*Pages 1--34 from  Microsoft Word - 47188.doc*
 FEDERAL  COMMUNICATIONS  COMMISSION 
 MEDIA  BUREAU  STAFF  RESEARCH  PAPER 

 The  Scarcity  Rationale  For 
 Regulating 
 Traditional  Broadcasting: 
 An  Idea  Whose  Time  Has  Passed 
 By  John  W.  Berresford 
 March  2005 

 2005-  2 
1
 The  Media  Bureau  Staff  Research  Paper  Series  consists  of  reports  and  papers  prepared  by  the  professional  staff  of  the  Media  Bureau,  often  in 
 collaboration  with  staff  in  other  organizational  units  within  the  Commission  or  external  academic  researchers,  on  topics  in  media  economics,  media 
 policy,  and  media  industry  developments  and  performance.  The  Media  Bureau  Staff  Research  Paper  Series  may  include  initial  research  reports, 
 advanced  drafts  of  staff  studies,  or  completed  research  papers  that  in  some  cases  have  been  submitted,  or  accepted,  for  publication  in  academic  journals 
 or  other  external  publications.  The  purposes  of  this  staff  paper  series  include  (1)  creating  awareness  of  future  media  policy  issues;  (2)  fostering 
 debate  and  discussion  both  within  the  Commission  and  external  to  the  Commission  among  researchers,  scholars,  media  enterprises,  other 
 interested  parties,  and  the  public  generally  about  future  media  policy  issues  prior  to  the  Commission  initiating  formal  inquiries  or  rulemakings  to 
 address  and  resolve  such  issues;  (3)  providing  both  descriptive  and  inferential  (econometric)  empirical  studies  on  aspects  of  media  industry 
 structure,  conduct,  and  performance;  and  (4)  providing  conceptual  analysis  and  empirical  research  in  support  of  ongoing  or  near  term  Media  Bureau 
 inquiries  and  rulemakings.  The  views  and  professional  opinions  expressed  in  any  Media  Bureau  staff  research  paper  are  those  of  the  author,  or  authors, 
 and  do  not  necessarily  reflect  the  views  of  the  Media  Bureau,  Commissioners,  or  any  other  Commission  staff  member  or  organizational 
 unit  within  the  Federal  Communications  Commission.  Given  the  preliminary  nature  of  the  research  reported  in  some  staff  research  papers,  it 
 is  advisable  to  check  with  the  authors  before  quoting  or  referencing  these  papers  in  other  publications.  Questions  or  inquiries  about  the  Media  Bureau 
 Staff  Research  Paper  Series  should  be  directed  to  Jerry  B.  Duvall,  Director  of  Media  Economic  Research,  at  (202)  418-  2616  or  Jerry.  Duvall@  fcc.  gov. 
 Copies  of  any  Media  Bureau  staff  research  paper  may  be  obtained  from  the  Commissions  website  at  www.  fcc.  gov. 
2
 ii 
 The  Scarcity  Rationale 
 for  Regulating 
 Traditional  Broadcasting: 
 An  Idea  Whose  Time  Has  Passed 

 JOHN  W.  BERRESFORD  * 
 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  todays  media  marketplace. 
 Perhaps  in  recognition  of  the  Rationales  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 

 *  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  authors  alone. 
3
 iii 
 Table  of  Contents 
 I.  The  Scarcity  Rationale  .  1 
 II.  The  Consequences  of  the  Scarcity  Rationale.  2 
 III.  The  Supreme  Courts  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  Todays  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 
4
 1 
 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  1  provided  by  use  of  radio 

 spectrum.  The  idea  was  that  these  traditional  broadcasters  should  be  regulated  by  the  government  because  radio  spectrum  was  scarce.  2  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,  3  but  a  lengthy  explanation  of  it  appeared  first  in  the  United  States  Supreme  Courts  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.  4 
 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.  5  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.  6 

 1  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. 
 2  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. 

 3  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). 
 4  NBC  v.  United  States,  319  U.  S.  190,  213  (1943)  (  NBC). 

 5  Id.,  319  U.  S.  at  215. 
 6  Id.  at  216. 
5
 2 
 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.  7  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.  8  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.  9 

 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,  10  would  have  sufficed  to  choose  from  among  the  many  who  apply.    11  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. 

 7  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). 

