The Future of Red Lion

This is the brief I just prepared for the Consumer Federation of America to the U.S. Supreme Court on the issue of whether the so-called Red Lion doctrine of First Amendment regulation of broadcasters should be re-examined. My favorite passage is:

[T]he presumption of invalidity inherent in petitioners’ argument is flawed. Broadcasters do not remain “singularly constrained,” Pet. at 16, on the ground that there were few speakers 45 years ago. When Red Lion was decided there were hundreds more newspapers in America, half a dozen or more in major cities like New York, national, weekly news and cultural magazines (Life, Look, etc.) and many other sources of information and entertainment that are no longer available in today’s marketplace. Therefore, the “undeniably large increase in the number of broadcast stations and other media outlets” on which the D.C. Circuit and petitioners rely, id. at 18, is immaterial to the economic regulation of broadcast licensees unless — as petitioners dare not suggest, because it is untrue — the increase has lessened the technical need for governmental entry and interference regulation.

Whether there are three or six or ten television stations in a local market, however, does not at all mean there is enough spectrum to accommodate everyone who would like to use the airwaves. What some judges have called “the indefensible notion of spectrum scarcity,” Action For Children?’s Television v. FCC, 105 F.3d 723, 724 n.2 (D.C. Cir. 1997) (Edwards, J., dissenting), is therefore totally true and completely defensible.

[slideshare id=11925599&doc=11-696cfaopp-brief-120308132113-phpapp02&type=d]