***[Federal communications commission]{.underline}***

***media bureau staff research paper***

The Scarcity Rationale For Regulating

Traditional Broadcasting:

An Idea Whose Time Has Passed

By John W. Berresford

March 2005

**The Scarcity Rationale**

**for Regulating**

**Traditional Broadcasting:**

**An Idea Whose Time Has Passed**

JOHN W. BERRESFORD[^1]

FEDERAL COMMUNICATIONS COMMISSION

**Abstract**

This paper concludes that the Scarcity Rationale for regulating
traditional broadcasting is no longer valid. The Scarcity Rationale is
based on fundamental misunderstandings of physics and economics,
efficient resource allocation, recent field measurements, and
technology. It is outmoded in today's media marketplace. Perhaps in
recognition of the Rationale's flaws, many variations of it have been
attempted, but none fares much better under sensible, factual analysis.

***Media Bureau Staff Research Paper No. 2005-2***

***March 2005***

**Table of Contents**

I.  The Scarcity Rationale
    ............................................................. 1

II. The Consequences of the Scarcity
    Rationale.................................. 2

III. The Supreme Court's Challenge to the Scarcity
     Rationale................. 8

IV. The Scarcity Rationale Is
    Invalid..............................................\.... 8

> A. The Scarcity Rationale Has No Basis in Either
>
> Physics or
> Economics...............................................................
> 8
>
> B. The Scarcity Rationale, If It Ever Had Validity, Is Invalid in
> Today's Media
> Marketplace..................................\...............\... 12
>
> C. Variations of the Scarcity Rationale Are Also
> Invalid................. 18
>
> D. The End of The Scarcity Rationale May Affect the Basis for
> Regulation of Indecent Broadcast Content ......\...............\... 28

V.  Conclusions........................................................................\....30

**I. The Scarcity Rationale**

In the formative decades of broadcasting in the United States, an idea
took hold that governed AM and FM radio and VHF and UHF TV[^2] provided
by use of radio spectrum. The idea was that these traditional
broadcasters should be regulated by the government because radio
spectrum was scarce.[^3] This idea, still in effect today, became known
as The Scarcity Rationale.

Seeds of the idea can be found almost at the beginning of radio
regulation,[^4] but a lengthy explanation of it appeared first in the
United States Supreme Court's 1943 decision, *NBC v. United States.* The
Court started with a factual premise, namely

> certain basic facts about radio as a means of communication \-- 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. There is a fixed natural limitation upon the number of
> stations that can operate without interfering with one another.[^5]

The *NBC* Court wanted government -- specifically, the FCC -- to be more
than "a kind of traffic officer, policing the wave lengths to prevent
stations from interfering with each other."[^6] Rather, the Court
stated, the FCC should play an intrusive role in traditional
broadcasting, that of "determining the composition of . . . traffic. The
facilities of radio are not large enough to accommodate all who wish to
use them. Methods must be devised for choosing from among the many who
apply. And since Congress itself could not do this, it committed the
task to the Commission."[^7]

In the late 1960s, in *Red Lion Broadcasting Co. v. FCC*, the Court
re-affirmed The Scarcity Rationale. Again, the Court stated the premise,
that "because the frequencies reserved for public broadcasting were
limited in number, it was essential for the Government to tell some
applicants that they could not broadcast at all because there was room
for only a few."[^8] The *Red Lion* Court characterized traditional
broadcasters as "proxies for the entire community, obligated to give
suitable time and attention to matters of great public concern."[^9] The
Court held that "\[b\]ecause of the scarcity of radio frequencies, the
Government is permitted to put restraints on licensees in favor of
others whose views should be expressed on this unique medium."[^10]

**II. The Consequences of the Scarcity Rationale**

The fact that only a finite amount of spectrum use was allowed for
traditional broadcasting, without more, did not require intrusive
regulation. Merely an allocation system, defining and awarding exclusive
rights to use certain frequencies,[^11] would have sufficed to 'choose
from among the many who apply.'[^12] Like any allocation system, this
one would need clearly defined rights, a police force, and a dispute
resolution system for allegations of interference, unauthorized
operations, and other misconduct.

Armed with The Scarcity Rationale, however, the FCC followed the Supreme
Court's urging to 'determine the composition of the traffic'[^13] and
make traditional broadcasters 'proxies for the entire community.'[^14]
The FCC put a large number of regulations on traditional
broadcasters.[^15] These were believed to promote good results such as
balanced debate about important issues, the education of children and
their protection from indecent content, adequate local service for rural
areas, the promotion of locally created programming and diverse kinds of
programs, racial integration, the empowerment of women, and competition
among creators of programming. To further these public policy goals, the
government relied on The Scarcity Rationale to justify depriving
traditional broadcasters of many freedoms that ordinary businesses
have.[^16] Perhaps most important, The Scarcity Rationale was thought to
justify making the First Amendment[^17] rights of traditional
broadcasters less than those of providers of newspapers, books and
magazines, movies, live performances, and cable and satellite
broadcasters.[^18]

Regulations covered many aspects of operating a traditional broadcast
business. First and perhaps most important, entry into traditional
broadcasting was limited to those who could fit within the allocation
that the FCC had made for that activity.[^19] Their numbers, originally,
were few.[^20] The FCC carefully chose the few who would be given a
frequency license and the many who would be denied one.

In using its licensing power to limit entry into traditional
broadcasting, the FCC joined the ranks of governments that limited the
right to speak to a large audience. When printing presses were first
used in Western Europe, for example,

> Pope Alexander VI issued a bull in 1501 against the unlicensed
> printing of books. In 1559 the *Index Expurgatorius*\[[^21]\] was
> first issued. Printing was by then widespread enough to worry the
> authorities and centralized enough to present a target for control. .
> . . . In 1557, the British crown, seeking to check seditious and
> heretical books, chartered the Stationers' Company and limited the
> right to print to the members of that guild. Thirty years later the
> Star Chamber, to curtail 'greate enormities and abuses' of 'dyvers
> contentyous and disorderlye persons professinge the arte or mystere of
> Pryntinge or sellinge of bookes,' restricted the right to print to the
> two universities and to the twenty-one existing shops in the city of
> London with their fifty-three presses.[^22]

Until 1695, the British Parliament required that all publications
receive prior approval by a government censor. This was required for
newspapers in the American colonies until 1720. Even after prior
censorship ended in the United Kingdom and the United States, laws
against sedition and blasphemous libel "remained in force and served as
significant restraints on publication."[^23]

In 20^th^ century America, the FCC and its predecessors used their
licensing powers to marginalize or shut down "propaganda" radio
broadcasters that promoted only the broadcasters' ideas.[^24] According
to some, the FCC's "Fairness Doctrine" was used more recently "to
challenge and harass right-wing broadcasters"[^25] and probably had the
net effect of suppressing speech about controversial issues.[^26]

In choosing the few persons who would be allowed entry into traditional
broadcasting, the FCC considered the kinds of programming that would-be
entrants would broadcast,[^27] their technical and financial
resources,[^28] the closeness of their connections to the community they
would serve,[^29] and their races, ethnic origins and sexes.[^30] The
FCC also denied entry to certain persons who were already in the media
--

such as those who already owned broadcast licenses[^31] or newspapers in
the communities where they wanted to broadcast.[^32]

Traditional broadcasters, once they entered, were liable to the
Commission's continual surveillance concerning all these subjects.
Surveillance was also possible when each license came up for renewal.
Few licenses were ever revoked or denied renewal, but the FCC's
surveillance was a Sword of Damocles over every traditional
broadcaster's head. Though it seldom fell, it was never removed.[^33]

FCC regulations required traditional broadcasters to broadcast content
against their will[^34] and forbade them to broadcast the content they
wanted.[^35] It is highly likely that any such regulations, if imposed
on newspapers,[^36] other print media, or cable television,[^37] would
be found to violate the First Amendment.

Many more regulations did not command or prohibit certain content
explicitly, but had the same practical effect. Rules that required
traditional broadcasters to broadcast certain content against their will
effectively forbade them to broadcast what they wanted to broadcast at
the same time.[^38] Other indirect commands and prohibitions suggested
certain kinds of programs,[^39] required traditional broadcasters to
actively ascertain[^40] and satisfy[^41] the wishes of their local
communities, required discussion of national and local public issues in
which differing sides had fair coverage ("The Fairness Doctrine"),[^42]
prohibited "unfair editorializing, . . . slanted news coverage, . . .
\[and\] over-commercialization,"[^43] and required racially diverse
staffs[^44] and the broadcast of programs created by "independent
producers."[^45]

Arguably similar indirect regulation of newspapers and other
non-broadcast "speakers," even if couched in neutral terms, has been
found to violate the First Amendment.[^46] These and other fruits of The
Scarcity Rationale put traditional broadcasting, and especially its
contents, under far more government control than any comparable business
in the United States since the end of prior censorship in the colonial
era.

**III. The Supreme Court's Challenge to the Scarcity Rationale**

In 1984, the Supreme Court asked whether The Scarcity Rationale was
still valid:

> The prevailing rationale for broadcast regulation based on spectrum
> scarcity has come under increasing criticism in recent years. . . . .
> We are not prepared, however, to reconsider our longstanding approach
> without some signal from Congress or the FCC that technological
> developments have advanced so far that some revision of the system of
> broadcast regulation may be required.[^47]

In 1985 and 1987, in two decisions ending The Fairness Doctrine, the
Commission attempted to send such a signal.[^48] These signals may have
become blurred because vestiges of The Fairness Doctrine remained in
effect until 2000.[^49] This paper takes up where the Commission's 1987
decision left off and concludes that The Scarcity Rationale no longer
serves as a valid justification for the government's intrusive
regulation of traditional broadcasting.

# IV. The Scarcity Rationale Is Invalid

A. [The Scarcity Rationale Has No Basis in Either Physics or
Economics]{.underline}

1\. Physics

The Scarcity Rationale appears to assume that there is a physical thing,
like land and water, of which there is a scarce amount. What is commonly
called "the radio frequency spectrum," however, has no discrete physical
existence. When traditional broadcasting occurs, what happens is a new
movement of electrons. The electrons already exist, move, and make up
the world around us. "The whole art of signaling by radio is to cause
movement of a large-enough mob of electrons in unison in one place (the
*transmitting aerial*) so that they have a detectable effect on
electrons in another place (the *receiving aerial*)."[^50] Traditional
broadcasting can be compared aptly to the creation of a wave in water,
which is an activity, a perturbation on the surface of the water, but is
not the water itself.[^51] As Professor and former FCC Commissioner Glen
O. Robinson has stated, "The 'spectrum' is merely a way of describing
the forms of electromagnetic radiation; it is not a thing but a force
(or more precisely a 'disturbance in the force,' to employ Star Wars
terminology)."[^52] Thus, to the extent that The Scarcity Rationale
assumes that there is a tangible thing, radio spectrum, of which there
is a scarce amount, the Rationale is simply incorrect as a matter of
scientific fact.

Nor, as noted above,[^53] does the movement of electrons require the
government to choose the persons who make them move or the messages thus
conveyed. Indeed, to suggest such a role for government may have
dangerous consequences. When a traditional telephone call occurs on
copper wire, the same movement of electrons that occurs on "The People's
Airwaves" occurs within the phone wire. It has never been suggested,
however, that the FCC limit the number of persons who may have telephone
conversations or regulate what they say.[^54] A similar kind of movement
occurs in face-to-face conversation, when sound waves from a speaker's
mouth enter the listener's ear. The First Amendment, it is safe to
assume, would bar any government from licensing only a few individuals
to talk and from regulating what they say.

The Scarcity Rationale thus appears to be based on fundamental
misunderstandings of physics.

2\. Economics

Both the *NBC* and *Red Lion* Courts stated that spectrum (or spectrum
allocated to traditional broadcasting) is scarce in the sense that it is
finite.[^55] There is also, at any given time, a finite amount of land,
wood, and many other resources.[^56] The U.S. government does not,
however, control all the land in the United States and license its use
for free to a few persons who promise to use it in approved ways.[^57]
Guitars are made from trees that grew on government land, but the
government does not limit the supply of guitars and license a few for
free in each area to persons who promise to play certain kinds of music
on them. At times in American history, paper has been in very short
supply, but government has not considered either licensing newspapers or
granting rights of access to them.[^58] Thus, the fact that possible
spectrum use is finite makes a weak foundation for The Scarcity
Rationale and for any regulation of spectrum use beyond allocation and
"traffic control."

There may be no shortage of possible spectrum use today, in fact. The
FCC's Spectrum Policy Task Force recently found, according to
"\[p\]reliminary data and general observations" that "portions of the
radio frequency spectrum are not in use for significant periods of
time."[^59] Earlier, the FCC had UFH television and FM radio licenses
sitting on its shelves for decades and could not give them away. In
other words, even if the supply of spectrum is finite, the demand for it
may not be infinite.[^60]

It is also incorrect to imply that because the possible spectrum use is
finite at any moment, there is a fixed maximum usage in the long term. A
finite amount of land can accommodate more and more persons as
technology makes it possible to build higher buildings. With busses,
paved roads, and better engines, more people and goods can be moved
along the same road. Throughout the history of radio, new techniques and
technologies have enabled more and more communications to occur via
spectrum use. Recently announced techniques and technologies of this
type include secondary markets, "overlay" and "underlay" rights,
easements, "commons" models, Ultra Wide Band, Software Defined Radios,
Frequency Agile Radios,[^61] Digital Television[^62] and Digital
Radio.[^63] Thus, scarcity is not an inherent barrier to more users and
communication, but an horizon that continually recedes as inventions
advance.

Perhaps most damaging to The Scarcity Rationale is the recent
accessibility of all the content on the Internet, including eight
million blogs,[^64] via unlicensed spectrum and WiFi and WiMax
devices.[^65] The Scarcity Rationale, based on the scarcity of channels,
has been severely undermined by plentiful channels. It may not survive
the arrival of technologies that free a speaker from needing a dedicated
channel at all.