 8  Id.  at  394. 
 9  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). 
 10  Section  301  of  the  Communications  Act  (47  U.  S.  C.    301),  like  its  predecessor,  forbids  ownership  of 
 channels  of  radio  transmission. 
 11  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  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 
 childrens  educational  broadcasting,  47  U.  S.  C.    394. 
6
 3 
 Armed  with  The  Scarcity  Rationale,  however,  the  FCC  followed  the  Supreme  Courts  urging  to  determine  the  composition  of  the  traffic  12  and  make  traditional 
 broadcasters  proxies  for  the  entire  community.    13  The  FCC  put  a  large  number  of  regulations  on  traditional  broadcasters.  14  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.  15 
 Perhaps  most  important,  The  Scarcity  Rationale  was  thought  to  justify  making  the  First  Amendment  16  rights  of  traditional  broadcasters  less  than  those  of  providers  of 
 newspapers,  books  and  magazines,  movies,  live  performances,  and  cable  and  satellite  broadcasters.  17 

 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.  18  Their 

 12  See  NBC,  319  U.  S.  at  216. 
 13  See  Red  Lion,  395  U.  S.  at  394. 
 14  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  childrens  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)). 

 15  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). 

 16  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.  Amend.  I. 
 17  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  L.  J.  1  (2002). 

 18  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. 
7
 4 
 numbers,  originally,  were  few.  19  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[  20  ]  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.  21 
 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.  22 
 In  20  th  century  America,  the  FCC  and  its  predecessors  used  their  licensing  powers  to  marginalize  or  shut  down  propaganda  radio  broadcasters  that  promoted 

 19  The  Federal  Radio  Commission  spent  its  first  years  reducing  the  number  of  broadcasters  by  a  substantial 
 amount.  FRC  FIRST  ANNUAL  REPORT  at  2,  9  (1927)  (opining  that  at  least  400  of  732  stations  would  have  to  be  eliminated);  FRC  SECOND  ANNUAL  REPORT  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. 
 20  Index  Expurgatorius  was  a  catalogue  of  books  from  which  passages  marked  as  against  faith  or  morals 
 must  be  removed  before  Catholics  can  read  them.  Websters  Revised  Unabridged  Dictionary  (1913),  http://  index.  prohibitorius.  word.  sytes.  org/  (visited  Feb.  2,  2004). 

 21  Ithiel  de  Sola  Pool,  TECHNOLOGIES  OF  FREEDOM  at  14-  15  (Harvard  Univ.  Press,  Cambridge  MA,  1983) 
 (  Pool).  See  also  Theodore  F.  T.  Plucknett,  A  CONCISE  HISTORY  OF  THE  COMMON  LAW  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). 

 22  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  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). 
8
 5 
 only  the  broadcasters  ideas.  23  According  to  some,  the  FCCs  Fairness  Doctrine  was  used  more  recently  to  challenge  and  harass  right-  wing  broadcasters  24  and  probably 
 had  the  net  effect  of  suppressing  speech  about  controversial  issues.  25 
 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,  26  their  technical  and  financial  resources,  27  the  closeness  of  their  connections  to  the  community  they  would  serve,  28  and  their  races,  ethnic  origins  and 
 sexes.  29  The  FCC  also  denied  entry  to  certain  persons  who  were  already  in  the  media   

 23  See,  e.  g.,  FRC  SECOND  ANNUAL  REPORT  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  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  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  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). 
 24  Fred  W.  Friendly,  THE  GOOD  GUYS,  THE  BAD  GUYS  &  THE  FIRST  AMENDMENT:  FREE  SPEECH  VS.  FAIRNESS  IN 
 BROADCASTING  at  32-  42  (Random  House,  New  York  NY,  1977). 
 25  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. 

 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. 

