Contents

Introduction and Summary 1

The Scarcity-Rationale Cases are Wrong and Ripe to be Overturned Despite Stare Decisis 2

The Federal Equal Opportunities Requirement is Unconstitutional 5

The Commission Should Follow the Constitution of Its Own Volition. 7

Spectrum is Not a “Public Resource” in a Way That Removes It From First Amendment Protection. 7

Conclusion. 8

Endnotes 8

Introduction and Summary

The Information Technology and Innovation Foundation appreciates the opportunity to comment on ABC’s petition regarding the equal opportunities requirement.[1] The Public Notice is right to ask whether “the federal equal opportunities statute passe[s] relevant constitutional scrutiny.”[2] It does not. The equal opportunities requirement and the Public Notice depend on a mistaken paradigm about the nature of spectrum scarcity and its implications for First Amendment scrutiny. The equal-opportunities statute is a content-based regulation of broadcast speech, and it should, therefore, be subject to strict scrutiny under the First Amendment. Because it cannot pass strict scrutiny, it is unconstitutional. Therefore, any enforcement action brought against broadcast licensees on the basis of this unconstitutional statute are legally vulnerable, regardless of the bona fide news exception.

The Scarcity-Rationale Cases are Wrong and Ripe to be Overturned Despite Stare Decisis

The constitutional basis for the equal opportunities requirement is highly suspect. Twentieth-century Supreme Court case law, starting with NBC v. United States, authorized FCC regulation of broadcast speech on the basis of spectrum scarcity.[3] That holding formed the basis for subsequent case law, including Red Lion v. FCC, which treated speech transmitted by radio waves as outside of normal First Amendment protections.[4] The FCC has relied on these two cases for its current efforts to regulate broadcast content.[5]

But while spectrum usage rights are indeed limited in supply, that fact does not authorize departure from First Amendment protections. The deficiencies of the scarcity-rationale cases are now so obvious that the Commission should not expect them to survive on the merits or be saved by stare decisis if content-based regulations, including the equal opportunities requirement, face review by the Supreme Court.

Under stare decisis principles, the Supreme Court considers multiple factors to determine whether to overrule its precedent.[6] All those factors weigh in favor of overruling the scarcity-rationale cases.

The Scarcity-Rationale Cases are Egregiously Wrong

The basis of all spectrum regulation is interference management. Interference is the result of spectrum scarcity, the fact that not everyone can use all the spectrum they want without falling prey to the technical phenomenon of conflicting signals.

In the original scarcity-rationale case, NBC v. United States, the Court found that content regulation was a necessary component of the Commission’s authority to manage interference because, it held, when the Commission considers mutually exclusive applications to use spectrum, many applicants will be equal on content neutral factors, so a content-based regulatory decision must be the tiebreaker. The Court reasoned as follows:

The Commission's licensing function cannot be discharged, therefore, merely by finding that there are no technological objections to the granting of a license. If the criterion of “public interest” were limited to such matters, how could the Commission choose between two applicants for the same facilities, each of whom is financially and technically qualified to operate a station?[7]

It therefore held, by rhetorical question, that there exists no content-neutral way for the Commission to determine to whom to grant a license, so content-based regulation must be permitted.

Red Lion, agreed and rested its holding on the claim that “Without government control, the medium would be of little use because of the cacaphony [sic] of competing voices.”[8] It went on to define the sort of “control” it thought necessary to include content-based regulation.[9]

Both holdings are wrong, and their incorrectness has been empirically verified. Auctions are a content-neutral tiebreaking method that assign spectrum licenses between mutually exclusive users who are each otherwise qualified. The modern economy now largely runs on communications networks that operate without harmful interference or content-based regulation.[10] Content-neutral technical rules and protocols have also enabled non-cacophony in “unlicensed” spectrum.[11] The FCC has also allocated licenses via a lottery which resolved mutually exclusive uses of spectrum, and thus harmful interference, without reference to the content transmitted.[12] So, the syllogism of the scarcity-rationale for content-based regulation is unsound. The Court claimed there was no method of content-neutral interference management, yet such methods do exist.[13]