The Supreme Court, in the passages from *NBC* and *Red Lion* quoted
above on pages 1 and 2, hinted at another form of scarcity \-- that
traditional broadcast spectrum is scarce in the sense the demand for it
exceeds the supply. That 'scarcity' is largely the result of decisions
by government, not an unavoidable fact of nature. The government's
decisions about spectrum allocation (especially for traditional
broadcasting), channel bandwidth, interference protection, local
coverage and other technical matters make licenses fewer than they
otherwise would be.[^66] A second and perhaps even more fundamental
decision by which government makes traditional broadcast licenses scarce
is to give them -- very valuable things in many cases -- away for
free.[^67] If a valuable thing is given away for free, it should not be
surprising that the demand exceeds the supply.[^68]

In sum, the Scarcity Rationale ignores basic principles of resource
allocation, recent field measurements, history, the progress of
technology, and economics.

> B. [The Scarcity Rationale, If It Ever Had Validity, Is Invalid in
> Today's Media]{.underline} [Marketplace.]{.underline}

Since the development of The Scarcity Rationale, the number of
broadcasters and channels has increased many fold.[^69] Any consumer of
traditional television and radio for the last forty years knows this
intuitively, and studies prove it. Most notably, the FM radio and UHF
television dials have become thoroughly populated in almost all markets.
Nationally, the number of full-power traditional television and radio
stations has risen from 7,411 in the year *Red Lion* was decided to
15,273 at the end of 2004.[^70] One typical market \-- Kansas City,
Missouri \-- went from 18 traditional radio stations and 3 traditional
television stations in 1960 to 40 and 9 in 2000. [^71] In contrast,
today Kansas City has only two general circulation newspapers.[^72]

The FCC has also overseen the creation of new broadcast media such as
DBS service and low power FM. Many Digital Television broadcasters are
broadcasting two or more channels of content ("multicasting")[^73] and
two DARS systems offer hundreds of channels in every market.[^74] The
FCC also allows broadcast-type operations by licensees in Instructional
Fixed Television Service, Multipoint Distribution Service, and
Multichannel Multipoint Distribution Service. Although these allocations
have not been used for broadcasting on a large scale, there is no legal
or regulatory barrier to such uses. Many spectrum bands are being used
to transmit news and information to Personal Digital Assistants,
cellular phones, other radio receivers,[^75] and personal computers with
WiFi and WiMax connections.

Even more new channels have appeared on media that do not use
radio.[^76] The first was cable television, whose growth in number of
channels has dwarfed traditional broadcasters.[^77] No less important
are the Internet (narrowband and broadband); players of video cassettes,
compact disks and DVDs; and the automatic transmission of news headlines
and other information to personal computers and other wired
terminals.[^78] The decades since The Scarcity Rationale took shape have
also seen the growth, in the print media, of direct mail solicitation on
a large scale and thousands of specialty magazines. Another old medium,
the feature-length movie, was used in a Presidential race for the first
time in 2004 in the highly successful Fahrenheit 9/11.[^79] These new
and old technologies, though they do not use radio, perform the same
function of providing channels for the dissemination of information,
news, opinion, and entertainment.

From the success the new broadcasters and media have achieved,[^80] it
appears that American consumers find them useful. Popular content and
consumers' "ears and eyeballs" continue to move from traditional
broadcasters to newer, more channel-rich media. DARS recently won the
popular Howard Stern away from traditional radio broadcasting and added
major league baseball to its lineup.[^81] Equally important, the new
channels of broadcasting make available amounts and kinds of content \--
both information and entertainment[^82] \-- that were unavailable to
American consumers in the decades when The Scarcity Rationale took
shape.[^83] A partial list includes the programs shown on educational
broadcast stations, which were few before the 1970s,[^84] public
broadcasting on both TV[^85] and radio;[^86] all news and talk channels
on radio,[^87] and hundreds of channels on cable TV and DBS
service,[^88] especially ones broadcasting non-mainstream opinions that
were seldom heard in earlier decades;[^89] channels of programming
directed at racial, ethnic, religious, and other groups who were not
significant enough to interest traditional broadcasters in the era of
few channels.[^90]

More new content is available on the Internet, of course \-- billions of
web pages, both portals such as The Drudge Report, the personal web
pages of millions of individuals, small organizations, and bloggers such
as andrewsullivan.com,[^91] Daily Kos,[^92] and kausfiles.[^93] The
latter have a potentially transformative potential for the dissemination
of not only opinion, but also facts and news in competition with
"mainstream media."[^94] Almost all of the millions of persons who
operate portals and web pages would have been unable to gain access to
the traditional broadcast media, much less grow large on it. The
Internet, in contrast, gives them easy entry and access to a far larger
audience, namely billions of screens and the people watching them, at a
fraction of the cost of earlier media.[^95] The Internet also makes
available, at any time and any place, including schools and libraries,
content such as newspapers,[^96] magazines,[^97] radio stations[^98] and
TV programs[^99] that were previously available only in small areas, or
to small numbers of subscribers, or at certain times. With the Internet,
small groups of persons who have a common cause or information to share
and were previously isolated can find each other and communicate among
themselves and potentially to a massive audience.[^100] Such small
groups had no access to channel-poor traditional media and, therefore,
were unable to find each other, much less communicate with each other,
have access to a mass audience, and affect national and local
affairs.[^101] Through file-sharing technologies, the Internet also
makes available vast amounts of entertainment that was previously
unobtainable except through purchase or hearing on radio.[^102]

In sum, the decades since The Scarcity Rationale took shape have seen an
explosion in the number of distribution networks and channels, both via
radio and other media -- more traditional broadcasters, cable
television, DBS, DARS, Internet, WiFi and WiMax -- and in the mass of
content that fills them. By no rational, objective standard can it still
be said that, today in the United States, channels for broadcasting are
scarce.

In contrast, recent decades have seen a decline in the number of daily
newspapers in the United States.[^103] Today, they are scarce compared
to broadcasters and other media.[^104] If scarcity is the basis for the
intrusive government regulation described in Section II above, then
newspaper outlets, not broadcast stations, deserve greater
attention.[^105]

C. [Variations of The Scarcity Rationale Are Also Invalid]{.underline}

In what seem attempts to shore up The Scarcity Rationale, several other
rationales have been advanced to justify government's intrusive
regulation of, and light First Amendment protection for, traditional
broadcasters. The most important aspect they all have in common is that
none of them asserts any scarcity of radio spectrum.

*The People's Airwaves Rationale.* The regulation of traditional
broadcasters is sometimes justified by the term "The People's Airwaves":
"Broadcast regulation has, from its inception, been based on the premise
that the airwaves belong to the people, licensed to be used in the
public interest, convenience and necessity."[^106]

The premise is incorrect. No law states that the airwaves (to the extent
that they exist at all, see pages 8 and 9 above) are owned by "The
People." No law, in fact, states that the airwaves are owned by any
person. Section 301 of the Communications Act, to the extent that it
mentions ownership of "channels of radio transmission," explicitly
prohibits it. The statute does grant the federal government, to the
exclusion of any state government and individual, *control* over the
medium.[^107]

Moreover, The People's Airwaves Rationale is a dubious basis for the
kinds of regulation described in Section II. Even if the federal
government did own the radio spectrum, that alone should not grant the
federal government the kinds of regulatory powers described in Section
II. The United States Postal Service is part of the federal government,
but is not therefore allowed to license persons before they may send
mail or, short of obscenity, regulate the words they write.[^108] Most
likely, some newspapers and musical instruments are made from trees that
grew on government land. No one would claim that they are therefore made
of The People's Wood and that the federal government may regulate the
content of those newspapers or require that the music played on the
instruments address controversial public issues and express differing
views. Residents of government housing and employees of public
universities do not, because they use public resources, lose their First
Amendment rights. Local governments, for their part, control the roads
and sidewalks on which newspapers are delivered and sold, but local
governments are not therefore authorized to regulate newspapers.[^109]
Indeed, in granting access to public forums such as sidewalks and parks,
the Constitution carefully limits government officials' right to prefer
some speakers and some messages over others.[^110] Finally, even if the
airwaves did belong to the people, the same cannot be said of
traditional broadcasters' land, transmitters, buildings, studio
equipment, personnel, and audiences gained through years of sending out
popular content. Those things belong exclusively to the broadcasters and
their shareholders. Thus, The People's Airwaves Rationale is both
incorrect as a matter of law and illusory as a rational basis for the
kinds of regulation described in Section II.

*The Dangerous Power Rationale*. Scarcity alone does not always create
power. A business can be scarce \-- the only gourmet restaurant or
bicycle shop in a small town \-- and still not have the power to force
consumers to patronize it or pay exorbitant prices.

The *Red Lion* Court clearly believed that traditional TV broadcasters
in 1969 had not only scarce licenses, but also dangerous power over
viewers. Broadcast technology, the *Red Lion* Court stated, "supplants
atomized, relatively informal communication with mass media as a prime
source of national cohesion and news."[^111] But for the Fairness
Doctrine and other regulations, the Court warned, "station owners and a
few networks would have unfettered power to make time available only to
the highest bidders, to communicate only their own views on public
issues, people and candidates, and to permit on the air only those with
whom they agreed."[^112] The Court listed as sources of traditional
broadcasters' power "their initial government selection . . . before new
technological advances opened new opportunities for further uses\[, . .
. l\]ong experience in broadcasting, confirmed habits of listeners and
viewers, network affiliation, and other advantages in program
procurement."[^113]

In the same year, Chief Judge Warren Burger of the United States Court
of Appeals for the District of Columbia Circuit ("the D.C. Circuit")
spoke of "\[t\]he infinite potential of broadcasting to influence
American life"[^114] Several years later, the Supreme Court stated that
it was simple "reality that in a very real sense listeners and viewers
constitute a \'captive audience.\' . . . . As the broadcast media became
more pervasive in our society, the problem has become more acute."[^115]
The Court quoted approvingly from the D.C. Circuit's expression of fear
about the power of traditional broadcasters:

> In an age of omnipresent radio, there scarcely breathes a citizen who
> does not know some part of a leading cigarette jingle by heart. . . .
> It is difficult to calculate the subliminal impact of this pervasive
> propaganda, which may be heard even if not listened to, but it may
> reasonably be thought greater than the impact of the written
> word.[^116]

Not all observers agree that traditional broadcasters ever had dangerous
power. To some, the idea that the American people are easily hypnotized
by "subliminal," "pervasive propaganda" borders on the insulting. Mr.
Justice Douglas, in his 1973 concurring opinion in *CBS v. DNC*, quoted
with approval the statement that

> \[t\]he implication that the people of this country \-- except the
> proponents of the theory \-- are mere unthinking automatons
> manipulated by the media, without interests, conflicts, or prejudices
> is an assumption which I find quite maddening. The development of
> constitutional doctrine should not be based on such hysterical
> overestimation of media power and underestimation of the good sense of
> the American public.[^117]

Indeed, American television viewers have persistently acted in ways that
belie the power of the incumbent "Big Networks" to make them watch
whatever the Networks show. Not many years before *Red Lion*, there were
only two Big TV Networks, NBC and CBS. Despite their long experience in
broadcasting, confirmed habits of viewers, network affiliation, and
other advantages in program procurement, ABC won enough viewers to
become the third "Big Network." Decades later, Fox overcame the same
allegedly insuperable obstacles and became the fourth "Big Network." In
2002, HBO surpassed the "Big Four Networks" when its most popular show
was on.[^118] This year, more Americans watched the Republican National
Convention on cable's FoxNews channel than on any traditional TV
broadcaster.[^119] The 2004-05 season of traditional TV began with,
"\[f\]or the first time, . . . cable controlling a larger share of
viewers than the networks" and with "\[s\]ome advertisers . . .
questioning the value of buying commercials on networks that lose more
viewers every year."[^120] Both Republican and Democratic managers of
the recent Presidential campaign "agreed that the Internet and other
emerging news technologies have transformed the political process by
making it more democratic and encouraging more people to become
involved."[^121]

Whatever merit The Dangerous Power Rationale may have had when there
were only three Big Networks, it has far less today. Several new
networks have emerged on traditional broadcast channels,[^122] cable TV
(with systems averaging many dozens of channels[^123]) is the primary
multi-channel video medium,[^124] and DBS now serves more than 23
million households with more than one hundred channels.[^125] The fear
that big media owners would broadcast only their own opinions and
silence others, which the *Red Lion* Court voiced,[^126] has not proved
true on today\'s multi-channel media.[^127] Traditional broadcast TV is
used by a small and dwindling percentage of households,[^128] and recent
controversies have dented its major news operations\' reputation for
objectivity.[^129] The vast majority of American households pay money to
avoid traditional TV and get other channels.[^130]

With all the new broadcast channels, the "confirmed habits of . . .
viewers" have become less confirmed, and the former dominance of the Big
Networks over viewers is largely dissipated. For example, the first
Presidential debate in 1960 drew more than 70 million viewers, but the
first one in 2004 drew only about 62 million despite a substantially
larger population. 90 million viewers saw the last game of the 1959
World Series; only 31.5 million watched the last game of the 2004 World
Series.[^131] What are pervasive today are not comatose
couch-potatoes,[^132] but hand-held remotes for easy shifting among
hundreds of channels, electronic program guides for searching out your
favorite kind of content, "time-shifting" devices such as Video Cassette
Recorders that enable viewers to see programs when they wish, escape
from advertising via devices such as TiVo, as well as all the new media
and receivers described above.

The Big Networks still garner significant audiences and advertising
revenues,[^133] although undoubtedly a substantial share of their
viewers sees them via cable TV and DBS service. Their large audience
shares, moreover, may be more the result of their skill at winning the
mass audience than of their use of radio waves or the industry structure
of fifty years ago. Popularity, fairly won in a competitive market,
provides a dubious basis for the kinds of regulation described in
Section II.

