context, treating certain programming as a public "good" akin to pollution as a public bad.