 26  See,  e.  g.,  Mid-  American  Broadcasting  Corp.,  12  F.  C.  C.  282,  291-  93  (1947)    3-  4. 
 27  See,  e.  g.,  Bamberger  Broadcasting  Service,  Inc.,  11  F.  C.  C.  1242,  1254  (1947)    3. 
 28  See,  e.  g.,  Policy  Statement  on  Comparative  Broadcast  Hearings,  1  F.  C.  C.  2d  393,  395-  96  (1965). 
 29  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  FCCs  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.  293,  297-  304  (1991). 
9
 6 
 such  as  those  who  already  owned  broadcast  licenses  30  or  newspapers  in  the  communities  where  they  wanted  to  broadcast.  31 
 Traditional  broadcasters,  once  they  entered,  were  liable  to  the  Commissions  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  FCCs  surveillance  was  a  Sword  of  Damocles  over  every  traditional 
 broadcasters  head.  Though  it  seldom  fell,  it  was  never  removed.  32 
 FCC  regulations  required  traditional  broadcasters  to  broadcast  content  against  their  will  33  and  forbade  them  to  broadcast  the  content  they  wanted.  34  It  is  highly  likely 

 that  any  such  regulations,  if  imposed  on  newspapers,  35  other  print  media,  or  cable  television,  36  would  be  found  to  violate  the  First  Amendment. 

 30  47  C.  F.  R.    73.3555. 
 31  Amendment  of  Sections  73.34,  73.240,  &  73.636  of  the  Commissions  Rules  Relating  to  Multiple  Ownership  of 
 Standard,  FM,  &  Television  Broadcast  Stations,  50  F.  C.  C.  2d  1046  (1975). 

 32  Glen  O.  Robinson,  The  FCC  &  the  First  Amendment:  Observations  on  40  Years  of  Radio  &  Television  Regulation, 
 52  MINN.  L.  REV.  67,  119  (1967). 
 33  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). 

 34  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). 
 35  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  Assn,  Inc.,  v.  FRC,  47  F.  2d  670,  672  (D.  C.  Cir.  1931).  Perhaps,  however,  the  statute  extended  only  as  far  as  then- 
10
 7 
 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.  37  Other  indirect  commands  and  prohibitions 
 suggested  certain  kinds  of  programs,  38  required  traditional  broadcasters  to  actively  ascertain  39  and  satisfy  40  the  wishes  of  their  local  communities,  required  discussion  of 
 national  and  local  public  issues  in  which  differing  sides  had  fair  coverage  (  The  Fairness  Doctrine),  41  prohibited  unfair  editorializing,  .  .  .  slanted  news  coverage,  .  .  .  [and] 
 over-  commercialization,  42  and  required  racially  diverse  staffs  43  and  the  broadcast  of  programs  created  by  independent  producers.  44 

 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.  45  These  and  other  fruits  of  The  Scarcity  Rationale  put  traditional 

 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. 
 36  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). 
 37  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. 
 38  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). 

 39  See,  e.  g.,  KCMC,  Inc.,  19  F.  C.  C.  2d  109  (1969). 
 40  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). 
 41  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. 
 42  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). 
 43  See,  e.  g.,  Petition  for  Rulemaking  to  Require  Broadcast  Licensees  to  Show  Nondiscrimination  in  Their  Employment 
 Practices,  23  F.  C.  C.  2d  430  (1970). 
 44  See,  e.  g.,  Review  of  the  Prime  Time  Access  Rule,    73.  658  (k)  of  the  Commissions  Rules,  11  FCC  Rcd  546  (1995). 

 45  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). 
11
 8 
 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  Courts  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.  46 

 In  1985  and  1987,  in  two  decisions  ending  The  Fairness  Doctrine,  the  Commission  attempted  to  send  such  a  signal.  47  These  signals  may  have  become  blurred 
 because  vestiges  of  The  Fairness  Doctrine  remained  in  effect  until  2000.  48  This  paper  takes  up  where  the  Commissions  1987  decision  left  off  and  concludes  that  The  Scarcity 
 Rationale  no  longer  serves  as  a  valid  justification  for  the  governments  intrusive  regulation  of  traditional  broadcasting. 

 IV.  The  Scarcity  Rationale  Is  Invalid 
 A.  The  Scarcity  Rationale  Has  No  Basis  in  Either  Physics  or  Economics 
 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 

 46  League  of  Women  Voters,  468  U.  S.  at  376  n.  11. 
 47  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). 

 48  See  Radio-  Television  News  Directors  Assn  v.  FCC,  184  F.  3d  872  (D.  C.  Cir.  1999),  229  F.  3d  269  (D.  C.  Cir.  2000). 
12
 9 
 (the  receiving  aerial).  49  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.  50  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).  51  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,  52  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  Peoples  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.  53  A  similar  kind  of  movement  occurs  in  face-to-  face  conversation,  when  sound  waves  from  a  speakers  mouth  enter  the  listeners  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. 