A variant of The Dangerous Power Rationale is that traditional
broadcasting has a unique "immediacy." In the words of the FCC of 1983,
"Implicit in the **'**scarcity' rationale . . . is an assumption that
broadcasters, through their access to the radio spectrum**,** possess a
power to communicate ideas through sound and visual images in a manner
that is significantly different from traditional avenues of
communication because of the immediacy of the medium."[^134]

This idea was debunked by the D.C. Circuit in 1986:

> the deficiencies of the scarcity rationale as a basis for depriving
> broadcasting of full first amendment protection, have led some to
> think that it is the immediacy and the power of broadcasting that
> causes its differential treatment. Whether or not that is true, we are
> unwilling to endorse an argument that makes the very effectiveness of
> speech the justification for according it less first amendment
> protection. More important, the Supreme Court\'s articulation of the
> scarcity doctrine contains no hint of any immediacy rationale. The
> Court based its reasoning entirely on the physical scarcity of
> broadcasting frequencies . . . . This "immediacy" distinction cannot,
> therefore, be employed to affect the ability of the Commission to
> regulate . . . .[^135]

*The Broadcaster of Last Resort Rationale*. Traditional broadcasters
were most important when they were present in virtually every American
home and no other broadcasters were. Today, the overwhelming majority of
American households have chosen to leave traditional TV for cable and
DBS service \-- fee-based, channel-rich, relatively unregulated
offerings of video (and, increasingly, audio) content. As many as three
quarters of homes in the U.S. use Internet access[^136] and almost all
the rest have access to the Internet in schools and libraries and/or at
work. One or more of these new technologies is physically available to
virtually all the homes that have not yet adopted them.

But is traditional broadcasting still the only medium for low income,
rural, or other "Have Not" households? If so, there might be a
Broadcaster of Last Resort Rationale for the government to make
traditional broadcasting available where, due to geography and/or
economics, it would not normally spread. Evidence, however, undermines
that premise. Two groups of Americans that have lower than average
incomes and assets -- African-Americans and Hispanics -- appear to be
significant consumers of cable TV and DBS service. Black Entertainment
Television, for example, is available only on those new media and is
highly successful.[^137] DBS has won large numbers of Spanish-speaking
US households.[^138] A study in the mid-1990s found that the demand for
cable service "is only slightly sensitive to household income."[^139]
The largest DBS provider has stated that its subscribers are more likely
than cable TV subscribers to live in rural areas.[^140] Internet access
has been available for several years in the vast majority of public
libraries and classrooms.[^141] Thus, the notion that cable TV, DBS
service, and Internet are unavailable to or unaffordable by Have Not
American households is questionable, at best.

Even if there were a Broadcaster of Last Resort Rationale for government
to bring broadcasting to Have Not households, the regulations described
in Section II above may not be the best way to effect it. A better way
may be to subsidize subscription by Have Not households to cable TV, DBS
service, and Internet access. The vast majority of American households
prefer these media. The new media also contain local news and public
affairs content that traditional broadcasting lacks \-- regional
networks such as New England Cable News Network, county-specific
\"public, educational, and government\" (\"PEG\") channels on cable
TV,[^142] and vast numbers of neighborhood-oriented web pages. These new
outlets for local news and public affairs content not only supplement
traditional broadcasters, they serve territories (large regions and
small neighborhoods) that traditional broadcasters cannot, or do not,
serve. Bringing Have Nots on board the new technologies may be more
efficient, not to mention more generous, than relegating them to an
obsolescent technology.

*The Fiduciary or Trustee Rationale.* It is sometimes asserted that
traditional broadcasters are fiduciaries or trustees who must act not in
their own interest, but for the public.[^143] No statute expressly
places fiduciary duties on traditional broadcasters, however.[^144] It
is questionable why traditional broadcasters should be fiduciaries. The
imposition of a fiduciary duty is a conclusion, the result of something
that provokes it. As shown above, two facts that might provoke fiduciary
duties -- the enjoyment of scarce resources or the dangerous power that
traditional broadcasters may have had fifty years ago -- no longer
exist. Also, being a fiduciary may be unrelated to scarcity.[^145] One
can be a fiduciary as to an asset that is plentiful, such as shares of a
publicly traded corporation.

*The Condition Rationale.* In some circumstances, the government may
grant a benefit or privilege only on condition that its recipient give
up a constitutional right. For example, plea bargaining, in which
prosecutors propose light punishment if the defendant foregoes his or
her Constitutional right to trial by jury, is an accepted part of this
country's criminal justice system.[^146] When the FCC auctions a license
for broadcasting,[^147] it conditions delivery of the license on payment
of the winning bid. Might the Commission instead condition receipt of
the license on "payment in kind," specifically acceptance of regulations
that resemble those described in Section II above and limit the
broadcaster's First Amendment freedoms?

The issue of when the government may lawfully condition a benefit on its
recipient relinquishing a constitutional right is both complex[^148] and
beyond the scope of this paper. Experience with the regulations
described in Section II, however, teaches several lessons about their
prudence and practicality.

First, now that there are several media other than traditional TV and
radio by which to reach listeners and viewers,[^149] conditions placed
only on them are not so easily characterized as over-reaching by the
government, 'an offer that a would-be broadcaster cannot refuse.' The
same basic fact, however \-- the large number of channels of media today
and the variety of content being broadcast on them -- cuts the other way
also. The predicate for a regulatory mandate that certain desirable
programs be broadcast is the market's failure to produce those programs.
That predicate is much more difficult to prove today than it was when
most Americans had only three TV channels, and makes a weaker basis for
depriving speakers of their First Amendment rights.

On a more practical level, some mandates, if they were seriously
enforced, could tax the finite resources of the Commission and might
produce no benefit for consumers. For example, if the Commission
required traditional broadcasters to transmit "educational" programs, it
might be extremely laborious for the Commission to write a meaningful
and objective definition of "educational," apply it to the weekly
broadcasts of thousands of stations, and impose attention-getting
sanctions on the stations that came up short. Content mandates that
welcomed public complaints would be of even more dubious effect. The
Fairness Doctrine, for example, provoked thousands of complaints to the
Commission annually in the 1970s.[^150] Only a small fraction of them
were, or could realistically be, given serious consideration.[^151] A
significant effect of the Fairness Doctrine may thus have been to create
expectations among many members of the public, the overwhelming majority
of whom were disappointed by the Commission's inevitable inaction.

In the unlikely event that traditional broadcasters were effectively
required to broadcast unpopular or unprofitable content, they might
simply migrate to other, less regulated media. The vast majority of
consumers, who want to be entertained, would probably follow, perhaps
leaving traditional broadcasters little viewed and their spectrum
wastefully used.

The practical difficulties outlined above are not trivial. They should
make government search for more efficient ways to promote the content
that the market does not produce and that the American people
need.[^152] Government creating that content itself and broadcasting it
on its own channels, which is one function of educational and public
broadcasting, may be one such way. Another are PEG channels on cable
television.

> D. [The End of The Scarcity Rationale May Affect the Basis for
> Regulation of Indecent Broadcast Content.]{.underline}

The rationales for the Commission's regulation of traditional
broadcasters' indecent content have been that traditional broadcasters
are uniquely pervasive and 'invade the home,' where unsupervised
children are liable to be exposed to indecent content;[^153] the
Commission's authority in this area is not expressly premised on The
Scarcity Rationale.[^154]

The facts that render The Scarcity Rationale invalid, however, may also
undercut the rationales for the Commission's regulation of indecent
broadcast content. Most importantly, many new broadcasters have appeared
in recent decades.[^155] Cable television[^156] and Internet
access[^157] are almost universally available to American households.
The signals of radio-based new media such as DBS and DARS are as
pervasive as traditional broadcasters'. Although these new media require
households to choose them, endure installation, and pay monthly fees,
the overwhelming majority of households happily do all those things. If
traditional television still invades the home in some unique way, the
invasion leaves most American households not anxious, but indifferent.

If new media are now as pervasive and invasive as only traditional
broadcasters once were, should the new media's content be supervised as
only the latter have been? To expand such supervision to the new media
would risk reducing adults to only content fit for children -- a failing
of potentially Constitutional dimensions.[^158] It may be, on the
contrary, that the spread of new media, with hundreds of new channels,
should cause regulation of indecency in traditional broadcasting to end.
If what is pervasive today is hundreds of channels and billions of web
pages, no one channel, show, or page is as pervasive as the Big
Networks' shows were in the heyday of their three-member
oligopoly.[^159] Also, new technology has created, along with many new
channels and web pages, new applications such as the V-Chip and blocking
that allow households to regulate the content available in the home more
directly and more personally.[^160] These new applications empower
consumers who wish their homes to be free of indecent content while
allowing others to access their content of their choosing free from
government intervention and oversight.

**V. Conclusions**

The Scarcity Rationale was intellectually questionable from its
inception. Moreover, even its proponents knew it might not be needed
long. The *Red Lion* Court realized that new technologies may require
changes in old ideas.[^161] The technologies that have appeared since
*Red Lion*, as well as other factors described above, have nullified The
Scarcity Rationale. It no longer provides a rational basis for
regulating traditional broadcasters in the ways described in Section II.

Government remains strongly interested in American media and in ensuring
that news, information, opinion (especially about local issues) and
entertainment reach all Americans.[^162] Government also has antitrust
interests in promoting competition in the sale of advertising and the
creation and purchase of programming. The interment of The Scarcity
Rationale need not frustrate any of those interests. On the contrary, it
could re-focus attention on the media of today, its shortcomings (if
any), and remedies for them that will solve today's problems rather than
those of a channel-poor and fortunately bygone time.

[^1]: ^\*^ Attorney, Media Bureau; Adjunct Professor of Law, George
    Mason University School of Law; proprietor,
    http://www.johnwberresford.com. The views expressed in this paper
    are the author\'s and do not necessarily represent those of the
    Media Bureau, the Commission, George Mason University School of Law,
    or other members of their staffs. Any errors herein are the author's
    alone.

[^2]: This paper uses the term "traditional broadcasters" to refer to
    these broadcasters. The unqualified term "broadcaster" can refer
    also to cable TV, Direct Broadcast Satellite ("DBS"), the Internet
    (including web pages, web portals, radio stations that are available
    on the Internet, and file-sharing platforms), and Digital Audio
    Radio Service ("DARS") operators. The broader term "the media"
    includes broadcasters and creators of newspapers, magazines, movies
    (in theatres and via purchase and rental in stores, by mail, and on
    the Internet), and recorded music in the form of tapes, CDs and
    DVDs.

[^3]: The regulators were the Secretary of Commerce until 1927, the
    Federal Radio Commission ("FRC") from 1927 to 1934, and the Federal
    Communications Commission ("the FCC" or "the Commission") from 1934
    to date. All were under the supervision of the President and
    Congress.

[^4]: *See, e.g.,* Opening Address of Secretary of Commerce Herbert C.
    Hoover at the Fourth National Radio Conference, Washington, D.C.,
    Nov. 9, 1925 ("It is a simple physical fact that we have no more
    channels. . . . . A half dozen good stations in any community
    operating full time will give as much service in quantity and a far
    better service in quality than 18, each on one-third time"); *FRC v.
    Nelson Bros. Bond & Mortgage Co*., 289 U.S. 266, 279 (1933) ("In
    view of the limited number of available broadcasting frequencies,
    the Congress has authorized allocation and licenses"); *FCC v.
    Sanders Bros. Radio Station*, 309 U.S. 470, 474 (1940) ("The number
    of available radio frequencies is limited. . . . Unless Congress had
    exercised its power over interstate commerce to bring about
    allocation of available frequencies and to regulate the employment
    of transmission equipment the result would have been an impairment
    of the effective use of these facilities by anyone").

[^5]: *NBC v. United States*, 319 U.S. 190, 213 (1943) ("*NBC*").

[^6]: *Id.*, 319 U.S. at 215.

[^7]: *Id.* at 216.

[^8]: *Red Lion Broadcasting Co. v. FCC*, 395 U.S. 367, 388 (1969)
    ("*Red Lion*"). *See also* *id.* at 399 ("spectrum space" is a
    resource "of considerable and growing importance whose scarcity
    impelled its regulation by an agency authorized by Congress").

[^9]: *Id.* at 394.

[^10]: *Id.* at 390. For more recent statements, *see FCC v. Pacifica
    Foundation,* 438 U.S. 726, 731 n.2 (1978) ("*Pacifica*") ("there is
    a scarcity of spectrum space, the use of which the government must
    therefore license in the public interest"); *Columbia Broadcasting
    System, Inc. v. Democratic National Committee*, 412 U.S. 94, 101-02
    (1973) ("*CBS v. DNC*") ("Unlike other media, broadcasting is
    subject to an inherent physical limitation. Broadcast frequencies
    are a scarce resource; they must be portioned out among applicants.
    All who possess the financial resources and the desire to
    communicate by television or radio cannot be satisfactorily
    accommodated"); *Banzhaf v. FCC,* 405 F.2d 1082, 1099 (D.C. Cir.
    1968), *cert. denied*, 396 U.S. 842 (1969) ("*Banzhaf*").

[^11]: Section 301 of the Communications Act (47 U.S.C. § 301), like its
    predecessor, forbids *ownership* of "channels of radio
    transmission."

[^12]: *See NBC*, 319 U.S. at 216. *See also Syracuse Peace Council,* 2
    FCC Rcd 5043, 5068 n.201 (1987) ("the fact that government may
    license broadcasters to use frequencies in order to minimize
    interference, and thus to maximize the effective dissemination of
    speech through the electromagnetic spectrum, does not justify
    content regulation"), *affirmed*, *Syracuse Peace Council v. FCC*,
    867 F.2d 654 (D.C. Cir. 1989), *cert. denied*, 493 U.S. 1019 (1990).

    The chosen allocation system could have been first-come-first-served
    (originally called "squatters rights"), lotteries, prices or, as
    Congress and the FCC chose, political-administrative decisions.
    *See* Lee C. Bollinger, [Images of a Free Press]{.smallcaps} at 89
    (Univ. of Chicago Press, Chicago IL, 1994). In addition, some
    spectrum use might be reserved for necessary activities that the
    market would not provide in adequate amount, such as children's
    educational broadcasting, 47 U.S.C. § 394.

