The FCC recently published a public notice that “reminds broadcasters of their public interest obligations.” Rather than addressing a specific complaint involving a particular company or issue, the notice offers a broad restatement of how the FCC understands its authority to regulate broadcasters in the public interest.
The history, technical realities, statutes, and precedents cited in the notice show how the “Commission views licensees as public trustees of the radio spectrum”—not as speakers with full-fledged expressive rights. Going further, the Commission invokes cases describing some FCC regulation of broadcasters as activity that “enhance[s] rather than abridge[s] the freedoms of speech and press protected by the First Amendment.”
Unfortunately, the FCC is correct that Congress and the courts have allowed the agency to wield power that can trample broadcasters’ expressive rights. Fortunately, the notice also reveals how weak the case for that power is, both technically and constitutionally.
Broadcast Technology in the Modern Marketplace
The notice begins by identifying broadcast spectrum as a “finite public resource bound by the limits of physics.” Radio spectrum spans a range of frequencies, and different portions of that spectrum are better suited to different applications. A very limited list of examples includes:
- Extremely low, super low, ultra-low, and very low frequencies are often used for submarine and maritime communications and for communicating with mines beneath the earth.
- Low and medium frequencies are used for AM radio and maritime communications.
- High and very high frequencies are used for aviation and military communications, FM radio, and television broadcasts.
- Ultra-high, super high, and extremely high frequencies can be used for broadcast television, microwave links, Bluetooth, Wi-Fi, GPS, and satellite communications.
This short list leaves out a host of medical, scientific, and everyday technologies that rely on various portions of spectrum. For many of those uses to work, however, users must have exclusive or carefully coordinated use of a band within a geographic area. For a humorous example, older automatic garage-door openers could operate on the same frequency as a neighbor’s remote, accidentally opening the wrong garage door. But there are many less innocuous forms of interference, from garbled radio communications to corrupted medical or navigation data. This is a classic tragedy-of-the-commons problem where a finite resource is degraded when treated as a public resource rather than as private property.
But instead of embracing property rights to determine who may use this finite resource, Congress first created federal broadcast licensing through the Federal Radio Act of 1927 and then, through the Communications Act of 1934, created the FCC and empowered it to choose who gets an exclusive broadcast license for a given band of spectrum. Congress also required the agency to act in a way that serves the “public interest, convenience, and necessity.”
The FCC proudly cites cases stretching back decades and culminating in Red Lion Broadcasting Co. v. FCC, where the Supreme Court in 1969 affirmed that FCC regulation was justified by spectrum scarcity. While the FCC and the Court were correct that spectrum is scarce, their analysis ignores two obvious flaws. First, just because a resource is finite and geographically limited does not mean that markets cannot operate; real estate is the most obvious counterexample. Second, the Court was blind to the broader media landscape. Newspapers, theaters, movies, and other forms of communication were not subject to the same technical constraints as broadcast spectrum, but they were substitutes. Americans could get their news from the New York Times or ABC. They could watch a movie in a theater or wait until it aired on television.
Whatever persuasive power the scarcity argument may once have had has been shattered in the years since Red Lion. Cable news, streaming services, and the internet more broadly have completely upended the ways Americans consume media. Viewers may choose to watch the same content in a movie theater, at home on a DVD player, on broadcast TV, on cable TV, on a streaming service, or on video-hosting websites like YouTube.
Yet only one of those forms of media—broadcast television—is subject to government regulation that is allowed to infringe on broadcasters’ First Amendment rights.
This has resulted in frankly ridiculous outcomes, such as when Stephen Colbert was unable to air his interview with Democratic Senate candidate James Talarico because of concerns over the FCC’s equal-time rule. This rule generally requires broadcasters that provide airtime to one legally qualified candidate to give opposing candidates for the same office an equal opportunity to seek comparable airtime.
In response, Colbert told viewers that he had posted the interview to his YouTube channel, where it received over 5.3 million views in less than 48 hours, about double the 2.7 million viewers who tuned in on average to his show on CBS. FCC regulations are now the butt of jokes, with comedians mocking how antiquated and censorious they are.
The FCC can cite decades-old laws and precedents and pretend that its public-interest standard is necessary because broadcast spectrum is technically scarce. But that argument ignores the radically abundant media options available to modern consumers.
The FCC’s Threat to Free Speech
Beyond the obsolete scarcity argument, the major problem with the public-interest doctrine is its impact on free expression. As my former colleague Brent Skorup wrote, broadcasters are currently recognized as having only a “junior varsity” version of First Amendment rights.
Because Congress never precisely defined the public-interest standard, the FCC has had significant power to influence, coerce, and regulate media as it sees fit. While direct censorship is forbidden, the FCC has used its significant regulatory and merger powers over broadcasters to pressure or punish broadcasters over their speech. Bolstered by the 1943 Supreme Court case NBC v. United States, the FCC was allowed to “determine the composition of [broadcast] traffic.”
Presidents and FCC officials then learned to use that leverage against political opponents. Under President Kennedy, the FCC and other federal agencies helped drive hundreds of conservative radio broadcasters off the air. Nixon’s White House deployed FCC threats against the three major television networks, with White House officials reporting back that the broadcasters were “almost apologetic” and that “ABC will do anything we want.”