Beyond the logical error of the scarcity rationale syllogism, the Court misunderstood and thus misconstrued the legal significance of spectrum scarcity. The scarcity-rationale cases treat scarcity as unique to spectrum, such that it would make sense to fashion a unique legal framework for it. But this analysis is wrong. Spectrum is no more or less scarce than any other medium.[14] Scarcity, in the economic sense, identifies a resource as being in limited supply, not just objectively low in supply. But all economic goods, including communications media, are scarce. Printing presses, paper, and ink are all limited in supply, yet this fact does not justify removing communications via newspaper from normal First Amendment protection.[15]

If one uses the more colloquial sense of scarcity as small in quantity, the scarcity-rationale cases are even more clearly wrong. There are far more TV and radio stations today than there were at the time of NBC and Red Lion.[16] Websites, cable channels, podcasts, and other media provide millions of channels by which Americans can receive news and hear from political candidates. The world in which Americans depended on only a handful of broadcasts for all news and information no longer exists.

Moreover, the relevant level of scarcity for First Amendment purposes depends on the level of scarcity in 1791. At that time, a typical person had access to only one or two newspapers (and no broadcast channels), yet Congress did not on that basis seek to ensure all candidates for public office had the opportunity to be represented in them.[17] It is nonsensical to think that a less scarce type of media, 21st century broadcasts, should be considered scarcer than 18th century newspapers as a theoretical or practical matter.

The FCC itself acknowledged the scarcity rationale is defunct when it repealed the fairness doctrine in 1987.[18] There, the Commission answered the Supreme Court’s call to “signal” when factual realities undermine the scarcity rationale writing “the scarcity rationale developed in the Red Lion decision and successive cases no longer justifies a different standard of First Amendment review for the electronic press.”[19]

Since the scarcity rationale cases are objectively wrong on multiple fronts, this factor weighs in favor of overruling them.

The Scarcity-Rationale Cases are Poorly Reasoned

NBC’s First Amendment analysis amounts to a restatement of the scarcity rationale. There, the Court rejected any level of scrutiny on content-based regulations of speech over radio waves because “radio inherently is not available to all.” The Court reasoned that if there were a First Amendment problem with content-based regulation of speech over radio, 

…it would follow that every person whose application for a license to operate a station is denied by the Commission is thereby denied his constitutional right of free speech. …Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation.[20]

The quality of this reasoning is poor. As noted above, scarcity is not a unique quality of spectrum-usage rights. To speak in print, one must procure paper and ink. These are available only to those who produce or pay for them. They are “not inherently available to all.” To speak via a website, one must secure a domain name, which are traded in the market and are “not inherently available to all.”

Red Lion makes the same mistake and relies on NBC’s reasoning throughout:

Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same "right" to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves.[21]

This reasoning misses the point. This issue is not whether everyone must win in their quest to use a scarce resource but on what basis the government may ration access to that resource. The fact that space around the elementary school was limited did not permit the Town of Gilbert to make content-based decisions about what signs could be posted there.[22] Yet for spectrum, the Court simply skips over any level of First Amendment scrutiny because its reasoning is confused about the nature of spectrum.

It is the Court’s logic that is unique, not spectrum. It carves spectrum out of the First Amendment only by connecting false factual claims with faulty logical leaps. Justice Thomas was right when he identified the “doctrinal incoherence” of the scarcity-rationale cases.[23] This factor weighs in favor of overruling them.

The Scarcity-Rationale Cases are Unworkable

Commission practice has demonstrated the unworkability of the scarcity-rationale cases. The Commission has not often used content-based rules in recent decades and has repealed the very policy at issue in Red Lion.[24]

Moreover, the unworkability of the scarcity rationale is evidenced by the selective application of supposed authorization of content-based regulation. The Communications Act provides public interest standards for the Commission to follow in the granting of all spectrum licenses, and the scarcity rationale cases hold that the Commission’s duty is to control the content of traffic over the airwaves. Yet the Commission applies many of its content-based rules only to broadcast licenses, not to other licenses, such as those for mobile Internet transmissions. Because it would be so obviously inapposite as a matter of law and policy for the Commission to regulate Internet content on the basis of an FCC license to transmit it, the Commission has implicitly recognized the unworkability of the scarcity-rationale cases’ logic; it cannot be followed to its logical end without absurdity.

