Technical innovation has bestowed us with an abundance of channels for audiovisual media providers. More and more platforms for distributing content have become available. Cable and satellite systems have significantly increased their capacity in recent years. The quality of IPTV (Television over Internet) and the availability of audiovisual content on the internet are steadily improving. As a consequence, the traditional reasons for intervention in broadcast, cable system and satellite system markets – e.g. scarcity, diversity, and localism – have to be reconsidered. It is doubtful whether these reasons still justify governments' large scale intervention in media markets. Further, media convergence has blurred traditional distinctions between media providers. Print media offer on-demand videos and other audiovisual content on their websites; broadcasters publish newspaper-like content on their websites. Despite these developments, regulatory instruments in broadcast regulation have hardly changed. Regulators still apply license regimes, ownership limits, behavioral restraints, must carry, channel position privileges, as well as subsidized public service broadcasting in order to enhance diversity of opinions and to promote localism. These instruments are highly disputed among scholars, and have always been on the edge of infringements of First Amendment rights of broadcasters as well as platform providers. As this article shows, the old interventionist tools may not be expected to work in convergent media markets, even if they were consistent with First Amendment requirements. In contrast, we may expect convergence to aggravate the distorting effects that broadcast regulation has on content providers (speakers) in audiovisual media markets. Some instruments, such as privileged carriage of local and public service broadcasters, amount to outright discrimination between different categories of speakers. The jurisdiction of the Federal Communications Commission (FCC) is limited to broadcast, cable and satellite. It lacks the power to regulate the audiovisual media industry as a whole. Its regulatory framework largely aims to protect traditional broadcasters (linear programmers, TV as we know it). With alternative platforms for content like the internet becoming more attractive and powerful, the significance and effect of the FCC's regulations are bound to diminish. Although a weakened FCC regulation will still distort the media markets, it may not prevent the emergence of a new market structure in audiovisual media. On December 11, 2007, the European Union adopted an overhauled regulatory framework on audiovisual media, which entered into force on December 19, 2007. The new framework sharply contrasts the FCC's approach. Not only does the European Union regulate all audiovisual media providers, regardless of whether they use airwaves or the internet to convey their content, but it also regulates on-demand offers of audiovisual content. The regulation of on-demand offers opens the door for member states to regulate services like YouTube or Tudou (YouTube's larger Shanghai clone). It is the European Union's intention to cover only mass media which impacts on a significant proportion of the public. However, who could deny the huge impact on the public made by presidential candidate Barack Obama's speech on race, which was published on YouTube? With the internet becoming a stronger platform for TV-like services, local regulators in Europe might even be tempted to impose must-carry obligations for local channels on worldwide operating TV gateways on the internet. Today's broadcast regulation has become a grotesque impediment to new forms of audiovisual media and to new ways of producing and conveying content. It needs to be reconsidered and adapted to develop-ments in the market. The FCC, as well as the Supreme Court, are still locked into the scarcity rationale for regulating broadcasting; they seem determined to adhere to their traditional regulatory scheme. The European Union's new directive addresses the technical consequences of convergence; however, it fails to consider that convergence might fundamentally change the way TV-like services are provided. Although only a few months old, the Directive already appears outdated. This article welcomes the new Directive's approach which abandons platform-specific regulation of media. The scale of regulatory intervention, however, needs be matched with the importance of the public interests involved. Viewed in this light, the state's responsibility to provide, e.g., public interest programming is limited; intrusive regulation should be applied with restraint
