Days after the FCC Media Bureau warned broadcasters that no licensee holds a right to the public spectrum, a policy analyst at the Cato Institute is arguing that the regulatory framework underlying that notice is technically obsolete and constitutionally indefensible.
Cato Institute Free Expression and Technology Fellow David Inserra takes direct aim at the FCC’s public interest doctrine and the scarcity rationale the agency has relied on since the Supreme Court’s 1969 Red Lion decision, calling both a “house of cards.”
The FCC notice framing the Commission’s authority by describing how it “views licensees as public trustees of the radio spectrum” and invoking cases describing some FCC regulation as activity that “enhance[s] rather than abridge[s] the freedoms of speech and press protected by the First Amendment.” Inserra finds that framing to be telling.
“Unfortunately, the FCC is correct that Congress and the courts have allowed the agency to wield power that can trample broadcasters’ expressive rights,” he writes. “Fortunately, the notice also reveals how weak the case for that power is, both technically and constitutionally.”
On scarcity, Inserra acknowledges the physical reality while rejecting the legal conclusion drawn from it. “While the FCC and the Court were correct that spectrum is scarce, their analysis ignores two obvious flaws,” he writes. “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.” Whatever persuasive power that argument once carried, he argues, is gone.
“Streaming services and the internet more broadly have completely upended the ways Americans consume media,” leaving broadcast radio and television as “the only” form subject to government regulation that can infringe on First Amendment rights.
In an example, Inserra notes that after FCC equal-time rules prevented Stephen Colbert from airing an interview with a Democratic Senate candidate on CBS, the comedian posted it to YouTube, where it drew more than 5.3 million views in under 48 hours, roughly double the 2.7 million average viewers his CBS show attracts.
Under President Kennedy, he writes, the FCC and other federal agencies helped drive hundreds of Conservative radio broadcasters off the air. The Nixon White House deployed FCC threats against the three major television networks, with officials reporting back that the broadcasters were “almost apologetic” and that “ABC will do anything we want.”
Inserra argues the current FCC has revived that posture. He cites Carr’s news distortion complaint against CBS over a 60 Minutes interview with Kamala Harris, Paramount’s subsequent $16 million settlement of President Trump’s lawsuit over the same interview, and Skydance’s commitment during its Paramount merger review to install an ombudsman to address bias complaints at CBS News. He also points to Carr’s warning to ABC and Disney following Jimmy Kimmel’s on-air remarks: “We can do this the easy way or the hard way.”
Inserra’s proposed remedies range from narrow to structural.
He states Congress should, at a minimum, end the news distortion and equal-time rules and more tightly constrain the public interest standard. But the more fundamental fix, in his framing, is removing the government from spectrum licensing altogether.
“With the FCC’s control over licenses removed, broadcast speech would be far freer from government manipulation and jawboning,” he writes. “The problem with spectrum and broadcast media today is not the lack of government regulation; the problem is government regulation itself.”