A more workable regime would recognize the Commission’s statutory scope of jurisdiction over all spectrum subject to its licenses while also recognizing its limitation to technical rules for interference management, not the control of content that the scarcity-rationale cases envision.

To Overrule the Scarcity-Rationale Cases Would Not Disrupt Other Areas of Law

Far from disrupting other areas of law, the scarcity-rationale cases are themselves an aberration, and overruling them would remove disruption from First Amendment law. Strict scrutiny of content-based regulation is the general rule. Overruling the scarcity-rationale cases would heal the meritless exception for broadcast regulation, and normal First Amendment jurisprudence could function for wireless speech just as it does for speech via other media.[25]

The Scarcity-Rationale Cases Have Not Engendered Concrete Reliance Interests

Overruling the scarcity-rationale cases would not upend concrete reliance interests. There can be little reliance on scarcity-based regulations of broadcast content that have long ago fallen into disuse. Indeed, the current FCC Chairman has lamented this fact and cast his policy agenda as reinvigorating this defunct area of law.[26] This effort to return to content-based regulation has been met with surprise precisely because the public and regulated entities were not relying on the policy framework of the scarcity-rationale cases.[27] Another recent FCC Chairman aptly summarized the Commission’s own impression of the state of law in 2017 as foreclosing content-based regulation of particular broadcasts.[28]

Since all the stare decisis factors weigh against the scarcity rationale cases, the Supreme Court should overrule them, and the Commission should not expect them to rescue an enforcement action under Section 315(a).

The Federal Equal Opportunities Requirement is Unconstitutional

In the absence of the scarcity-rationale cases’ curtailment of First Amendment protections for broadcast speech, the Commission should, and courts will, analyze ABC’s petition, including its constitutional objections, under normal First Amendment scrutiny. That is, content-based speech regulations must pass strict scrutiny.[29]

The Equal Opportunities Statute is Content Based

“Speech regulation is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”[30] A regulation is content based when it “singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter.”[31]

Here, for the FCC or court to know whether a licensee has violated Section 315(a), it must consider whether the broadcast content contained a candidate for office. If a licensee transmits content of a candidate for office, it incurs an obligation and potential liability under the requirement. If a broadcaster transmits a different subject matter, it incurs no additional obligations under Section 315(a). Since, therefore, the subject matter of the broadcast is the trigger for the application of the statute, the statute is content based.

The Bona Fide News Exception Makes the Equal Opportunities Statute Content Based

Alternatively, even if the core rule of Section 315(a) were content neutral, the bona fide news exception contained in the statute makes the whole statute content based.[32] News is undoubtedly a type or subject matter of content; speech that contains news is treated differently than speech containing other content. In this way, Section 315 is like the statute in Barr v. American Association of Political Consultants Inc., in which the Court held that content neutral ban on robocalls to cell phones was rendered content based because of an exception for calls to collect government debt.[33] Just as the robocall restriction with the government-debt exception was content-based, the equal-opportunities statute with the bona fide news exception is content-based.

Section 315(a) Fails Strict Scrutiny

Since it is a content-based regulation of speech, Section 315(a) is unconstitutional unless it serves a compelling government interest in the least restrictive way possible.[34]

The equal opportunities rule does not serve a compelling government interest

The Public Notice identifies the purported government interest for Section 315(a) and corresponding FCC regulations as “ensur[ing] that no legally qualified candidate for office is unfairly given less access to the public airwaves than their opponent.”[35] But to ensure “fair” access to a medium of speech is not a legitimate government interest, much less a compelling one. On the contrary, “the fundamental rule of protection under the First Amendment” is “that a speaker has the autonomy to choose the content of his own message.”[36] For newspapers, Tornillo already lays out the fact that fairness is not a government interest to be balanced against First Amendment guarantee of editorial discretion:

The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment.[37]

The choice of which candidates to interview or present on a broadcast is no less within the editorial discretion of a broadcaster than was a newspaper’s choice not to publish a candidate’s reply in Tornillo.

The only difference between the newspaper rule of Tornillo and the broadcast rule of NBC and Red Lion is the medium that transmits the content. But, as noted previously, transmissions via radio waves are no differently situated than those via paper and ink, so the same rule should govern FCC regulations. A rule to ensure a broadcaster conforms to the government’s view of fairness when selecting what content to broadcast is nothing more than an assertion of authority to override editorial discretion, which is itself a First Amendment injury.[38] The government’s compelling interest cannot be the production of an unconstitutional outcome.