 49  Jim  Sinclair,  HOW  RADIO  SIGNALS  WORK:  ALL  THE  BASICS  PLUS  WHERE  TO  FIND  OUT  MORE  at  2  (McGraw-Hill, 
 New  York  NY,  1997)  (italics  in  original). 
 50  John  R.  Pierce  &  Michael  Noll,  SIGNALS:  THE  SCIENCE  OF  TELECOMMUNICATIONS  at  118  (Scientific  American 
 Library,  New  York  NY,  1990). 
 51  Glen  O.  Robinson,  The  Electronic  First  Amendment:  An  Essay  for  the  New  Age,  47  DUKE  L.  J.  899,  912  (1998) 
 (  New  Age). 
 52  See  supra  page  2. 

 53  New  Age,  supra  note  51,  47  DUKE  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). 
13
 10 
 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.  54  There  is  also,  at  any 

 given  time,  a  finite  amount  of  land,  wood,  and  many  other  resources.  55  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.  56  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.  57  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  FCCs  Spectrum  Policy  Task  Force  recently  found,  according  to  [  p]  reliminary  data  and 

 54  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. 
 55  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.  1,  14  (1959). 
 56  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. 

 57  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  at  83  (Prentice-  Hall,  Inc.,  Englewood  Cliffs  NJ,  1984);  Morris  L.  Ernst,  THE  FIRST  FREEDOM  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  at  15-  24  (Routledge/  Thoemmes  Press,  London  UK,  2000). 
14
 11 
 general  observations  that  portions  of  the  radio  frequency  spectrum  are  not  in  use  for  significant  periods  of  time.  58  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.  59 

 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,  60  Digital  Television  61  and  Digital  Radio.  62  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,  63  via  unlicensed  spectrum  and 

 WiFi  and  WiMax  devices.  64  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  governments 
 decisions  about  spectrum  allocation  (especially  for  traditional  broadcasting),  channel 

 58  Spectrum  Policy  Task  Force,  REPORT  (  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). 
 59  Richard  A.  Posner,  PUBLIC  INTELLECTUALS:  A  STUDY  IN  DECLINE  (  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). 

 60  Spectrum  Task  Force  Report,  supra  note  58,  at  40,  46-  56. 
 61  See  Digital  Television  (DTV),  http://  www.  fcc.  gov/  dtv/  (visited  Feb.  3,  2004). 
 62  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). 
 63  Technorati,  Whats  happening  on  the  Web  right  now?,  htpp://  www.  technorati.  com  (visited  March  11,  2005). 

 64  See,  e.  g.,  WiMax  May  Pose  Fresh  Challenge  to  Broadband,  REUTERS/  EXTREMETECH.  COM  (Feb.  28,  2005), 
 available  at  2005  WLNR  3195092. 
15
 12 
 bandwidth,  interference  protection,  local  coverage  and  other  technical  matters  make  licenses  fewer  than  they  otherwise  would  be.  65  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.  66  If  a  valuable  thing 
 is  given  away  for  free,  it  should  not  be  surprising  that  the  demand  exceeds  the  supply.  67 
 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  Todays  Media  Marketplace. 
 Since  the  development  of  The  Scarcity  Rationale,  the  number  of  broadcasters  and  channels  has  increased  many  fold.  68  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 

 65  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  Commissions  Rules  &  Regulations,  41  F.  C.  C.  148,  169  (1952)    68;  Roger  G.  Noll,  Merton  J.  Peck,  &  John  J.  McGowan,  ECONOMIC  ASPECTS  OF  TELEVISION  REGULATION  at  100-  01,  116-  20  (The  Brookings 
 Institution,  Washington  DC,  1973);  Bruce  M.  Owen,  Jack  H.  Beebe,  &  Willard  G.  Manning,  Jr.,  TELEVISION  ECONOMICS  at  123-  24  (Lexington  Books,  Lexington  MA,  1979)  (  Owen  et  al). 

 66  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. 

 67  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.,  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. 