[^13]: *See NBC*, 319 U.S. at 216.

[^14]: *See Red Lion*, 395 U.S. at 394.

[^15]: For simplicity, all regulations, whether in the form of rules,
    decisions in individual cases, or guidelines will be referred to by
    the all-encompassing term "regulations." This paper does not address
    explicit statutory obligations, such as ones about children's
    television (47 U.S.C. §§ 303a *et seq.*), facilities for candidates
    for public office (47 U.S.C. § 315), and programming of an
    educational or informational nature (47 U.S.C. § 335(b)(1)).

[^16]: The Scarcity Rationale, even if it is valid, does not allow any
    and all regulation of traditional broadcasters. *See, e.g.,
    Community-Service Broadcasting of Mid-America, Inc. v. FCC*, 593
    F.2d 1102, 1110 n.17 (D.C. Cir. 1978) (en banc) ("Where government
    licensing and regulation is premised on the scarcity of a medium of
    communication, then even noncoercive and seemingly voluntary
    contracts or grants by which government uses that medium to express
    or enforce a point of view must be strictly scrutinized").

[^17]: The First Amendment to the U.S. Constitution provides: The First
    Amendment provides that \"Congress shall make no law . . . abridging
    the freedom of speech, or of the press . . .\" U.[S.
    Const]{.smallcaps}. Amend. I.

[^18]: Traditional broadcasters have substantial First Amendment rights.
    *FCC v. League of Women Voters*, 468 U.S. 364, 378 (1984) ("*League
    of Women Voters*") ("broadcasters are entitled under the First
    Amendment to exercise the widest journalistic freedom consistent
    with their public duties") (quotations and brackets omitted); *CBS
    v. DNC*, 412 U.S. at 110 (1973) ("Congress intended to permit
    private broadcasting to develop with the widest journalistic freedom
    consistent with its public obligations"), 124 (referring to
    broadcasters as "editors"); *Red Lion*, 395 U.S. at 386
    ("broadcasting is clearly a medium affected by a First Amendment
    interest"); *United States v. Paramount Pictures, Inc*., 334 U.S.
    131, 166 (1948) ("We have no doubt that moving pictures, like
    newspapers and radio, are included in the press whose freedom is
    guaranteed by the First Amendment").

    Recently, it has been suggested that the response to any scarcity
    that would be most consistent with the First Amendment would be not
    regulation of few broadcasters, but the allocation of more spectrum
    for broadcasting. Stuart M. Benjamin, *The Logic of Scarcity: Idle
    Spectrum as a First Amendment Violation*, 52 [Duke]{.smallcaps} L.J.
    1 (2002).

[^19]: Entry was also limited by FCC rules that specified the coverage
    areas of individual broadcasters, the separation between their
    licensed frequencies, and many other seemingly technical matters.

[^20]: The Federal Radio Commission spent its first years reducing the
    number of broadcasters by a substantial amount. FRC [First Annual
    Report]{.smallcaps} at 2, 9 (1927) (opining that "at least 400" of
    732 stations would have to be eliminated); FRC [Second Annual
    Report]{.smallcaps} at 16 (1928) (noting that 62 stations were
    "deleted" wholly or partly because of FRC action). The Washington,
    D.C., Evening Star of July 20, 1937, at B-6, lists only four radio
    stations, all AM. The authoritative database of BIA Financial
    Network, Inc., now lists 26 within virtually the same AM frequency
    ranges.

[^21]: Index Expurgatorius was "a catalogue of books from which passages
    marked as against faith or morals must be removed before Catholics
    can read them." Webster's Revised Unabridged Dictionary (1913),
    http://index.prohibitorius. word.sytes. org/ (visited Feb. 2, 2004).

[^22]: Ithiel de Sola Pool, [Technologies of Freedom]{.smallcaps} at
    14-15 (Harvard Univ. Press, Cambridge MA, 1983) ("Pool"). *See also*
    Theodore F.T. Plucknett, [A Concise History of the Common
    Law]{.smallcaps} at 498-500 (Little, Brown & Co., Boston MA, 1956)
    (in Tudor England, "succeeding statutes settled a policy of treating
    printing as an overt act of treason" and in Stuart England, "the
    High Commission . . . took the view that all printing, however
    innocent, was a crime unless the work had been previously
    licensed").

[^23]: Richard D. Brown, *Early American Origins of the Information
    Age*, in Alfred D. Chandler, Jr., & James W. Cortada (Eds.), [A
    Nation Transformed by Information: How Information Has Shaped the
    United States from Colonial Times to the Present]{.smallcaps} at 40
    (Oxford University Press, New York NY, 2000) ("Chandler & Cortada").
    Other histories of governments using licensing powers to suppress
    speech are cited in *Near v. Minnesota*, 283 U.S. 697, 713-18
    (1931). *See also New York Times Co. v. Sullivan*, 376 U.S. 254,
    273-76 (1964) (detailing American discouragement of criminal libel
    actions by government officials against publications critical of
    them).

[^24]: *See, e.g.,* FRC [Second Annual Report]{.smallcaps} at 169 (1928)
    (sending a "word of warning" to "those broadcasting (of which there
    have been all too many) who consume much of the valuable time
    allotted to them under their licenses in matters of a distinctly
    private nature, which are not only uninteresting but also
    distasteful to the listening public"); FRC [Third Annual
    Report]{.smallcaps} at 34 (1929) ("Propaganda stations . . . are not
    consistent with the most beneficial sort of discussion of public
    questions"); Susan J. Douglas, [Inventing American Broadcasting,
    1899-1912]{.smallcaps} at 316 ("the low power stations belonged to .
    . . labor unions") (The Johns Hopkins Univ. Press, Baltimore MD,
    1989); Robert W. McChesney, [Telecommunications, Mass Media, &
    Democracy: the Battle for the Control of U.S. Broadcasting,
    1928-1935]{.smallcaps} *passim* (Oxford Univ. Press, New York NY,
    1993); Pool, *supra* note 21, at 125 ("the New York socialist
    station WEVD was given low power and relegated to a poor position on
    the dial, where it had to share time with eleven other stations.
    WCFL, the Chicago labor station, likewise had low power, so that its
    reception was interfered with by two Westinghouse stations").

[^25]: Fred W. Friendly, [The Good Guys, the Bad Guys & the First
    Amendment: Free Speech vs. Fairness in Broadcasting]{.smallcaps} at
    32-42 (Random House, New York NY, 1977).

[^26]: *Syracuse Peace Council,* 2 FCC Rcd at 5049-50 ¶¶ 42-51, citing
    *General Fairness Doctrine Obligations of Broadcast Licensees*, 102
    F.C.C.2d 143, 169-90 (1985) ¶¶ 42-71. *See also* Thomas W. Hazlett &
    David W. Sosa, *Was the Fairness Doctrine a "Chilling Effect"?
    Evidence from the Postderegulation Radio Market*, 26 [J. Leg.
    Stud.]{.smallcaps} 279, 299 (1997) ("Hazlett & Sosa") ("The evidence
    suggests that the 1987 elimination of the \[Fairness Doctrine\] had
    a pronounced effect on radio station formats ‑‑ in favor of
    informational programming"), 301 ("The data suggest that even in the
    absence of free entry, informational programming increased with the
    lifting of regulatory burdens. This is evidence that the old rules
    indeed provided a disincentive to broadcasting informational
    programs").

    In *Red Lion*, the Supreme Court upheld the Constitutionality of the
    Fairness Doctrine in part because the FCC doubted that the Doctrine
    would suppress traditional broadcasters' discussion of controversial
    public issues. *Red Lion,* 395 U.S. at 393 ("if experience with the
    administration of those doctrines indicates that they have the net
    effect of reducing rather than enhancing the volume and quality of
    coverage, there will be time enough to reconsider the constitutional
    implications"). If the Court had known that the Fairness Doctrine
    would have such an effect, it is likely that the Court could not
    have upheld it.

[^27]: *See, e.g., Mid-American Broadcasting Corp*., 12 F.C.C. 282,
    291-93 (1947) ¶¶ 3-4.

[^28]: *See, e.g., Bamberger Broadcasting Service, Inc.,* 11 F.C.C.
    1242, 1254 (1947) ¶ 3.

[^29]: *See, e.g.*, *Policy Statement on Comparative Broadcast
    Hearings*, 1 F.C.C.2d 393, 395-96 (1965).

[^30]: *See, e.g., Metro Broadcasting, Inc. v. FCC*, 497 U.S. 547
    (1990), *overruled*, *Adarand Constructors, Inc. v. Pena*, 515 U.S.
    200 (1995); *Lamprecht v. FCC*, 958 F.2d 382 (D.C. Cir. 1992). For a
    history of the FCC's consideration of race, ethnicity, and sex in
    its traditional broadcast licensing decisions, see Matthew L.
    Spitzer, *Justifying Minority Preferences in Broadcasting*, 64 S.
    [Cal. L. Rev]{.smallcaps}. 293, 297-304 (1991).

[^31]: 47 C.F.R. § 73.3555.

[^32]: *Amendment of Sections 73.34, 73.240, & 73.636 of the
    Commission's Rules Relating to Multiple Ownership of Standard, FM, &
    Television Broadcast Stations*, 50 F.C.C.2d 1046 (1975).

[^33]: Glen O. Robinson, *The FCC & the First Amendment: Observations on
    40 Years of Radio & Television Regulation*, 52 [Minn. L.
    Rev]{.smallcaps}. 67, 119 (1967).

[^34]: *See, e.g.*, *Children\'s Television Report & Policy Statement*,
    50 F.C.C.2d 1 (1974) (effectively requiring certain kinds of
    programming for children), *affirmed, Action for Children\'s
    Television v. FCC*, 564 F.2d 458 (D.C. Cir. 1977).

[^35]: Examples are programs required by the now defunct Fairness
    Doctrine, *infra* note 41 & accompanying text, and "entertainment
    programming inappropriate for viewing by a general family audience"
    during the Family Viewing Hour , *see Writers Guild of America,
    West, Inc. v. ABC*, 609 F.2d 355, 358 n.2 (9^th^ Cir. 1979), *cert.
    denied*, 449 U.S. 824 (1980).

[^36]: *Miami Herald Pub. Co. v. Tornillo*, 418 U.S. 241 (1974)
    (invalidating, on First Amendment grounds, Florida statute requiring
    newspapers to publish without cost the reply of candidates whose
    integrity they criticize); *New York Times Co. v. Sullivan*, 376
    U.S. 254 (1964) (invalidating, on First Amendment grounds, libel
    award for public official against critics of his official conduct);
    *Near v. Minnesota*, 283 U.S. 697 (1931) (invalidating, on First
    Amendment grounds, state statute that allowed enjoining a newspaper
    from publishing malicious, scandalous, or defamatory material). For
    decisions invalidating law forcing persons to make statements they
    do not wish to make, *see Wooley v. Maynard*, 430 U.S. 705 (1977)
    (invalidating, on First Amendment grounds, state statute requiring
    motor vehicle license plates to be embossed with state motto \"Live
    Free or Die\"); *Talley v. California*, 362 U.S. 60 (1960)
    (invalidating, on First Amendment grounds, city ordinance requiring
    disclosure of the author of handbills); *West Virginia State Board
    of Education v. Barnette*, 319 U.S. 624 (1943) (invalidating, on
    First Amendment grounds, public school requirement that students
    salute the American flag).

    A prohibition to a traditional broadcaster to broadcast a program
    would seem, at least, to go against the grain of Section 326 of the
    Communications Act of 1934, as amended, 47 U.S.C. § 326, which
    provides that "Nothing in this chapter shall be understood or
    construed to give the Commission the power of censorship over the
    radio communications or signals transmitted by any radio station,
    and no regulation or condition shall be promulgated or fixed by the
    Commission which shall interfere with the right of free speech by
    means of radio communication." This statute did not save a
    \'propaganda\' broadcaster when, in the 1930s, his license was
    denied renewal by the FRC in part because of his \'propaganda.\'
    *KFKB Broadcasting Ass'n, Inc., v. FRC,* 47 F.2d 670, 672 (D.C. Cir.
    1931). Perhaps, however, the statute extended only as far as
    then-prevailing free speech law, which generally protected speakers
    only against prior restraint. If so, perhaps this statute is ripe
    for broadening to be consistent with today\'s free speech law, which
    protects speakers against far more. *See, e.g.,* cases cited *supra*
    note 22 & this note & *infra* note 45.

[^37]: *United States v. Playboy Entertainment Group, Inc.,* 529 U.S.
    803 (2000) (invalidating, on First Amendment grounds, federal
    statute putting unnecessarily restrictive regulation on sexually
    explicit cable TV shows).

[^38]: A print media outlet could, to comply with such regulations,
    print another page. A traditional broadcaster cannot broadcast 25
    hours a day or prolong prime time by one hour, however.

[^39]: *See, e.g.*, *En Banc Programming Inquiry*, 44 F.C.C. 2303, 2314
    (1960) ("The major elements usually necessary to meet the public
    interest, needs and desires of the community in which the station is
    located, . . . have included: (1) opportunity for local
    self-expression, (2) the development and use of local talent, (3)
    programs for children, (4) religious programs, (5) educational
    programs, (6) public affairs programs, (7) editorialization by
    licensees, (8) political broadcasts, (9) agricultural programs,
    (1\[0\]) news programs, (11) weather and market reports, (12) sports
    programs, (13) service to minority groups, \[and\] (14)
    entertainment programs").

[^40]: *See, e.g.*, *KCMC, Inc.*, 19 F.C.C.2d 109 (1969).

[^41]: *See, e.g.*, *Leflore Broadcasting Co.,* 65 F.C.C.2d 556 (1977),
    *affirmed*, *Leflore Broadcasting Co. v. FCC*, 636 F.2d 454 (D.C.
    Cir. 1980).