The government may have a compelling interest in managing radio interference. But it was the mistake of the scarcity-rationale cases to conflate interference management with content management. The content of a broadcast has no impact on the interference environment. Broadcasts of one candidate cause no more or less interference than those of competing candidates. Thus, if the government has a compelling interest in interference management, content-based regulations, such as Section 315(a), do not advance it.

The rule is not narrowly tailored

Even if fair access to spectrum were a legitimate and compelling government interest, Section 315(a) is not narrowly tailored to achieve it except in the perverse way of disincentivizing all candidate broadcasts. Many elections include dozens of qualified candidates. Giving equal access to all would be logistically and economically impractical for many broadcasters. The zealous enforcement of Section 315(a) would therefore incentivize broadcasters never to give any candidate airtime lest it incur an obligation to do so for all the potentially dozens of qualified candidates.[39]

Neither are content-based regulations of speech, such as Section 315(a), the least restrictive means of managing interference. Narrow tailoring ordinarily fails where the government has not shown that content-neutral alternatives would be inadequate to achieve its compelling interest.[40] This case presents the rarer posture in which the government adopted content-neutral alternatives, those alternatives succeeded in managing interference, and the government nonetheless insists on retaining a content-based restriction. Each instance of content-neutral spectrum allocation (e.g. auctions, unlicensed use, lotteries) is a counterexample to the necessity, and thus narrow tailoring, of content-based allocations. The government cannot show its abridgement of the freedom of speech is necessary to solve a problem it has already solved without such abridgement.

The Commission Should Follow the Constitution of Its Own Volition

While the scarcity-rationale cases (incorrectly) permit content-based regulation of broadcasts, they do not require the FCC to take any particular action. The Commission need not maintain every policy that survives judicial review; indeed, it has long ago repealed the policy upheld in Red Lion itself.[41] The Commission should follow the Constitution of its own volition, not violate the First Amendment until a court tells it to stop. This fact is most cleanly applicable to the Commission’s own content-based regulations, which it should repeal on its own authority. Even with regard to Section 315(a), however, the Commission should repudiate the scarcity-rationale, construe the statute as narrowly as possible, enforce that minimalist version, and decline to defend its constitutionality on the merits.[42]

Spectrum is Not a “Public Resource” in a Way That Removes It From First Amendment Protection

Overall, the Public Notice lacks clarity in its allegation that spectrum is a “public resource.” While it is true that the FCC must act in the public interest in its management of spectrum, the term “public resource” is not a ‘get out of First Amendment free’ card. Radio waves are indeed different from other media, but this fact makes no difference legally.

It is no better for the Commission to refashion its technical licensing function as government-granted benefits which may come with conditions that would be unconstitutional when applied more generally. The Public Notice characterizes the equal opportunities regulations as “operat[ing] to prevent broadcast television stations, which have been given access to a valuable public resource (namely, spectrum), from unfairly putting their thumbs on the scale for one political candidate or set of candidates over another.” That is, ordinary people may put their thumb on the scale for political candidates, but, the Public Notice claims, the government benefit of an FCC license is conditioned on giving up that right. This claim is analogous to the government’s claim about trademark registration in Matal v. Tam. There, the government argued that while ordinary Americans may use disparaging remarks in commerce, the government could condition the grant of a trademark registration on giving up that right.[43] The Supreme Court disagreed, and declined to condone content-based regulation of speech based on the fact that it uses a government-granted benefit or program.[44] Likewise, the FCC should not construe its licensing function as a quid pro quo in which a license comes at the expense of the licensee’s First Amendment rights.

Conclusion

The Commission is at its best when it rejects content-based spectrum regulation and instead recognizes the public interest in spectrum productivity, regardless of content. Rather than building on the crumbled foundation of the scarcity-rationale cases, the Commission should unwind all content-based regulations within its control, send the signal the Supreme Court invited that the underpinnings of the scarcity rationale are defunct, and decline to defend unconstitutional enforcement actions.[45]

Thank you for your consideration.

Endnotes