The Logic of Scarcity: Idle Spectrum as a First Amendment Violation

Abstract

The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused spectrum, but there is good reason to believe that such government-created idle spectrum exists. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This article addresses the question whether the scarcity rationale - or any other reasoning - supports distinguishing spectrum from print such that government actions constricting the supply of spectrum would pass muster.

I argue that the scarcity rationale does not support, and instead undercuts, government actions that limit the use of the spectrum. Government decisions that exacerbate the problems that gave rise to government regulation in the first place subvert the entire justification for lenient review. And no other rationale would distinguish spectrum from print in a way that would support government constraints on the former but not the latter. Commentators have not attended to this question of the constitutional status of idle spectrum, perhaps assuming that National Broadcasting Co. v. United States and Red Lion Broadcasting Co. v. FCC effectively held that all regulation of spectrum is subject to lenient scrutiny. But the cases did not purport to extend so broadly, and there is good reason to conclude that their lenient review would not apply to government actions reducing the availability of spectrum. The appropriate review, I contend, is the intermediate scrutiny ordinarily applied to content-neutral speech regulation. In order to satisfy such scrutiny, the government must put forward an important or substantial government interest. I suggest that in most cases the only interest that would justify a refusal to allocate spectrum is nontrivial interference. I thus conclude that, even if one accepts the current state of the doctrine, the government cannot exclude non-interfering uses from the spectrum.

Keywords: spectrum, scarcity, first amendment

JEL Classification: K23