[^42]: *Red Lion*, 395 U.S. at 377. The *Red Lion* Court stated that the
    FCC may "requir\[e\] a licensee to share his frequency with others
    and to conduct himself as a proxy or fiduciary with obligations to
    present those views and voices which are representative of his
    community and which would otherwise, by necessity, be barred from
    the airwaves." 395 U.S. at 389.

[^43]: *Cowles Florida Broadcasting, Inc*., 60 F.C.C.2d 371, 420 (1976)
    ¶ 147, *reversed on other grounds, Central Florida Enterprises, Inc.
    v. FCC*, 598 F.2d 37 (D.C. Cir. 1978), *cert. dismissed*, 441 U.S.
    957 (1979).

[^44]: *See, e.g.*, *Petition for Rulemaking to Require Broadcast
    Licensees to Show Nondiscrimination in Their Employment Practices*,
    23 F.C.C.2d 430 (1970).

[^45]: *See, e.g.*, *Review of the Prime Time Access Rule, § 73.658 (k)
    of the Commission's Rules*, 11 FCC Rcd 546 (1995).

[^46]: *See, e.g., City of Lakewood v. Plain Dealer Pub. Co.,* 486 U.S.
    750 (1988) (invalidating, on First Amendment grounds, city ordinance
    that gave Mayor unlimited discretion in granting and denying permits
    to place newsracks on public property); *Arkansas Writers' Project,
    Inc. v. Ragland*, 481 U.S. 221 (1987) (invalidating, on First
    Amendment grounds, state sales tax on some, but not all, newspapers
    and magazines); *Minneapolis Star & Tribune Co. v. Minnesota
    Commissioner of Revenue*, 460 U.S. 575 (1983) (invalidating, on
    First Amendment grounds, state tax on ink and paper used in
    publishing certain newspapers).

[^47]: *League of Women Voters*, 468 U.S. at 376 n.11.

[^48]: *General Fairness Doctrine Obligations of Broadcast Licensees*,
    102 F.C.C.2d 145, 196-221 (1985) ¶¶ 81-131; *Syracuse Peace
    Council,* 2 FCC Rcd at 5053-55 ¶¶ 66-82 (in ¶ 74, "we no longer
    believe that there is scarcity in the number of broadcast outlets
    available to the public").

[^49]: *See Radio-Television News Directors Ass'n v. FCC*, 184 F.3d 872
    (D.C. Cir. 1999), 229 F.3d 269 (D.C. Cir. 2000).

[^50]: Jim Sinclair, [How Radio Signals Work: All the Basics Plus Where
    to Find Out More]{.smallcaps} at 2 (McGraw-Hill, New York NY, 1997)
    (italics in original).

[^51]: John R. Pierce & Michael Noll, [Signals: The Science of
    Telecommunications]{.smallcaps} at 118 (Scientific American Library,
    New York NY, 1990).

[^52]: Glen O. Robinson, *The Electronic First Amendment: An Essay for
    the New* Age, 47 [Duke L.J]{.smallcaps}. 899, 912 (1998) ("*New
    Age*").

[^53]: *See supra* page 2.

[^54]: *New Age, supra* note 51, 47 [Duke]{.smallcaps} L.J. at 912 n.50
    ("if the radio spectrum can be described as public property, then
    public ownership would equally extend to telephone and cable
    television transmissions which, of course, use the same radio
    spectrum as broadcasters even though they transmit over shielded
    conduit rather than in open air. I know of no one who argues that
    public ownership extends to telephonic or cable transmissions,
    however").

[^55]: *NBC*, 319 U.S. at 213; *Red Lion,* 395 U.S. at 388. As the above
    discussion of "Physics" shows, it would be more accurate to say
    that, given the technology in use at any time, there is a maximum
    amount of use of the spectrum (movement of electrons) that can occur
    without interference that will make intelligible communication
    impossible.

[^56]: In *Telecommunications Research & Action Center v. FCC*, 801 F.2d
    501, 508 & n.3 (D.C. Cir. 1986), *cert. denied,* 482 U.S. 919 (1987)
    ("*TRAC*"), the Court of Appeals for the District of Columbia
    Circuit echoed the observation of Nobel laureate Professor Ronald
    Coase that

    > 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.

    Ronald H. Coase, *The Federal Communications Commission,* 2 [J.L. &
    Econ]{.smallcaps}. 1, 14 (1959).

[^57]: Rather, the United States has a generally free market in land,
    subject only to government ownership of some land, regulatory
    systems such as zoning and eminent domain, and common law actions
    such as trespass and nuisance.

[^58]: Throughout the colonial era and well after the adoption of the
    First Amendment, there were very few newspapers, and during the
    American Revolution there was a "paper famine." During and after
    World War II, newsprint was rationed and this seems to have forced
    some publications to curtail or cease operation. Government did not,
    however, require the surviving publications to grant access to
    writers who were thus silenced or engage in other content-based
    regulation of the print media. *Syracuse Peace Council*, 2 FCC Rcd
    at 5068 n.202; *Supplies for a Free Press: Hearings Before the
    Subcomm. on Newsprint of the Senate Select Comm. on Small Business*,
    82d Cong., 1st Sess. (1951); Edwin Emery & Michael Emery, [The Press
    & America: An Interpretive History of the Mass Media]{.smallcaps} at
    83 (Prentice-Hall, Inc., Englewood Cliffs NJ, 1984); Morris L.
    Ernst, [The First Freedom]{.smallcaps} at Exhs. A, I (Macmillan Co.,
    New York NY, 1946); Alfred McClung Lee, I [The Daily Newspaper in
    America: The Evolution of a Social Instrument]{.smallcaps} at 15-24
    (Routledge/Thoemmes Press, London UK, 2000).

[^59]: Spectrum Policy Task Force[, Report]{.smallcaps} ("Spectrum Task
    Force Report") at 10 (Nov. 2002), available at
    http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-228542A1.pdf.
    ("preliminary measurements indicate that, while some bands are
    heavily used . . . many other bands are not in use or are only used
    part of the time"). *See also* J.H. Snider & Max Vilimpoc,
    *Reclaiming the 'Vast Wasteland': Unlicensed Sharing of Broadcast
    Spectrum*, New America Foundation Spectrum Policy Program, Spectrum
    Series Issue Brief #12 at 2 (on average, 90% of television broadcast
    spectrum is unused today, either because it is "guard band" to
    prevent interference or because it is unassigned),
    http://www.newamerica.net/index.cfm?pg=article &DocID=1286 (visited
    July 2, 2004).

[^60]: Richard A. Posner, [Public Intellectuals: A Study in
    Decline]{.smallcaps} ("Posner") at 133 (Harvard Univ. Press,
    Cambridge MA, 2001) (\"natural resources are not in infinite supply,
    but this is irrelevant, since demand is not infinite").

[^61]: Spectrum Task Force Report, *supra* note 58, at 40, 46-56.

[^62]: *See* Digital Television (DTV), http://www.fcc.gov/dtv/ (visited
    Feb. 3, 2004).

[^63]: *See* Press Release, *FCC Selects Digital Radio Technology* (Oct.
    10, 2002), http://hraunfoss.fcc.gov/
    edocs_public/attachmatch/DOC-227261A1.pdf (visited Nov. 7, 2003).

[^64]: Technorati, *What's happening on the Web right now?*,
    htpp://www.technorati.com (visited March 11, 2005).

[^65]: *See, e.g., WiMax May Pose Fresh Challenge to Broadband*,
    [Reuters/ExtremeTech.com]{.smallcaps} (Feb. 28, 2005), available at
    2005 WLNR 3195092.

[^66]: For example, the channels for VHF TV could have accommodated six
    or seven TV channels with nationwide coverage areas. The FCC,
    however, decided that local coverage was a paramount national goal
    and so adopted a channel assignment plan that gave most communities
    fewer channels. *Amendment of § 3.606 of the Commission's Rules &
    Regulations*, 41 F.C.C. 148, 169 (1952) ¶ 68; Roger G. Noll, Merton
    J. Peck, & John J. McGowan, [Economic Aspects of Television
    Regulation]{.smallcaps} at 100-01, 116-20 (The Brookings
    Institution, Washington DC, 1973); Bruce M. Owen, Jack H. Beebe, &
    Willard G. Manning, Jr., [Television Economics]{.smallcaps} at
    123-24 (Lexington Books, Lexington MA, 1979) ("Owen *et al")*.

[^67]: Since the 1990s, the FCC has granted many licenses by auction.
    The FCC thus joined the other parts of the government that have for
    decades auctioned (and otherwise sold for money) rights to consume
    government-controlled resources such as land and the timber,
    petroleum, and minerals on that land.

[^68]: In the United States, the only stage at which traditional
    broadcast licenses were given away for free was when the FCC issued
    them to the initial licensees. (Second licenses for Digital TV are
    temporary.) Almost all who received free licenses from the
    government later sold them, often for large sums of money. The
    overwhelming majority of licenses for traditional broadcasting are
    held today by persons who paid a market price for them. *Syracuse
    Peace Council*, 2 FCC Rcd at 5055 ¶ 79; *The Lott Resignation & Its
    Consequences*[, Telecommun. Pol. Rev.]{.smallcaps}, at 2 n.1 (Dec.
    23, 2002). In the secondary market for licenses, as in most of the
    U.S. economy, the price mechanism operates.

[^69]: This fact struck one court as early as 1986:

    > Broadcast frequencies are much less scarce now than when the
    > scarcity rationale first arose in \[*NBC*\], and it appears that
    > currently 'the number of broadcast stations . . . rivals and
    > perhaps surpasses the number of newspapers and magazines in which
    > political messages may effectively be carried.' *Loveday v. FCC,*
    > 707 F.2d 1443, 1459 (D.C. Cir.), *cert. denied,* 464 U.S. 1008 . .
    > . (1983). Indeed, many markets have a far greater number of
    > broadcasting stations than newspapers.

    *TRAC*, 801 F.2d at 508 n.4 (first ellipsis in original). *See also
    Banzhaf,* 405 F.2d at 1100 ("It may well be that some venerable FCC
    policies cannot withstand constitutional scrutiny in the light of .
    . . the modern proliferation of broadcasting outlets").

[^70]: *Compare Broadcast Station Totals as of December 31, 2004*, News
    Release dated Feb. 10, 2005, http://hraunfoss.fcc.gov/edocs_public/
    attachmatch/DOC-256657A1.pdf (visited March 11, 2005) ("2005 News
    Release") *with Broadcast Station Totals for January 1969*, News
    Release dated Feb. 20, 1969, http://www.fcc.gov/
    mb/audio/totals/pdf/19690131.pdf (visited March 11, 2005).

[^71]: Scott Roberts, Jane Frenette & Dionne Stearns, *A Comparison of
    Media Outlets & Owners for Ten Selected Markets (1960, 1980, 2000*),
    Table 3, Media Bureau Staff Research Paper #1, Media Ownership
    Working Group (Sept. 2002) ("*MOWG Paper #1*").

[^72]: These are the Kansas City Star and the Kansas City Kansan.
    StartSpot Network, *Kansas City News*,
    http://www.headlinespot.com/local/kansascity.htm (visited Feb. 2,
    2004).

[^73]: PBS, *PBS Digital Programming*,
    http://www.pbs.org/digitaltv/multiNS.html (visited March 11, 2005).

[^74]: Sirius Satellite Radio, *Channel Guide*,
    http://www.sirius.com/pdf/channelguide.pdf (visited March 11, 2005);
    XM Satellite Radio, *Full Channel Listing,*
    http://www.xmradio.com/programming/full\_
    channel_listing.jsp?sort=number (visited March 11, 2005).

[^75]: *See, e.g.*, *WRAL Gets on the (Cell) Phone*, TV Technology,
    http://www.tvtechnology.com/dailynews /one.php?id=2613 (visited Dec.
    23, 2004); *Digital/Technology Notes*, [Public Broadcasting
    Rep]{.smallcaps}. (Oct. 29, 2004) ("Digital TV-equipped cellphones
    will probably enter the U.S. market by 2007, Texas Instruments CEO
    Richard Templeton told analysts"), available at 2004 WL 64312863;
    Yuki Noguchi, *Cell Phone Industry Embraces Content*, Technology &
    Science, washingtonpost.com Highlights, MSNBC, http://www.msnbc.
    msn.com/id/4582621/ (\"For the business crowd, it\'s a chance to
    watch CNBC\") (visited March 23, 2004); *Cable*, [Commun.
    Daily]{.smallcaps} (Mar. 25, 2003) (Weather Channel announces it
    will use mobile phones and e-mail to notify subscribers of
    approaching storms), available at 2003 WL 5754442.

[^76]: Posner, *supra* note 59, at 133 (\"substitutes exist or can be
    devised for virtually any resource").

[^77]: In 1959, the Commission estimated that there were 500,000
    subscribers to cable TV nationwide and that few cable TV systems had
    more than 7 channels. *The Impact of Community Antenna Systems, TV
    Translators, TV "Satellite" Stations, & TV "Repeaters" on the
    Orderly Development of Television Broadcasting*, 26 F.C.C. 403,
    407-08 (1959) ¶¶ 10-11. In 1980, the Kansas City market had cable TV
    and the cable systems had an average capacity of 22 channels. In
    2000, those systems had an average capacity of 42 channels. *MOWG
    Paper #1, supra* note 70, at Table 4. Today, cable systems often
    carry hundreds of channels. *General Motors Corp. & Hughes
    Electronics Corp.*, 19 FCC Rcd 473, 502 (2004) ¶ 55. *See also*
    *Annual Assessment of the Status of Competition in the Market for
    the Delivery of Video Programming*, Eleventh Annual Report
    ("*Eleventh* *Cable Competition Report*"), FCC 05-13, MB Docket No.
    04-227 at 25 ¶ 37 (released Feb. 4, 2005) (cable operators offer a
    "digital tier" of service that can fit from 6 to 12 video channels
    into the capacity previously used to provide just 1 standard
    channel).