 68  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). 
16
 13 
 has  risen  from  7,411  in  the  year  Red  Lion  was  decided  to  15,273  at  the  end  of  2004.  69  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.  70  In  contrast,  today  Kansas  City  has  only  two  general  circulation  newspapers.  71 

 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)  72  and  two  DARS  systems  offer  hundreds  of  channels  in  every  market.  73  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,  74  and  personal  computers  with  WiFi  and  WiMax  connections. 

 Even  more  new  channels  have  appeared  on  media  that  do  not  use  radio.  75  The  first  was  cable  television,  whose  growth  in  number  of  channels  has  dwarfed  traditional 
 broadcasters.  76  No  less  important  are  the  Internet  (narrowband  and  broadband);  players 

 69  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). 
 70  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). 

 71  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). 
 72  PBS,  PBS  Digital  Programming,  http://  www.  pbs.  org/  digitaltv/  multiNS.  html  (visited  March  11,  2005). 

 73  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). 

 74  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.  (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  (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. 
 75  Posner,  supra  note  59,  at  133  ("  substitutes  exist  or  can  be  devised  for  virtually  any  resource). 

 76  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.  & 
17
 14 
 of  video  cassettes,  compact  disks  and  DVDs;  and  the  automatic  transmission  of  news  headlines  and  other  information  to  personal  computers  and  other  wired  terminals.  77 
 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.  78  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,  79  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.  80  Equally  important,  the  new  channels  of  broadcasting  make  available  amounts  and  kinds  of  content  --  both 
 information  and  entertainment  81  --  that  were  unavailable  to  American  consumers  in  the  decades  when  The  Scarcity  Rationale  took  shape.  82  A  partial  list  includes  the  programs 

 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). 
 77  See,  e.  g.,  Akimbo  Working  With  [Consumer  Electronic]  Manufacturers  on  Internet-  Based  TV  Service,  COMMUN. 
 DAILY  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). 

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

 80  XM  Snares  Major  League  Baseball  for  Multi-  year  Satellite  Deal,  COMMUN.  DAILY  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,  Sterns  Move  to  Satellite  Radio 

 Is  a  Signal  Event,  WASH.  POST  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). 

 81  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  Tibets  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). 

 82  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 
18
 15 
 shown  on  educational  broadcast  stations,  which  were  few  before  the  1970s,  83  public  broadcasting  on  both  TV  84  and  radio;  85  all  news  and  talk  channels  on  radio,  86  and 
 hundreds  of  channels  on  cable  TV  and  DBS  service,  87  especially  ones  broadcasting  non-mainstream  opinions  that  were  seldom  heard  in  earlier  decades;  88  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.  89 

 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-  1953  at  288-  89  (Oxford  University  Press,  New  York  NY,  1968).  The  mass  audiences  move  from  radio  also  enabled  the  creation  of  entirely  new  content,  rocknroll,  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. 
 83  William  F.  Baker  &  George  Dessart,  DOWN  THE  TUBE:  AN  INSIDE  ACCOUNT  OF  THE  FAILURE  OF  AMERICAN 
 TELEVISION  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  at  70-  73  (Oxford  Univ.  Press,  New  York  NY,  1970); 

 Owen  et  al.,  supra  note  65,  at  155-  56. 
 84  Public  broadcastings  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). 

 85  National  Public  Radios  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  .  .  .  Dont  Tell  Me!  NPR,  NPR  Programs,  http://  www.  npr.  org/  about/  programs/ 

 allnprprograms.  html  (visited  Feb.  3,  2004). 
 86  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). 
 87  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). 
 88  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  at  A-  9  (Dec.  9,  2003)  (National  Rifle  Association  planning  to  buy  a  traditional  broadcast  station). 

 89  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  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  (Jan.  19,  2004),  available  at  2004  WL  65139470. 
19
 16 
 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,  90  Daily  Kos,  91  and  kausfiles.  92  The  latter  have  a  potentially  transformative  potential  for  the 
 dissemination  of  not  only  opinion,  but  also  facts  and  news  in  competition  with  mainstream  media.  93  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, 

 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  at  4  (Nov.  27,  2003),  available  at  2003  WL  7582811;  Cable,  COMMUN.  DAILY  at  10  (Feb.  19,  2004);  Build  Programming,  Listeners  Will 
 Come,  SATELLITE  NEWS  (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.  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). 

