ITIF's Kane: FCC Authority Over Broadcast Content 'Unconstitutional'

at the Information Technology and Innovation Foundation, in an essay the Federalist Society posted Tuesday. FCC Chairman Brendan Carr’s actions (see 2502050063) to investigate broadcasters over their content “are permitted within the current state of the law” because of court rulings that broadcasters enjoy fewer First Amendment protections due to spectrum’s scarcity, Kane said. “Those cases, and therefore the FCC’s authority to regulate the content transmitted over radio waves, are based on fundamental fallacies,” he wrote. “Land is scarce, but the fact that the government has granted or auctioned deeds doesn’t permit it to regulate the content of what landowners say.” The law also doesn’t apply the rationale of spectrum scarcity evenly, Kane pointed out. Wi-Fi signals are just as susceptible to interference as broadcast radio signals, he said. “Yet no one would countenance content-based control of all wireless internet traffic, even though the scarcity rationale would apply identically to those types of transmissions.” Supreme Court Justice Clarence Thomas questioned the validity of the spectrum scarcity rationale in his concurrence in FCC v. Fox, Kane said. “Do his colleagues agree?” he asked. “Spectrum is not so special a medium that it should be carved out of the First Amendment,” he wrote. “To the extent that any FCC action or any part of the Communications Act relies on the inverse assumption, it is unconstitutional.”