[^78]: *See, e.g.,* *Akimbo Working With \[Consumer Electronic\]
    Manufacturers on Internet-Based TV Service*[, Commun.
    Daily]{.smallcaps} at 2 (Oct. 25, 2004) (describing a service,
    http://www.akimbo.com/, that hopes to make CNN available via
    Internet to PCs, PVRs, DVDs, and other consumer electronics
    receivers).

[^79]: *Fahrenheit 9/11*, Internet Movie Database,
    http://www.imdb.com/title/tt0361596/ (visited Oct. 19, 2004).

[^80]: Cable and DBS systems serve 89 million homes, 73% of American
    adults are now online, and more Internet connections are broadband
    than narrowband. *Eleventh Annual Cable Competition Report, supra*
    note 76, at 115; Harris Interactive,  *More Than Four in Ten
    Internet Users Now Have Broadband \-- Doubled in Two Years,*
    http://www.harrisinteractive.com/harris\_\_poll.index\_\_asp?PID=492
    (visited Sept. 13, 2004) (number of American adults using broadband
    at home almost doubled in the last two years, according to research
    by Harris Interactive; although users are still disproportionately
    young and well off, the trend is towards users mirroring the total
    population of the US); Nielsen//NetRatings, *U.S. Broadband
    Connections Reach Critical Mass, Crossing 50 Percent Mark for Web
    Surfers, According to Nielsen//NetRatings*,
    http://www.nielsen-netratings.com/pr/pr_040818.pdf (visited March
    11, 2005).

[^81]: *XM Snares Major League Baseball for Multi-year Satellite Deal*,
    [Commun. Daily]{.smallcaps} at 8 (Oct. 21, 2004); Seth Sutel,
    *Source: XM Satellite Radio Signs Deal With Baseball*, Yahoo!Finance
    (Oct. 19, 2004), http://biz.yahoo.com/ap
    /041019/baseball_satellite_radio_2.html (visited Oct. 20, 2004);
    Frank Ahrens, *Stern's Move to Satellite Radio Is a Signal Event*,
    [Wash. Post]{.smallcaps} at E-1 (Oct. 8, 2004); *Howard Stern &
    SIRIUS Announce the Most Important Deal in Radio History*, Yahoo!
    Finance, http://biz.yahoo.com/prnews/041006/nyw109_1.html (visited
    Oct. 6, 2004).

[^82]: Some of this "entertainment" contains information on public
    affairs, such as the Free Tibet and Farm Aid concerts on MTV and
    VH-1. World Tibet Network News, *Musicians rally for Tibet's Freedom
    (June 11, 1999)*, http://www.tibet.ca/wtnarchive/1999/6/11_1.html
    (visited Apr. 24, 2003); VH1.Com, *Review: Farm Aid Raises Money &
    More* (Sept. 18, 2000),
    http://www.vh1.com/artists/news/1124203/09182000/nelson\_
    willie.jhtml (visited Apr. 24, 2003).

[^83]: It seems that additional channels, by reducing the number of
    persons who listen to any one channel, make it socially permissible
    to broadcast content that was too controversial in the previous
    world of fewer channels. For example, when TV was added to radio and
    the mass audience migrated from radio to TV, it became possible for
    the first time for radio stations to discuss previously taboo
    subjects such as sexually transmitted diseases. Erik Barnouw, [The
    Golden Web: A History of Broadcasting in the United States, Vol.
    II - 1933-]{.smallcaps}1953 at 288-89 (Oxford University Press, New
    York NY, 1968). The mass audience's move from radio also enabled the
    creation of entirely new content, rock'n'roll, on the newly shunned
    medium. Bravo Profiles, *Rock & Roll Invaders: The Story of AM
    Radio* (Bravo! Channel television broadcast, Apr. 16, 1998, and
    Sept. 18, 2002). Finally, when FM channels, with their better
    quality transmission of music, gained precedence over AM in the
    1980s and 1990s, AM again saw the flowering of talk radio.

[^84]: William F. Baker & George Dessart, [Down the Tube: An Inside
    Account of the Failure of American Television]{.smallcaps} at 216-33
    (Basic Books, New York NY, 1998); Erik Barnouw, [The Image Empire: A
    History of Broadcasting in the United States, Vol. III - from
    1953]{.smallcaps} at 70-73 (Oxford Univ. Press, New York NY, 1970);
    Owen *et al.*, *supra* note 65, at 155-56.

[^85]: Public broadcasting's programs that concentrate on information,
    news and opinion include Frontline, The News Hour with Jim Lehrer,
    NOW (formerly with Bill Moyers), and Washington Week. PBS, *Programs
    A-Z*, http://www.pbs.org/ (visited Feb. 3, 2004).

[^86]: National Public Radio's programs that concentrate on information,
    news and opinion include All Things Considered, The Diane Rehm Show,
    Fresh Air® with Terry Gross, Morning Edition®, Talk of the Nation,
    and Wait Wait . . . Don't Tell Me! NPR, *NPR Programs*,
    http://www.npr.org/about/programs/ allnprprograms.html (visited Feb.
    3, 2004).

[^87]: Hazlett & Sosa, *supra* note 25, at 295 ("The share of
    informational programming on FM increases from 4.64 percent in 1975
    to 7.39 percent in 1995. The more dramatic increase is in the AM
    band, where the share of informational programming goes from 4.29
    percent to 27.60 percent. Particularly impressive is the increase in
    AM informational share from 7.11 percent in 1987 to 27.60 percent in
    1995").

[^88]: The better known cable and satellite channels that concentrate on
    information, news and opinion are CNN, Headline News, CNNfn, CNBC,
    MSNBC, Fox News, and C-SPAN I-III. CNN and C-SPAN are also broadcast
    on some radio stations. In the recently concluded Presidential
    campaign, the mainstream media at first ignored the Swift Boat
    Veterans until blogs, Fox News, and other cable news channels
    covered them. Ultimately, the group\'s accusations became important
    in the campaign. MSNBC News, *The Vets Attack (*Nov. 15, 2004)*,*
    http://www.msnbc.msn.com/id/6420967/site/newsweek/ (visited Nov. 7,
    2004).

[^89]: The regular guests on radio and cable TV political talk shows
    range from Katrina vanden Heuvel, Editor of The Nation Magazine, to
    Terry Jeffries, Editor of Human Events. *See also* Air America
    Radio, http://www.airamericaradio.com/pub/globalDefault.htm (visited
    July 2, 2004); Deep Dish T.V. Network,
    http://www.deepdishtv.org/pages/aboutus.htm (visited July 2, 2004);
    Freespeech TV: What Democracy Looks Like,
    http://www.freespeech.org/fsitv/fscm2/genx.php?name=home (visited
    July 2, 2004); Sharon Theimer, *Seeking Louder Voice, Gun Lobby
    Shops for News Outlet*, [Philadelphia Inquirer]{.smallcaps} at A-9
    (Dec. 9, 2003) (National Rifle Association planning to buy a
    traditional broadcast station).

[^90]: ^?^ Best known among these are the cable TV network Black
    Entertainment Television, http://www.bet.com (visited Dec. 22,
    2004). BET has several channels, including one for jazz and another
    for gospel, and is popular enough to make its founder the United
    States' first African-American billionaire. *See Eleventh Cable
    Competition Report*, *supra* note 76, at 123 (Table C-2); Steve
    Raabe, *Forbes' Tally of Billionaires Sheds Wealth; Coloradans on
    List Trimmed to Six,* [Denver Post]{.smallcaps} at C-01 (Feb. 28,
    2003). Comcast and Radio One have launched a news, entertainment,
    sports and talk TV network geared toward African-Americans. Megan
    Larson, *TV One Taps Tom Joyner: New Black Network Launches Today
    with Run of Radio Show*, [Adweek Mag. Newswire]{.smallcaps} (Jan.
    19, 2004), available at 2004 WL 65139470.

    Comcast has launched a comparable Spanish-language channel, Cable
    Latino. DARS provider Sirius has OutQ, a channel geared towards gay
    persons. In 2003, a channel aimed at American Muslims began
    broadcasting. Andrea Figler, *ICN Adds a Channel, But Gets
    Squeezed*, [Cable World]{.smallcaps} at 4 (Nov. 27, 2003), available
    at 2003 WL 7582811; *Cable*, C[ommun. Daily]{.smallcaps} at 10 (Feb.
    19, 2004); *Build Programming, Listeners Will Come*, [Satellite
    News]{.smallcaps} (Sept. 22, 2003), available at 2003 WL 7817115;
    *First U.S. Muslim TV Channel Hits Airwaves*, Local6.com,
    http://www.local6.com/news/3963483/detail.html (Dec. 1, 2004)
    (visited Dec. 6, 2004). *See also* Thomas Hazlett, *Digitizing
    "Must-Carry" under Turner Broadcasting v. FCC (1997)*, 8 [Sup. Ct.
    Econ. Rev.]{.smallcaps} 141, 190-93 (Tables 8 & 9) (2000) (listing
    more such channels). In old media, the circulation and advertising
    revenues of Spanish-language newspapers are rising sharply even as
    English-language circulation declines. *The State of the News Media
    2004*, *Overview - Economics* & *Audience*, Journalism.org,
    http://www
    .stateofthenewsmedia.org/narrative_overview_economics.asp?media=1&-overview_audience.
    asp?media=1 (visited March 16, 2004).

[^91]: *See* http://www.andrewsullivan.com/ (visited April 7, 2003).

[^92]: *See* http://www.dailykos.com/ (visited Apr. 9, 2004).

[^93]: *See* http://slate.msn.com/id/2080972/ (visited April 7, 2003).

[^94]: Concerning the revolutionary potential of blogs, see
    *Transparency & the news: Notes from Aspen*, BuzzMachine by Jeff
    Jarvis (July 19, 2004),
    http://www.buzzmachine.com/archives/2004_07_19. html#007533 (visited
    July 20, 2004); *Blogging Andrew Sullivan*, BuzzMachine by Jeff
    Jarvis, Nov. 15, 2003, http://www.buzzmachine.
    com/archives/2003_11_15.html (visited July 20, 2004). Professor
    Frederick Turner of the University of Texas at Dallas described the
    activities of blogs in the recent 60 Minutes controversy (*see
    infra* note 128) as

    > an extraordinary example of what chaos and complexity theorists
    > call spontaneous self-organization. Out of a highly communicative
    > but apparently chaotic medium an ordered, sensitively responsive,
    > but robust order emerges, acting as an organism of its own.
    > Suddenly a perfectly-matched team of specialists had
    > self-assembled out of the ether. . . . \[T\]housands of minds
    > could act as neurons in a sort of super-intelligence \-- an
    > intelligence with not merely cognitive, but moral characteristics.

    Frederick Turner, *The Bogosphere & the Pajamaheddin,* Tech Central
    Station (Sept. 21, 2004),
    http://www.techcentralstation.com/092104G.html (visited Oct. 21,
    2004). Professor Glenn Harlan Reynolds of the College of Law of the
    University of Tennessee stated about the 60 Minutes controversy that

    > With the documents on the internet, tens of thousands of people,
    > with expertise in everything from computer typesetting to early
    > 1970s military jargon were able to look at the memos, form their
    > own opinions and communicate them widely. CBS had a staff of
    > (perhaps) dozens working on these documents . . . for a few weeks.
    > After the broadcast, however, tens of thousands of people were
    > looking at the documents, bringing far more man-hours . . . to
    > bear.

    Glenn Harlan Reynolds, *Media dinosaurs, your game is up*, The
    Australian, http://www.
    theaustralian.news.com.au/common/story_page/0,5744,10859477%5E7583,00
    (visited Sept. 23, 2004).

[^95]: Matt Drudge is the epitome of the ease of entry into, and the
    possibilities of growth on, new media. Despite being \"low tech\"
    \-- mostly black ink on white paper \-- it now receives between 200
    and 300 million "hits" a month. Mr. Drudge's previous job was at a
    cash register in a gift shop. *See* http://www.drudgereport.com/
    (visited Dec. 22, 2004); VikingPhoenix.com, *Biography: Matt
    Drudge*, http://vikingphoenix. com/public/rongstad/
    bio-0002/MattDrudge.htm (visited Apr. 7, 2003).

[^96]: *See, e.g.*, The Washington Post,
    http://www.washingtonpost.com/(visited Feb. 3, 2004).

[^97]: *See, e.g.,* Newsweek, http://msnbc.msn.com/id/3032542/(visited
    Feb. 3, 2004).

[^98]: These include pre-Internet radio stations such as WBUR-FM,
    http://www.wbur.org/ (visited Feb. 3, 2004), and stations that
    broadcast only on the Internet, such as PoCreations Radio,
    http://www.pocreations. com/ (visited Feb. 3, 2004).

[^99]: *See, e.g.,* MSNBC News, http://www.msnbc.msn.com/id/3096434/
    (visited Feb. 3, 2004).

[^100]: *See, e.g.*, Michael Hardt & Antonio Negri, [Empire]{.smallcaps}
    at 299 (Harvard Univ. Press, Cambridge MA, 2000) (\"The Internet . .
    . is the prime example of this democratic \[horizontal and
    deterritorialized\] network structure"); *see also* Todd Gitlin,
    *The Great Media Breakdown*, [Mother Jones]{.smallcaps} at 57, 58
    (Nov./Dec. 2004) ("In a digital world, there's easier access to
    multiple sources of facts and analysis than ever before"). Earlier,
    the same populist welcome was given to channel-rich cable TV and DBS
    service. Edward S. Herman & Noam Chomsky, [Manufacturing Consent:
    The Political Economy of the Mass Media]{.smallcaps} at 307
    (Pantheon Books, New York NY, 1988):

    > The rise of cable and satellite communications, while initially
    > captured and dominated by commercial interests, has weakened the
    > power of the network oligopoly and retains a potential for
    > enhanced local-group access. There are already some 3,000
    > public-access channels in use in the United States, offering
    > 20,000 hours of locally produced programs per week, and there are
    > even national producers and distributors of programs for access
    > channels . . . Grass-roots and public-interest organizations need
    > to recognize and try to avail themselves of these media (and
    > organizational) opportunities.

