Has Red Lion lost its roar?

Thursday, May 28, 1998

In a world humming and flickering with cable TV signals, satellite feeds and the Internet, the Federal Communications Commission continues to find itself debating whether the broadcasting spectrum is a limited or nearly limitless resource.

At the heart of debate is a 29-year-old Supreme Court ruling in Red Lion Broadcasting v. FCC that confirmed the scarcity of the spectrum and thus subjected broadcasters to diminished First Amendment protection.

In that decision, a unanimous court recognized the need for government regulation of broadcasting, saying “it is idle to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish.”

FCC Commissioner Michael Powell says that, in Red Lion, the court essentially split the First Amendment in two.

“With respect to the First Amendment standard, there is only one of them,” Powell told an audience at the Freedom Forum last month. “I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendments—one for broadcasting and one for everyone else.”

But Commissioner Gloria Tristani says the limited spectrum prohibits its users from exercising full First Amendment rights.

“No one has a First Amendment right to monopolize a broadcast frequency,” Tristani said. “Unlike newspaper owners, every broadcaster knows going in that his ability to pursue his private interests are constrained by the obligation to serve the public interest.”

Nearly three decades after Red Lion, the scarcity debate is stronger than ever. Those supporting Red Lion say the broadcast spectrum remains limited, while those opposing it say the spectrum is wide open.

“Its basic premises, even if they were tenable at the time of judgment, have long since been eroded by dramatic changes in technology and the structure of mass communications in the United States,” Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, wrote recently. “Yet the basic doctrine of Red Lion simply refuses to die.”

In his essay peppered with references to the “claws” and “teeth” of Red Lion, O'Neil asks “Can Red Lion be lanced?,” suggesting that the FCC in conjunction with the courts could, indeed, put the lion to sleep.

But Tristani and Commissioner Susan Ness both say they aren't convinced that the decision can or should be overturned, especially if such action would require prodding by the FCC.

In a speech last week to the Federal Communications Bar Association, Tristani said she didn't “think the commission should be in the business of questioning the court's judgment.”

She noted that both the Supreme Court and Congress have been hesitant to dismiss the scarcity rationale, even though the FCC declared in the 1987 Syracuse Peace Council v. WTVH case that scarcity was a thing of the past.

“The court and Congress have stuck with the scarcity rationale for good reason,” Tristani said. “Scarcity is clearly still with us. If there's anything I've been made aware of over the last six months on the commission, it's the scarcity of the broadcast spectrum. There are still far more citizens who want to speak over the public airwaves than can be accommodated.”

Ness agrees. She says the enormous response of low-power broadcasters to a recent petition for more licenses is evidence that there is more demand for space than the radio and television dials will allow.

But some argue that government can no longer derive its regulatory power from the scarcity of the spectrum. Such power should come into play only when there's an absence of other effective media, they say, noting that this clearly isn't the case today.

“What matters far more than scarcity is the total effect of all feasible methods for transporting a particular piece of information from the speaker to a prospective audience,” writes Jim Chen in an essay “The Last Picture Show” that appeared in the 1996 Minnesota Law Review.

A spokeswoman for FCC Commissioner Harold Furchgott-Roth echoes Chen, saying that the advent of new technology such as cable and digital television and the Internet dismisses the scarcity rationale.

“Spectrum scarcity is an outdated concept,” according to Helgi Walker, one of Furchgott-Roth's legal advisers. “It certainly is not scarce now—or rather, the opportunities for people to express themselves are certainly not scarce, given the proliferation of communication outlets.”

But Tristani says the talk of Red Lion's demise hasn't altered one key fact: The Supreme Court hasn't changed its mind.

She and Ness note that in several instances where the justices could have nullified the scarcity rationale—namely, Turner Broadcasting System v. FCC in 1994, Times Warner Entertainment v. FCC in 1996 and Reno v. ACLU in 1997—they haven't.

Robert Corn-Revere, former FCC counsel, says a federal appeals court affirmed the FCC's decision about the scarcity rationale in Syracuse Peace Council but the Supreme Court couldn't address the First Amendment issue.

“The lower court didn't touch the constitutional issue, so there was nothing for the Supreme Court to address,” Corn-Revere said. “So Red Lion is still the law.”

Powell says the court system could address the issue again but likely won't until it hears from the commission or Congress that the scarcity rationale is no longer an issue.

“As far back as 1984, the Supreme Court indicated in the League of Women Voters case, that it would await '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,'” Powell said in a recent speech to The Media Institute. “I believe we should be getting those signal fires ready.”