Expression Over Radio Waves Is Not Exempt from the First Amendment

In his first week on the job, newly minted FCC Chairman Brendan Carr reinstated previously dismissed complaints against broadcasters for their coverage of the 2024 presidential election. This assertive use of the FCC’s authority over spectrum warrants attention.

Chairman Carr’s actions are permitted within the current state of the law. Unlike content-based regulations of press and speech over other media—which are analyzed under strict scrutiny and which almost always fail to meet this high First-Amendment bar—such regulations of press and speech over broadcast are analyzed more deferentially. This is because 20th-century court decisions determined that the First Amendment has less force in broadcast based on spectrum scarcity. On reexamination, however, those cases, and therefore the FCC’s authority to regulate the content transmitted over radio waves, are based on fundamental fallacies.

The Problem of Scarcity

The logical basis for any FCC regulation of spectrum is scarcity: there isn’t enough spectrum for everyone to use all they want all the time, so the government maintains some role in its management. This you-can’t-always-get-what-you-want concept of scarcity is a term of art from economics. It’s an attribute of a resource; even a very abundant resource is scarce if its supply is limited. This definition differs from the colloquial use of “scarce” to mean “in short supply.” But the economists’ definition is the one used by courts developing spectrum law. Take the 1943 case of NBC v. United States, in which the Supreme Court described spectrum this way: “its facilities are limited; they are not available to all who may wish to use them; the radio spectrum simply is not large enough to accommodate everybody.” In other words, because of scarcity, we need some way of dealing with interference, the phenomenon in which competing radio signals prevent successful wireless communication.

Current Law Assumes Scarcity Necessitates Content-Based Regulation

In the 20th century, the FCC’s and courts’ response to the problem of scarcity and resulting interference was to determine that only direct command-and-control regulation was capable of managing it. This assumption underlies all assertions of FCC authority to regulate the content transmitted over spectrum. As the Supreme Court put it in Red Lion v. FCC, “Without government control, the medium would be of little use because of the cacaphony [sic] of competing voices, none of which could be clearly and predictably heard.”

Once the Court decided the FCC could and indeed must control spectrum use, the next question was what standard it should use to do that. The Court in NBC relied on the scarcity rationale to allow content-based decisions, that is, to allow the FCC to decide who can use the spectrum based on what they say over it. Or as Justice Frankfurter wrote for the majority, the FCC has the power of “determining the composition of . . . traffic” over the airwaves. At the same time, the Court rejected the idea that the FCC must act merely as “a kind of traffic officer, policing the wave lengths to prevent stations from interfering with each other.”

This holding was strange from the outset. Recall that the problem to be solved by regulation—given the scarcity justification—is interference. The content or viewpoint of the information transmitted over the spectrum has no impact on interference. Republican broadcasts don’t cause any more or less interference than Democratic ones. Neither do biased interviews or debate fact checks. But the Court had an answer to this objection:

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?

In other words, since there are many configurations of spectrum rights that do not result in harmful interference, Justice Frankfurter asked rhetorically, how is the Commission to carry out its coordination function except by reference to the content of the users’ transmissions?

In sum, the scarcity rationale for content regulation works like this:

1. Spectrum is scarce.
2. Therefore, without a coordination mechanism, interference will destroy spectrum’s usefulness.
3. The only viable coordination mechanism is content-based government regulation.

The Basis of the Scarcity Rationale Has Been Disproven

The NBC Court rested its blessing of content-based spectrum regulation on Justice Frankfurter’s rhetorical question in 1943. Economist Ronald Coase answered it in 1959:

Mr. Justice Frankfurter seems to believe that federal regulation is needed because radio frequencies are limited in number and people want to use more of them than are available. But it is a commonplace of economics that almost all resources used in the economic system (and not simply radio and television frequencies) are limited in amount and scarce, in that people would like to use more than exists. Land, labor, and capital are all scarce, but this, of itself, does not call for government regulation. It is true that some mechanism has to be employed to decide who, out of the many claimants, should be allowed to use the scarce resource. But the way this is usually done in the American economic system is to employ the price mechanism, and this allocates resources to users without the need for government regulation.

To put it another way, spectrum’s scarcity doesn’t make it unique. It makes it a normal economic good. And there’s a coordination method at hand perfect for allocating scarce resources, namely market prices. Coase went on to work out the theoretical basis for a market for spectrum usage rights which would later form part of the basis for his winning the Nobel Prize in economics. This economic argument upends the key premise of the content-regulation argument: that there is no content-neutral way to choose between competing claimants of spectrum. Thus, the Court was wrong to assume that content-based regulation is necessary and thus to find that it is constitutionally permissible. But Congress and the FCC, no less than the courts, remained unmoved by this argument for decades.

Finally, in 1994, the FCC started to auction spectrum licenses. This practice was hugely successful and carried on until Congress let the FCC’s auction authority lapse in March of 2023. It has contributed massively to the boom in wireless connectivity we all enjoy today. Whenever you connect to a cellular network, you’re experiencing the market coordination mechanism in action.

Other non-content-based coordination systems have developed as well. When you use Wi-Fi, you’re using spectrum that is not subject to the same content-based rules as TV and radio broadcasts even though it’s no less susceptible to interference. Yet no one would countenance content-based control of all wireless internet traffic, even though the scarcity rationale would apply identically to those types of transmissions.

The case against the necessity of content regulation is even stronger if we consider all channels for public information, not just broadcast. Pre-internet case law can be forgiven for its mistakes at a time when households had only a handful of channels for information. But today, we have millions of options for 24/7 information streams. It is irrational to consider broadcast media as especially in need of content-based regulation when it makes up only a sliver of the information ecosystem.

The scarcity rationale supporting precedents that exempt FCC regulation of broadcast from normal strict scrutiny have thus been disproved in both theory and practice. Indeed, Justice Clarence Thomas has identified both their “doctrinal incoherence” and the fact that “technological advances have eviscerated the factual assumptions underlying” them. Do his colleagues agree? Faced with content-based restrictions on broadcasters or other spectrum users, courts should apply the same rules they would for purveyors of speech and press over other scarce media. Paper and ink are scarce resources, but the Court has not permitted content-based restrictions on newspaper publishers or treated newspapers as mere trustees of the “public’s resources.” Land is scarce, but the fact that the government has granted or auctioned deeds doesn’t permit it to regulate the content of what landowners say.

Spectrum is not so special a medium that it should be carved out of the First Amendment. To the extent that any FCC action or any part of the Communications Act relies on the inverse assumption, it is unconstitutional.