 90  See  http://  www.  andrewsullivan.  com/  (visited  April  7,  2003). 
 91  See  http://  www.  dailykos.  com/  (visited  Apr.  9,  2004). 
 92  See  http://  slate.  msn.  com/  id/  2080972/  (visited  April  7,  2003). 
 93  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). 
20
 17 
 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.  94  The  Internet  also  makes  available,  at  any  time  and  any  place,  including  schools  and  libraries,  content  such  as  newspapers,  95  magazines,  96 
 radio  stations  97  and  TV  programs  98  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.  99  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.  100  Through  file-  sharing 

 94  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.  Drudges  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). 

 95  See,  e.  g.,  The  Washington  Post,  http://  www.  washingtonpost.  com/(  visited  Feb.  3,  2004). 
 96  See,  e.  g.,  Newsweek,  http://  msnbc.  msn.  com/  id/  3032542/(  visited  Feb.  3,  2004). 
 97  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). 

 98  See,  e.  g.,  MSNBC  News,  http://  www.  msnbc.  msn.  com/  id/  3096434/  (visited  Feb.  3,  2004). 
 99  See,  e.  g.,  Michael  Hardt  &  Antonio  Negri,  EMPIRE  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  at  57,  58  (Nov./  Dec.  2004)  (  In  a  digital 

 world,  theres  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  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.,  Castlemans  Dialogue,  http://  www.  castlemans.  org/  dialogue_  toc.  htm  (visited  Feb.  3,  2004). 

 100  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). 
21
 18 
 technologies,  the  Internet  also  makes  available  vast  amounts  of  entertainment  that  was  previously  unobtainable  except  through  purchase  or  hearing  on  radio.  101 
 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.  102  Today,  they  are  scarce  compared  to  broadcasters 

 and  other  media.  103  If  scarcity  is  the  basis  for  the  intrusive  government  regulation  described  in  Section  II  above,  then  newspaper  outlets,  not  broadcast  stations,  deserve 
 greater  attention.  104 

 C.  Variations  of  The  Scarcity  Rationale  Are  Also  Invalid 
 In  what  seem  attempts  to  shore  up  The  Scarcity  Rationale,  several  other  rationales  have  been  advanced  to  justify  governments  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  Peoples  Airwaves  Rationale.  The  regulation  of  traditional  broadcasters  is  sometimes  justified  by  the  term  The  Peoples  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.  105 

 101  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  (Jan.  2005),  available  at  http://  www.  wired.  com/  wired/  archive 

 /13.01/  bittorrent.  html  (visited  Jan.  3,  2005). 
 102  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). 
 103  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. 

 104  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. 
 105  See,  e.  g.,  The  Fairness  Doctrine  &  Other  Issues,  REPORT  OF  THE  SPECIAL  SUBCOMMITTEE  ON  INTERSTATE  & 
 FOREIGN  COMMERCE,  HOUSE  OF  REPRESENTATIVES  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  at  12  (Seven  Stories  Press,  New  York  NY,  2002)  (alleging 
 the  fact  that  the  people,  not  the  multinational  communications  corporations,  own  the  airwaves). 
22
 19 
 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.  106 

 Moreover,  The  Peoples  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.  107  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  Peoples  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.  108  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.  109  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. 

 106  47  U.  S.  C.    301  states  that  Title  IIIs  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,  .  .  . 

 107  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  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?). 
 108  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. 
 109  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). 
23
 20 
 Thus,  The  Peoples  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.  110  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.  111  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.  112 

 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  113  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.  114  The  Court  quoted  approvingly 
 from  the  D.  C.  Circuits  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.  115 
 Not  all  observers  agree  that  traditional  broadcasters  ever  had  dangerous  power.  To  some,  the  idea  that  the  American  people  are  easily  hypnotized  by  subliminal, 

 110  Red  Lion,  395  U.  S.  at  386  n.  15. 
 111  Id.  at  392. 
 112  Id.  at  400. 
 113  Office  of  Communication  of  the  United  Church  of  Christ  v.  FCC,  425  F.  2d  543,  548  (D.  C.  Cir.  1969). 
 114  CBS  v.  DNC,  412  U.  S.  at  127-  28.  The  Court  quoted  with  approval  Secretary  of  Commerce  Hoovers 
 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. 