The result of such abuse of power was that the FCC monitored nearly every aspect of proposed programming and reviewed tens of thousands of “fairness complaints.” In 1970 alone, the FCC reportedly received more than 60,000 such complaints from politicians and members of the public. The phrase “regulation by raised eyebrow,” coined by Nixon FCC Chairman Dean Burch, captured the broad power the FCC had to influence speech by even the faintest suggestion that it was unhappy with a broadcaster.
With courts granting the FCC sweeping power under the public-interest doctrine and Congress giving the agency additional authority, the Commission asserted a list of policies and rules through which it could police speech. These include indecency, obscenity, contests, sponsorship identification, news distortion, hoaxes, the equal-time rule, and the fairness doctrine.
In 1987, President Reagan vetoed a congressional attempt to codify the Fairness Doctrine, an FCC policy that required broadcasters to present contrasting views on controversial issues of public importance. Effectively, the policy forced broadcasters to platform ideas and viewpoints they did not wish to support. One result of this restriction on FCC control over speech was more speech, including the rise of conservative talk radio that could again be openly partisan rather than forced to carry opposing views on controversial public issues.
But other policies and authorities remain as tools for the FCC to shape broadcast media as it believes to be in the public interest. During the 2010–2011 Comcast-NBC Universal merger review, the Democratic-led FCC extracted commitments and imposed conditions related to its priorities, including Spanish-language programming, online video, broadband adoption, and local news. During the Bush administration, Democratic lawmakers and some FCC commissioners pressed the FCC to investigate Sinclair Broadcasting after it planned to air a documentary critical of then-presidential candidate Sen. John Kerry. While FCC Chairman Michael Powell refused to block the broadcast on First Amendment grounds, he reiterated that the FCC was prepared to investigate Sinclair should the broadcast run afoul of FCC rules, potentially resulting in the loss of Sinclair’s licenses. Sinclair backed down and did not air the full documentary.
Now, under the Trump administration, the FCC has revived a more muscular use of these powers to influence and coerce speech. Chairman Carr revived a news-distortion complaint against CBS over a 60 Minutes interview with Kamala Harris. Paramount, CBS’s parent company, later paid $16 million to settle President Trump’s lawsuit over the same interview, and Skydance committed during its Paramount merger review to install an ombudsman to address complaints of bias at CBS News. Following the murder of Charlie Kirk, Carr threatened ABC and Disney over comments made by Jimmy Kimmel that Carr suggested were inconsistent with broadcasters’ public-interest obligations, stating that “we can do this the easy way or the hard way.” During the conflict with Iran, Carr warned broadcasters that running what he called “hoaxes and news distortions” could result in the loss of broadcast licenses. More recently, the FCC called Disney’s ABC station licenses in for early renewal, an unprecedented step that ABC called unlawful, arbitrary, and unconstitutional.
The Way Forward for Broadcast Media and the FCC
The reality is that these policies, and the public-interest doctrine as a whole, are fundamentally incompatible with both the marketplace of ideas and the modern media market. Rather than holding onto relics of the past that no longer—and never did—serve Americans well, it is past time for change.
Among the first things that should change is the courts’ broad grant of power to the FCC. The First Amendment and 47 U.S.C. § 326 both prohibit FCC censorship, yet precedents like NBC, Red Lion, and more have allowed the FCC to ride roughshod over those limits. Given that today’s media market offers not scarcity but near-infinite choice, there is simply no good justification for courts to treat broadcast media as less deserving of First Amendment protection. “Congress shall make no law…abridging the freedom of speech, or of the press” does not have an asterisk for broadcast media. It is past time for the Supreme Court to apply its otherwise strong First Amendment jurisprudence to broadcasters as well.
But Congress must also act to fix the problem it created. Narrow fixes, such as ending the news distortion or equal-time rules, would remove some of the most obviously problematic tools from the FCC’s toolbox. Some have proposed clarifying, changing, or restricting the public-interest doctrine to more tightly confine the FCC’s authority. These are good ideas, and I have recommended similar steps.
But the FCC’s fatal conceit is that the government must manage spectrum or else scarce spectrum will not operate properly. As history shows, however, when the FCC is restricted, speech and technological innovation grow. The problem with spectrum and broadcast media today is not the lack of government regulation; the problem is government regulation itself.
A more comprehensive fix, then, would be to get the government out of the business of determining who may use spectrum and on what terms. What that looks like has been, and should continue to be, the subject of significant research. And of course, a property rights approach may still include a government role for adjudicating disputes, ensuring safety and security, and coordinating with international broadcast authorities.
But the FCC does not need to micromanage spectrum, and it certainly does not need to use spectrum licenses as a lever for editorial control. With the FCC’s control over licenses removed, broadcast speech would be far freer from government manipulation and jawboning.
The FCC’s recent doubling down on the public-interest standard and its power over broadcast media shows that FCC reform is necessary—whether through litigation, legislation, narrow statutory changes, or fundamentally rethinking spectrum governance.