    Internet bulletin boards and chat rooms, for example, also allow
    geographically dispersed persons with rare diseases to communicate
    with each other about their symptoms, progress, and daily
    impressions. *See, e.g.*, Castleman's Dialogue,
    http://www.castlemans.org/dialogue_toc.htm (visited Feb. 3, 2004).

[^101]: Steve LeBlanc, *Cahill Admits Underestimating Ads' Impact*,
    Excite News, http://apnews.excite. com/article/20041216/
    D870HQ4G1.html (visited Dec. 17, 2004) (campaign managers for Sen.
    Kerry and President Bush "agreed that the Internet and other
    emerging news technologies have transformed the political process by
    making it more democratic and encouraging more people to become
    involved").

[^102]: *See, e.g.*, Gnutella.com, http://www.gnutella.com/ (visited
    Dec. 5, 2004). A new file-sharing program, BitTorrent, has the
    capacity to allow the quick downloading of television shows. Clive
    Thompson, *The BitTorent Effect*, [Wired Magazine]{.smallcaps} (Jan.
    2005), available at http://www.wired.com/wired/archive
    /13.01/bittorrent.html (visited Jan. 3, 2005).

[^103]: *See, e.g.*, Newspaper Association of America, *Number of U.S.
    Daily Newspapers*, http://www.naa.org/
    info/facts04/dailynewspapers.html (visited Dec. 22, 2004).

[^104]: In 2003, there were approximately 1,460 daily newspapers
    published in the United States, *see supra* note 102. There are
    approximately ten times that number of traditional broadcast
    stations, not to mention channels of cable TV and DBS service. *See,
    e.g.,* 2005 News Release, *supra* note 69.

[^105]: *See supra* note 68. The same might be said of cable systems, of
    which there is only one in most communities, and DBS systems and
    major political parties, of which there are only two. I do not
    suggest traditional broadcast regulation for any of these media.
    Such regulation would need to overcome major First Amendment
    objections, *see supra* note 35.

[^106]: *See, e.g.,* *The Fairness Doctrine & Other Issues*, [Report of
    the Special Subcommittee on Interstate & Foreign Commerce, House of
    Representatives]{.smallcaps} at 1 (May 9, 1969), quoted in
    *Brandywine-Main Line Radio, Inc. v. FCC*, 473 F.2d 16, 67 (D.C.
    Cir. 1972) (Bazelon, C.J., dissenting), *cert. denied*, 412 U.S. 922
    (1973); Ralph Nader, *In an Honest Debate*, in Robert W. McChesney &
    John Nichols, [Our Media, Not Theirs: The Democratic Struggle
    Against Corporate Media]{.smallcaps} at 12 (Seven Stories Press, New
    York NY, 2002) (alleging "the fact that the people, not the
    multinational communications corporations, own the airwaves").

[^107]: 47 U.S.C. § 301 states that Title III's purposes are "to
    maintain the control of the United States over all the channels of
    radio transmission; and to provide for the use of such channels, but
    not the ownership thereof, by persons for limited periods of time,
    under licenses granted by Federal authority, . . ."

[^108]: *See, e.g.*, *Hannegan v. Esquire, Inc.,* 327 U.S. 146 (1946).
    *See also* Llewellyn White, [The American Radio: A Report on the
    Broadcasting Industry in the United States from The Commission on
    Freedom of the Press]{.smallcaps} at 199 (Univ. of Chicago Press,
    Chicago IL, 1948) ("Beyond a minimal concern for obscenity and
    profanity . . . , the Post Office Department does not concern itself
    with the contents of the books, magazines, and newspapers which the
    taxpayers help to deliver. Why should the broadcasters' reliance on
    a publicly owned circulation medium place them in a different
    category?").

[^109]: *See* *TRAC*, 801 F.2d at 509:

    > A publisher can deliver his newspapers only because government
    > provides streets and regulates traffic on the streets by
    > allocating rights of way. Yet no one would contend that the
    > necessity for these governmental functions, which are certainly
    > analogous to the government\'s function in allocating broadcast
    > frequencies, could justify regulation of the content of a
    > newspaper to ensure that it serves the needs of the citizens.

    *See also* authorities cited *supra* notes 45, 53.

[^110]: *See, e.g., Thomas v. Chicago Park District*, 534 U.S. 316,
    322-24 (2002); *Clark v. Community for Creative Non-Violence*, 468
    U.S. 288 (1984); *Marsh v. Alabama*, 326 U.S. 501 (1946).

[^111]: *Red Lion*, 395 U.S. at 386 n.15.

[^112]: *Id.* at 392.

[^113]: *Id*. at 400.

[^114]: *Office of Communication of the United Church of Christ v. FCC*,
    425 F.2d 543, 548 (D.C. Cir. 1969).

[^115]: *CBS v. DNC*, 412 U.S. at 127-28. The Court quoted with approval
    Secretary of Commerce Hoover's statement in 1924 that "the radio
    listener does not have the same option that the reader of
    publications has ‑‑ to ignore advertising in which he is not
    interested . . ." *Id.* at 128.

[^116]: *Id.,* 412 U.S. at 128, quoting *Banzhaf,* 405 F.2d at 1100-01.

[^117]: *CBS v. DNC*, 412 U.S. at 152 n.3, quoting Louis L. Jaffe, *The
    Editorial Responsibility of the Broadcaster: Reflections on Fairness
    & Access*, 85 [Harv. L. Rev]{.smallcaps}. 768, 786-87 (1972)
    ("Jaffe"). *See also Superior Films, Inc. v. Department of
    Education*, 346 U.S. 587, 589 (1954) (concurring opinion of Mr.
    Justice Douglas):

    > Motion pictures are of course a different medium of expression
    > than the public speech, the radio, the stage, the novel, or the
    > magazine. But the First Amendment draws no distinction between the
    > various methods of communicating ideas. On occasion one may be
    > more powerful or effective than another. . . . Which medium will
    > give the most excitement and have the most enduring effect will
    > vary with the theme and the actors. It is not for the censor to
    > determine in any case.

[^118]: Gary Levin, *Viewers mob HBO to see 'Sopranos'* o*pener*,
    http://www.usatoday.com/life/television/
    2002-09-17-hbo-sopranos_x.htm (visited Apr. 9, 2003) (HBO show has
    more viewers than any simultaneous major network show); *see also*
    *TV, Radio, Cable & Programming*, [Telecommun. Pol.
    Rev.]{.smallcaps} at 11 (Feb. 29, 2004) (final episode of HBO's "Sex
    and the City" reportedly drew 11 million viewers).

[^119]: Lisa de Moraes, *In a Tuesday Night Showdown, Fox News Channel
    Outdraws the Big Three,* Washingtonpost.com,
    http://washingtonpost.com/wp-dyn/articles/A54789-2004Sep1.html
    (visited Sept. 2, 2004).

[^120]: Bill Carter, *As Season Begins, Networks Struggle in Cable's
    Shadow*, [N.Y. Times]{.smallcaps} at 1 (Sept. 19, 2004) (noting that
    Mitsubishi had reduced its prime-time network advertising from \$120
    million to nothing and that "the networks have lost almost a quarter
    of their audience in the last decade"). Other sources, perhaps using
    different measurements, state that cable surpassed traditional
    broadcasters in 2002. *By the Numbers, Briefly*, [Telecommun. Pol.
    Rev.]{.smallcaps} at 7 (Dec. 28, 2003) (citing [Broadcasting &
    Cable]{.smallcaps}).

    I believe that the first-quoted words in the text above overstate
    the share of traditional television because they count as viewers of
    "the networks'" viewers who watch CBS, NBC, *etc.*, on cable TV and
    DBS. In testing The Scarcity Rationale, what matters is the
    transmission medium (traditional broadcast vs. cable, DBS,
    Internet), not the content stream (CBS, NBC vs. CNN, ESPN).

[^121]: Steve LeBlanc, *Cahill Admits Underestimating Ads' Impact* (Dec.
    16, 2004), http://apnews/excite. com/
    article/20041216/D870HQ4G1.html (visited Dec. 17, 2004).

[^122]: These are UPN (which is commonly owned with CBS), WB, Paxson and
    PBS on traditional TV; and, on radio, Clear Channel, Cumulus,
    Citadel, Infinity (which is commonly owned with CBS), and NPR.

[^123]: *See, e.g., Eleventh Cable Competition Report, supra* note 76,
    at 17 ¶ 24.

[^124]: *Id.* at 115 (Table B-1).

[^125]: *Id. at* 38-39 ¶ 54, & at 40 nn.306, 307.

[^126]: *See* text accompanying note 111 *supra*.

[^127]: The conservative Rupert Murdoch has operated DirecTV for about a
    year, but there has been no allegation that other views have been
    deleted from its channels. Recently, the reputedly conservative
    Clear Channel radio chain began broadcasting the liberal Air America
    on several of its stations. *See, e.g.*, *Clear Channel brings Air
    America to Albuquerque airwaves*, New Mexico Bus. Weekly (Aug. 30,
    2004), http://albuquerque.bizjournals.com/albuquerque/stories
    /2004/08/30/daily5.html (visited Oct. 19, 2004); Jesse Walker, *The
    Profit Motive: Clear Channel discovers the liberal demographic*,
    reasononline, http://www.reason.com/links/links090704.shtml (visited
    Sept, 28, 2004). Indeed, any observer of traditional TV on the one
    hand an cable and DBS on the other will see that a cacophony of
    different viewpoints and opinions is heard on the latter,
    channel-rich media, although each cable and DBS system is controlled
    by one company.

[^128]: *Eleventh Cable Competition Report,* supra note 76, at 115
    (Table B-1 stating data that only approximately 15% of American
    households that can receive traditional TV broadcasting use it as
    their primary video medium). Traditional radio broadcasters have
    been losing audiences also, allegedly to "Napster, computers, and
    the CD business generally." [Telecommun. Pol. Rev]{.smallcaps}.,
    July 7, 2002, at 14.

[^129]: *See, e.g.,* Drudge Report (Oct. 8, 2004), *ABC News Political
    Director Memo Sparks Controversy: Both Sides Not 'Equally
    Accountable*,' http://www.drudgereport.com/mh.htm (printing a memo
    by ABCNEWS Political Director that allegedly shows inclinations
    against President Bush) (visited Oct. 19, 2004); James P. Pinkerton,
    *The day CBS News got 'blogged' down*, Newsday.com, Sept. 14, 2004,
    http://www.newsday.com/news/
    columnists/ny-vppin143966771sep14,0,5921308.column (describing
    allegations that CBS's 60 Minutes show presented forged documents
    critical of President Bush's service in the Texas Air National
    Guard) (visited Oct. 14, 2004); James P. Pinkerton, *As Rather goes,
    so goes network news*, Newsday.com, Sept. 21, 2004,
    http://www.newsday.com/news/columnists/ny-vppin213979566sep21
    ,0,7100958.column (same, and quoting Tom Rosenstiel, Director of the
    Project for Excellence in Journalism, as speaking of "the end of the
    era of network news") (visited Oct. 21, 2004). New media\'s
    reputation for objectivity has also been questioned. *See, e.g.,*
    *Outfoxed: Rupert Murdoch's War on Journalism*,
    http://ww.outfoxed.org (movie about alleged conservative bias on
    FoxNews channel) (visited Oct. 19, 2004).

[^130]: *See* *Dead Air*, [Forbes Magazine]{.smallcaps} at 138 (Nov. 25,
    2002), available at 2002 WL 23192722 (quoting former FCC Chief
    Economist Thomas Hazlett describing traditional TV as "a product
    that 88% of the population pays money to avoid").

[^131]: *Baseball leads Fox to Nielsen win*, CNN.com International
    Entertainment (Oct. 27, 2004),
    http://edition.cnn.com/2004/SHOWBIZ/TV/10/27/nielsens.ap/ (visited
    Dec. 6, 2004); Arthur Spiegelman, *TV Debates Loom Larger in
    Presidential Race*, Boston Globe (Oct. 11, 2004), http://www.boston.
    com/news/
    politics/debates/articles/2004/10/11/tv_debates_loom_larger_in_presidential_race/
    (visited Oct. 19, 2004); Greenfield at Large, *The Waning Influence
    of the Networks & When Does a Potential Tragedy Become a Laughing
    Matter* (\"*Greenfield*\"), aired Aug. 23, 2001, available at
    http://www.cnn.com/TRANSCRIPTS/ 0108/23/ gal.00.html (visited Sept.
    7, 2001). The same fragmentation of audience has occurred in radio
    broadcasting with the end of a few dominant "general interest"
    stations and the advent of many "format-driven" stations, and in the
    print media with the demise of general interest magazines such as
    Life, Look, The Saturday Evening Post, and Collier's, and the
    appearance of thousands of specialty magazines. *Greenfield, supra*
    this note.

[^132]: *See* John Thorne, Peter W. Huber, & Michael K. Kellogg,
    [Federal Broadband Law]{.smallcaps} § 1.2.1 at 7-8 (Little Brown &
    Co., New York NY, 1995).

[^133]: *See, e.g., Basic cable clobbers networks in July*,
    Entertainment Television (July 30, 2003),
    http://www.poe-channels.com/stories.php?poeurlid=24885 (visited Dec.
    23, 2004); Shirley Brady, *Cable Ratings Keep Climbing*, [Cable
    World]{.smallcaps} at 4 (Mar. 31, 2003) ("Through March \[2003\],
    ad-supported cable networks garnered a 46.7 prime-time household
    rating, compared to 43.7 for CBS, NBC, ABC and Fox").

[^134]: *Amendment of Parts 2, 73 & 76 of the Commission's Rules to
    Authorize the Transmission of Teletext by TV Stations*, 53 Rad. Reg.
    2d (P&F) 1309, 1324 ¶ 59 (1983), *affirmed & reversed in part on
    other grounds*, *TRAC*, *supra* note 55.