 115  Id.,  412  U.  S.  at  128,  quoting  Banzhaf,  405  F.  2d  at  1100-  01. 
24
 21 
 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.  116 

 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.  117  This  year,  more  Americans  watched  the  Republican  National  Convention  on  cables  FoxNews  channel  than  on  any  traditional  TV  broadcaster.  118  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.  119 

 116  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.  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. 

 117  Gary  Levin,  Viewers  mob  HBO  to  see  Sopranos  opener,  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.  at  11  (Feb.  29,  2004)  (final 

 episode  of  HBOs  Sex  and  the  City  reportedly  drew  11  million  viewers). 
 118  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). 

 119  Bill  Carter,  As  Season  Begins,  Networks  Struggle  in  Cables  Shadow,  N.  Y.  TIMES  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.  at  7  (Dec.  28,  2003)  (citing  BROADCASTING  &  CABLE). 

 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). 
25
 22 
 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.  120 

 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,  121  cable  TV  (with  systems  averaging  many  dozens  of  channels  122  )  is  the  primary  multi-  channel  video  medium,  123  and  DBS  now  serves  more 
 than  23  million  households  with  more  than  one  hundred  channels.  124  The  fear  that  big  media  owners  would  broadcast  only  their  own  opinions  and  silence  others,  which  the 
 Red  Lion  Court  voiced,  125  has  not  proved  true  on  today's  multi-  channel  media.  126  Traditional  broadcast  TV  is  used  by  a  small  and  dwindling  percentage  of  households,  127 
 and  recent  controversies  have  dented  its  major  news  operations'  reputation  for  objectivity.  128  The  vast  majority  of  American  households  pay  money  to  avoid  traditional 
 TV  and  get  other  channels.  129 

 120  Steve  LeBlanc,  Cahill  Admits  Underestimating  Ads  Impact  (Dec.  16,  2004),  http://  apnews/  excite.  com/ 
 article/  20041216/  D870HQ4G1.  html  (visited  Dec.  17,  2004). 
 121  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. 
 122  See,  e.  g.,  Eleventh  Cable  Competition  Report,  supra  note  76,  at  17    24. 

 123  Id.  at  115  (Table  B-  1). 
 124  Id.  at  38-  39    54,  &  at  40  nn.  306,  307. 
 125  See  text  accompanying  note  111  supra. 
 126  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. 
 127  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.,  July  7,  2002,  at  14. 
 128  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  CBSs  60  Minutes  show 
 presented  forged  documents  critical  of  President  Bushs  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 
26
 23 
 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.  130  What  are 
 pervasive  today  are  not  comatose  couch-  potatoes,  131  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,  132  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 

 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  Murdochs  War  on  Journalism,  http://  ww.  outfoxed.  org  (movie  about  alleged  conservative  bias  on  FoxNews  channel)  (visited  Oct.  19,  2004). 

 129  See  Dead  Air,  FORBES  MAGAZINE  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). 

 130  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  Colliers,  and  the  appearance  of  thousands  of  specialty  magazines.  Greenfield,  supra  this  note. 

 131  See  John  Thorne,  Peter  W.  Huber,  &  Michael  K.  Kellogg,  FEDERAL  BROADBAND  LAW    1.2.1  at  7-  8  (Little 
 Brown  &  Co.,  New  York  NY,  1995). 
 132  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  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). 
27
 24 
 manner  that  is  significantly  different  from  traditional  avenues  of  communication  because  of  the  immediacy  of  the  medium.  133 
 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  .  .  .  .  134 
 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  135  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 

 133  Amendment  of  Parts  2,  73  &  76  of  the  Commissions  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. 

 134  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. 
 135  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). 
28
 25 
 available  only  on  those  new  media  and  is  highly  successful.  136  DBS  has  won  large  numbers  of  Spanish-  speaking  US  households.  137  A  study  in  the  mid-  1990s  found  that 
 the  demand  for  cable  service  is  only  slightly  sensitive  to  household  income.  138  The  largest  DBS  provider  has  stated  that  its  subscribers  are  more  likely  than  cable  TV 
 subscribers  to  live  in  rural  areas.  139  Internet  access  has  been  available  for  several  years  in  the  vast  majority  of  public  libraries  and  classrooms.  140  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,  141  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 

 136  See  supra  note  89. 
 137  See,  e.  g.,  Sean  Bratches,  Cable  Needs  to  Build  Strong  Ethnic  Base,  MULTICHANNEL  NEWS  (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). 

 138  Robert  W.  Crandall  &  Harold  Furchtgott-  Roth,  CABLE  TV:  REGULATION  OR  COMPETITION  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  households  decision  to  subscribe  to  cable  television,  it  is  not  a  significant  influence). 

 139  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. 
 140  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  at  A-  08  (Nov.  13,  2002). 

 141  See,  e.  g.,  47  U.  S.  C.    531;  Arlington  Independent  Media,  http://  www.  channel33.  org/  arlingtonmedia/ 
 (visited  Feb.  3,  2004). 
29
 26 
 the  public.  142  No  statute  expressly  places  fiduciary  duties  on  traditional  broadcasters,  however.  143  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.  144  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  countrys  criminal  justice  system.  145  When  the  FCC  auctions  a  license  for  broadcasting,  146  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  broadcasters  First  Amendment  freedoms? 
 The  issue  of  when  the  government  may  lawfully  condition  a  benefit  on  its  recipient  relinquishing  a  constitutional  right  is  both  complex  147  and  beyond  the  scope  of 

 142  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). 

 143  See  supra  note  106. 
 144  Radio-  Television  News  Directors  Assn,  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). 

 145  See  New  Age,  supra  note  51,  47  DUKE  L.  J.  at  921. 
 146  See,  e.  g.,  FCC  Wireless  Telecommun.  Bur.,  Auction  25,  Closed  Broadcast,  http://  wireless.  fcc.  gov/  auctions/ 
 25/  (visited  Apr.  9,  2003). 
 147  See,  e.  g.,  Greater  New  Orleans  Broadcasting  Assn,  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.  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, 
30
 27 
 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,  148  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 
 markets  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.  149  Only  a  small  fraction  of  them  were,  or  could  realistically  be,  given  serious  consideration.  150  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 
 Commissions  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 

 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. 
 148  See  supra  Section  IV.  B  (describing,  inter  alia,  cable  TV  and  phone-  and  cable-  based  Internet  access). 
 149  Henry  Geller,  THE  FAIRNESS  DOCTRINE  IN  BROADCASTING:  PROBLEMS  &  SUGGESTED  COURSES  OF  ACTION  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.  at  779  &  n.  49  (citing  BROADCASTING  Magazine,  Dec.  27,  1971,  at  21,  to  the 

 effect  that  in  1970  the  FCC  received  over  60,000  Fairness  Doctrine  complaints). 
 150  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). 
31
 28 
 not  produce  and  that  the  American  people  need.  151  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. 
 The  rationales  for  the  Commissions  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;  152  the  Commissions  authority  in  this  area  is  not  expressly  premised  on  The 
 Scarcity  Rationale.  153 
 The  facts  that  render  The  Scarcity  Rationale  invalid,  however,  may  also  undercut  the  rationales  for  the  Commissions  regulation  of  indecent  broadcast  content.  Most 

 importantly,  many  new  broadcasters  have  appeared  in  recent  decades.  154  Cable  television  155  and  Internet  access  156  are  almost  universally  available  to  American 

 151  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. 

 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). 

 152  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  Childrens 

 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). 

 153  Indeed,  scarcity  and  pervasiveness  seem  mutually  contradictory.  New  Age,  supra  note  51,  47  DUKE  L.  J.  at 
 946. 
 154  See  supra  notes  68-  101,  117-  29. 

 155  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). 
 156  Reliable  reports  in  2001  and  2002  stated  that  broadband  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 
32
 29 
 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  medias  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.  157  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.  158  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.  159  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. 

 safe  to  believe  that  the  number  has  grown  since  2002  and  that  the  percent  to  which  narrowband  access  is  available  is  larger. 
 157  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. 
 158  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  (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  at  406 
 (World  Almanac  Books,  New  York  NY,  2003);  Bureau  of  the  Census,  U.  S.  Department  of  Commerce,  HISTORICAL  STATISTICS  OF  THE  UNITED  STATES,  COLONIAL  TIMES  TO  1970,  PART  2,  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). 
 159  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). 
33
 30 
 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.  160  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.  161  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  todays  problems  rather  than  those  of  a  channel-  poor  and  fortunately  bygone  time. 

 160  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). 
 161  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 

 governments  interest  in  these  matters  from  the  colonial  era  to  the  present. 
34