[^135]: *TRAC,* 801 F.2d at 508, citing *Red Lion*, U.S. 395 at 390. For
    other Supreme Court statements that justify regulation of
    traditional broadcasters not on dangerous power, but on physical
    scarcity of frequencies, see *Turner Broadcasting System, Inc. v.
    FCC*, 512 U.S. 622, 639-40 (1994), citing *League of Women Voters*,
    468 U.S. at 377, *FCC v. National Citizens Comm. for Broadcasting*,
    436 U.S. 775, 799 (1978), and *Red Lion*, *supra* this note.

[^136]: *75% of U.S. Homes Have Web Access*, CNNMoney (March 19, 2004),
    http://www.cnn.com/2004 /03/18/ technology/home_internet.reut
    /index.htm?cnn.=yes (visited March 19, 2004); *Internet in More
    Homes Than Cable TV*, Local6.com (Feb. 25, 2004), http://www.local6.
    com/technology /2872965/detail.html (visited Feb. 26, 2004).

[^137]: *See supra* note 89.

[^138]: *See, e.g.*, Sean Bratches, *Cable Needs to Build Strong Ethnic
    Base*, [Multichannel News]{.smallcaps} (Oct. 28, 2002), available at
    2002 WL 16553423 ("Cable\'s top multichannel competitors have been
    quick to seize the opportunity to increase market share by
    delivering more Spanish-language programming to the growing Hispanic
    market. Direct-broadcast satellite providers DirecTV Inc. and
    EchoStar Communications Co. each offer 20 or more channels of
    Hispanic programming. And they are getting the desired results: DBS
    penetration is 14.4 percent among Hispanic households, a ratio
    that\'s on par with the general market percentage").

[^139]: Robert W. Crandall & Harold Furchtgott-Roth, [Cable TV:
    Regulation or Competition]{.smallcaps} at 147 (The Brookings Inst.,
    Washington DC, 1996). *Accord,* Robert Kieschnick & B.D. McCullough,
    *Why do people not subscribe to cable television? A review of the
    Evidence* (Sept. 1998 draft), available at
    www.tprc.org/abstracts98/kieschnick.pdf ("the evidence examined
    suggests that while household income is an influence on a
    household's decision to subscribe to cable television, it is not a
    significant influence").

[^140]: *Annual Assessment of the Status of Competition in the Market
    for the Delivery of Video Programming*, 17 FCC Rcd 26901, 26930
    n.180 (2002) ¶ 59.

[^141]: U.S. Department of Education, *Internet Access in U.S. Public
    Schools Up for Seventh Straight Year*,
    http://www.ed.gov/PressReleases/09-2002/09242002b.html (visited Apr.
    8, 2003); Charles Lane, *Justices to Hear Internet Porn Case*, [The
    Wash. Post]{.smallcaps} at A-08 (Nov. 13, 2002).

[^142]: *See, e.g.*, 47 U.S.C. § 531; Arlington Independent Media,
    http://www.channel33.org/arlingtonmedia/ (visited Feb. 3, 2004).

[^143]: *League of Women Voters*, 468 U.S. at 377 ("our cases have
    taught that, given spectrum scarcity, those who are granted a
    license to broadcast must serve in a sense as fiduciaries for the
    public by presenting 'those views and voices which are
    representative of \[their\] community and which would otherwise, by
    necessity, be barred from the airwaves,'\" quoting *Red Lion*, 395
    U.S. at 389); *CBS v. DNC*, 412 U.S. at 117 ("very early the
    licensee\'s role developed in terms of a \'public trustee\' charged
    with the duty of fairly and impartially informing the public
    audience"); *Office of Communication of the United Church of Christ
    v. FCC*, 359 F.2d 994, 1003 (D.C. Cir. 1966) ("A broadcaster seeks
    and is granted the free and exclusive use of a limited and valuable
    part of the public domain; when he accepts that franchise it is
    burdened by enforceable public obligations"), 425 F.2d 543, 548
    (D.C. Cir. 1969) ("broadcasters are temporary permittees \--
    fiduciaries \-- of a great public resource and they must meet the
    highest standards which are embraced in the public interest
    concept").

[^144]: *See supra* note 106.

[^145]: *Radio-Television News Directors Ass'n,* 184 F.3d at 883 n.9
    ("the 'trustee' theory ‑‑ which derives from the government\'s
    granting of private property rights in public resources ‑‑ is
    distinct from theories premised on the scarcity of broadcast
    spectrum").

[^146]: *See* New Age, *supra* note 51, 47 [Duke L.J]{.smallcaps}. at
    921.

[^147]: *See, e.g.,* FCC Wireless Telecommun. Bur., *Auction 25, Closed
    Broadcast*, http://wireless.fcc.gov/auctions/ 25/ (visited Apr. 9,
    2003).

[^148]: *See, e.g., Greater New Orleans Broadcasting Ass'n, Inc. v.
    United States*, 527 U.S. 173, 188-90 (1999) (upholding First
    Amendment challenge to application of statute that prohibits
    advertising about privately operated commercial casino gambling
    where such gambling is legal), *Rust v. Sullivan*, 500 U.S. 173
    (1991) (rejecting First Amendment challenge to regulations that
    prohibit health professionals in government-funded family planning
    programs from discussing abortion with their patients, and limiting
    *League of Women Voters*, *supra* note 17). *See also* New Age,
    *supra* note 51, 47 [Duke L.J]{.smallcaps}. at 921 (calling the
    subject of 'unconstitutional conditions' "the true Okefanokee of
    constitutional law"). In *Syracuse Peace Council*, the FCC rejected
    the idea that forcing traditional broadcasters to forego their First
    Amendment rights should be an incident to their acceptance of a
    license. *Syracuse Peace Council*, 2 FCC Rcd at 5055 ¶80. The
    Commission did, however, opine that it could lawfully impose some
    kinds of regulation on traditional broadcasters under the "public
    interest" standard of the Communications Act without violating their
    Constitutional rights. *Id.* at ¶81.

[^149]: *See supra* Section IV.B (describing, *inter alia*, cable TV and
    phone- and cable-based Internet access).

[^150]: Henry Geller, [The Fairness Doctrine in Broadcasting: Problems &
    Suggested Courses of Action]{.smallcaps} at 23 (Rand Corp., Santa
    Monica CA, 1973) ("Geller") (in 1972, over 2,800 Fairness Doctrine
    complaints); Jaffe, *supra* note 116, 85 [Harv. L. Rev]{.smallcaps}.
    at 779 & n.49 (citing [Broadcasting]{.smallcaps} Magazine, Dec. 27,
    1971, at 21, to the effect that in 1970 the FCC received over 60,000
    Fairness Doctrine complaints).

[^151]: Geller, *supra* note 149, at 23 note † (in fiscal 1971, the
    Commission received 2,000 Fairness Doctrine complaints, based on
    which it made only 168 inquiries to stations and issued only 69
    rulings, only 5 of which were adverse to the broadcaster).

[^152]: When the regulations described in Section II were in effect,
    their inefficiencies led to criticism even among experts who were
    thought generally to favor government regulation. *See, e.g.,* David
    L. Bazelon, *The First Amendment & the "New Media" -- New Directions
    in Regulating Telecommunications*, 31 [Fed. Commun.
    L.J.]{.smallcaps} 201, 209 (1979) ("The key, in my view, is to move
    away from 'behavioral' regulation toward what I call 'structural'
    regulation of the media"). *See also supra* note 116 (citation to
    opinion of Mr. Justice Douglas).

[^153]: *Pacifica*, 438 U.S. at 748 ("the broadcast media have
    established a uniquely pervasive presence in the lives of all
    Americans. Patently offensive, indecent material presented over the
    airwaves confronts the citizen . . . in the privacy of the home . .
    ."), 749 ("broadcasting is uniquely accessible to children");
    *Action for Children's Television v. FCC*, 58 F.3d 654, 660 (D.C.
    Cir. 1995) ("Unlike cable subscribers, who are offered such options
    as 'pay‑per‑view' channels, broadcast audiences have no choice but
    to 'subscribe' to the entire output of traditional broadcasters.
    Thus they are confronted without warning with offensive material"),
    *cert. denied,* 516 U.S. 1043 (1996). *See also Palmetto
    Broadcasting Co.*, 33 F.C.C. 265, 298 (1961) ¶ 7 ("unlike the
    acquisition of books and pictures, broadcast material is available
    at the flick of a switch to young and old alike, to the sensitive
    and the indifferent, to the sophisticated and the credulous"),
    *affirmed*, 33 F.C.C. 250 (1962), *reconsideration denied*, 34
    F.C.C. 101 (1963), *aff\'d sub nom. Robinson v. FCC*, 334 F.2d 534
    (D.C. Cir.), *cert. denied*, 379 U.S. 843 (1964).

[^154]: Indeed, scarcity and pervasiveness seem mutually contradictory.
    *New Age, supra* note 51, 47 [Duke]{.smallcaps} L.J. at 946.

[^155]: *See supra* notes 68-101, 117-29.

[^156]: *See Eleventh Cable Competition Report*, *supra* note 76, at
    12-13 ¶¶ 18-19 (showing that cable television is accessible to 95%
    of occupied American homes with a television, according to a
    reputable source). *See also Denver Area Educ. Telecommun.
    Consortium, Inc. v. FCC,* 518 U.S. 727, 744-45 (1996) ("Cable
    television broadcasting . . . is as 'accessible to children' as
    over‑the‑air broadcasting, if not more so. . . . . Cable television
    systems . . . have established a uniquely pervasive presence in the
    lives of all Americans") (quotation marks omitted) (plurality
    opinion).

[^157]: Reliable reports in 2001 and 2002 stated that
    [broadband]{.underline} Internet access was available by cable modem
    or DSL to 75-80% of the homes in the United States. *Inquiry
    Concerning High-Speed Access to the Internet Over Cable & Other
    Facilities,* 17 FCC Rcd 4798, 4803 n.24 (2002) ¶ 9, *affirmed in
    part & vacated in part on other grounds, Brand X Internet Services
    v. FCC*, 345 F.3d 1120 (9^th^ Cir. 2003), *cert. granted,* 125 S.
    Ct. 654 (2004). It is safe to believe that the number has grown
    since 2002 and that the percent to which [narrowband]{.underline}
    access is available is larger.

[^158]: *Butler v. Michigan* , 352 U.S. 380, 383 (1957), saying, of a
    law that made it a crime to make available for the general reading
    public a book that would have a potentially deleterious influence
    upon youth, that its effect

    > is to reduce the adult population of Michigan to reading only what
    > is fit for children. It thereby arbitrarily curtails one of those
    > liberties of the individual, now enshrined in the Due Process
    > Clause of the Fourteenth Amendment, that history has attested as
    > the indispensable conditions for the maintenance and progress of a
    > free society. We are constrained to reverse this conviction.

[^159]: In the early 1960s, the owned and affiliated stations of the
    three Big Networks accounted for an 87% share of the usage of TV
    sets in US homes. By the early 2000s, their share was down to 31%.
    Jonathan Levy, Marcelino Ford-Levine & Anne Levine, *Broadcast
    Television: Survivor in a Sea of Competition*, FCC Office of Plans &
    Policy Working Paper Series #37, September 2002, Table 25 at 62,
    citing Media Dynamics, [TV Dimensions 2001 Report]{.smallcaps}
    (2001), available at http://hraunfoss.fcc.gov/edocs_public
    /attachmatch/DOC-226838A2.doc (visited July 9, 2004). The most
    popular TV show of 1960-61, Gunsmoke, was watched by about 17
    million homes in a country of about 53 million homes -- almost a
    third of all homes. The most popular show in mid-2004, CSI, was
    watched by about 11.5 million homes in a country of an estimated 110
    million homes -- little more than a tenth of all homes. [The World
    Almanac & Book of Facts 2003]{.smallcaps} at 406 (World Almanac
    Books, New York NY, 2003); Bureau of the Census, U.S. Department of
    Commerce, [Historical Statistics of the United States]{.smallcaps},
    [Colonial Times to 1970]{.smallcaps}, [Part 2]{.smallcaps}, Chapters
    N-Z, Series R 93-105 at 796 (Kraus International Publications, White
    Plains NY, 1989); *Television*, http://course1.winona.edu/
    jbovinet/Web%20Transfer/Trivia%20Stuff/Television2.htm (visited July
    8, 2003); *Yahoo!TV*, http://tv.yahoo. com/nielsen (visited July 8,
    2004).

[^160]: Admittedly, there is no blocking product for AM and FM radio
    programs except for the traditional ones (the tuning knob, the off
    button, and the garbage can).

[^161]: *Red Lion*, 395 U.S. at 386-87 & n.15 ("the ability of new
    technology to produce sounds more raucous than those of the human
    voice justifies restrictions"), 388 ("only a tiny fraction of those
    with resources and intelligence can hope to communicate by radio at
    the same time if intelligible communication is to be had, even if
    the entire radio spectrum is utilized *in the present state of
    commercially acceptable technology*") (italics added), 397-99
    (describing recent developments in radio spectrum use and explaining
    their effect on Constitutional principles applicable to traditional
    broadcasters). *See also CBS v. DNC*, 412 U.S. at 102 ("the
    broadcast industry is dynamic in terms of technological change;
    solutions adequate a decade ago are not necessarily so now, and
    those acceptable today may well be outmoded 10 years hence"), 131
    ("the Commission noted . . . that the advent of cable television
    will afford increased opportunities for the discussion of public
    issues").

[^162]: The Supreme Court stated in *Associated Press v. United* States,
    326 U.S. 1, 20 (1945) that "the widest possible dissemination of
    information from diverse and antagonistic sources is essential to
    the welfare of the public, . . ." Chandler & Cortada, *supra* note
    22, is a book-length description of the United States government's
    interest in these matters from the colonial era to the present.