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FCC & USA v. Fox, et al., No. 10-1293 (Sup. Ct.)

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Released: September 14, 2011
10-1293
IN THE
Supreme Court of the United States
d
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
Petitioners,
--v.--
FOX TELEVISION STATIONS, INC., ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICI CURIAE


YALE LAW SCHOOL INFORMATION SOCIETY

PROJECT SCHOLARS, NEW AMERICA FOUNDATION,

AND PROFESSOR MONROE PRICE

IN SUPPORT OF NEITHER PARTY

PRISCILLA J. SMITH, ESQ.
Counsel of Record
NICHOLAS W. BRAMBLE, ESQ.
INFORMATION SOCIETY PROJECT
YALE LAW SCHOOL
319 Sterling Place
Brooklyn, New York 11238
(718) 399-9241
priscilla.smith@yale.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES..................................... iii
INTEREST OF AMICI CURIAE ...............................1
SUMMARY OF ARGUMENT....................................2
ARGUMENT ..............................................................6

I. The Court Should Limit Its Inquiry to the

Facts and Justifications of Indecency
Regulations Rather Than Using This Case

as a Forum to Examine Unrelated
Controversies Concerning Spectrum Policy.

..............................................................................7

A. When the Federal Communications

Commission Promulgates Indecency

Regulations, The Scarcity Rationale Is

Not Implicated.

.........................................7

B. Indecency Regulations Are Premised

Upon the Rationale Recognized in

Pacifica, Not the Scarcity Rationale
Recognized in Red Lion and Other
Precedents.

..............................................11

II. Despite Criticism, the Scarcity Rationale

Now Occupies a Bedrock Role in
Telecommunications Policy, Underlying a

Wide Variety of Spectrum-Structuring Laws
and Regulations.

.............................................16

A. The Spectrum Scarcity Rationale

Supports Structural Regulations That
Enable Wide Access to Diverse

Information Sources.

............................17
i





B. The Spectrum Scarcity Rationale

Supports Laws Providing Wide

Access to Political and Educational
Information.

............................................19

C. The Scarcity Rationale Enables the

FCC and NTIA to Tailor Spectrum
Policy to Evolving Technological and

Economic Circumstances.

....................21

D. The Court Has Imposed Clear Limits on

the Role of the Scarcity Rationale. ....23

III. Questioning the Scarcity Rationale in Dicta

in This Unrelated Controversy Would
Result In Unexpected, Systemic

Consequences to the Current Model of
Spectrum Allocation, Potentially

Undermining Decades of Precedent
Extending Far Beyond the Repeal of

Indecency Regulations.

.................................26

CONCLUSION

........................................................30

ii





TABLE OF AUTHORITIES

Cases

Action for Children's Television v. FCC,
58 F.3d 654 (D.C. Cir. 1995) (en banc) ............passim
Arizona Free Enterprise Club's Freedom
Club PAC v. Bennett
, 564 U.S. __,
131 S. Ct. 2806 (2011) ..................................16, 21, 25
CBS v. FCC, 453 U.S. 367 (1981) ....................passim
Citizens United v. Federal Election Comm'n,
130 S.Ct. 876 (2010) ...........................................20, 21
Denver Area Educ. Telecomm. Consortium
v. FCC
, 518 U.S. 727 (1996)...............................13, 15
Dickerson v. United States, 530 U.S. 428
(2000) ........................................................................29
FCC v. Allentown Broadcasting Corp.,
349 U.S. 358 (1958) ..................................................18
FCC v. Fox Television Stations, Inc., 556 U.S. __, 129
S. Ct. 1800 (2009) .......................................................1
FCC v. League of Women Voters of California,
468 U.S. 364 (1984) ..................................................24
FCC v. Nat'l Citizens Comm. for
Broad.
, 436 U.S. 775 (1978). ............................passim
FCC v. Pacifica Found., 438 U.S. 726
(1978) ................................................................passim
Forsyth County, Georgia v. Nationalist
Movement, 505 U.S. 123 (1992) ...............................27
iii





Fox v. FCC, 613 F.3d 317 (2d. Cir. 2010) ................13
Greater New Orleans Broadcasting
Ass'n v. FCC, 527 U.S. 173 (1999) ...........................24
Hague v. CIO, 307 U.S. 496 (1939)..........................27
Kremens v. Bartley, 431 U.S. 119 (1977) .................10
McConnell v. Federal Election Comm'n,
540 U.S. 93 (2003) ....................................................19
Motor Vehicle Mfrs. Ass'n v. State Farm
Mut. Auto. Ins. Co.
, 463 U.S. 29 (1983). ..................11
Mt. Mansfield Television, Inc. v. FCC,
442 F.2d 470 (2d Cir. 1971)......................................17
NBC v. United States, 319 U.S. 190 (1943) .....3, 6, 26
News America Publishing Inc. v. FCC,
844 F.2d 800 (D.C. Cir. 1988) ..................................24
Pacific Gas & Elec. Co. v. Public Util. Comm'n of
Cal.
, 475 U. S. 1 (1986). ...........................................20
Prometheus Radio Project v. FCC,
373 F.3d 372 (3d Cir. 2004)......................................17
Red Lion Broadcasting Co. v. FCC,
395 U.S. 367 (1969) ..........................................passim
Sable Communications v. FCC,
492 U.S. 115 (1989) ..................................................14
Syracuse Peace Council v. FCC,
867 F.2d 654 (D.C. Cir. 1989) ..................................25
iv





Time Warner Entm't Co., L.P. v. FCC,
93 F.3d 957 (D.C. Cir 1996) .....................................17
Turner Broadcasting Sys., Inc. v. FCC,
512 U.S. 622 (1994) ............................................14, 28

Statutes, Regulations and Legislative Materials

Communications Act, 47 U.S.C. 315.....................20
18 U.S.C. 1464 .........................................................8
47 C.F.R. 15.5 ........................................................23
Amendment of Section 3.606 of Comm'n's
Rules & Regulations, Sixth Report &
Order, 41 F.C.C. 148 (1952) .....................................18
Complaints Against Various Broadcast
Licensees Regarding Their Airing of the
``Golden Globe Awards'' Program, 19
F.C.C.R. 4975 (2004) ................................................11
Complaints Regarding Various Television
Broadcasts Between February 2, 2002
and March 8, 2005, 21 F.C.C.R. 2664 (2006) ..........11
Complaints Regarding Various Television
Broadcasts Between February 2, 2002
and March 8, 2005, 21 F.C.C.R. 13299 (2006).........11
Service Rules for the 698-746, 747-762,
and 777-792 MHz Bands, Second Report
& Order, 22 F.C.C.R. 15,289 (Aug. 10, 2007) ..........22
Unlicensed Operation in the TV Broadcast Bands,
Additional Spectrum for Unlicensed Devices Below
v





900 MHz and in the 3 GHz Band, Second
Memorandum Opinion & Order, 25 FCC Rcd 18,661
(Sept. 23, 2010)...................................................27, 29

Miscellaneous

Sascha D. Meinrath & Michael Calabrese,
Unlicensed "White Space Device"
Operations on the TV Band and the
Myth of Harmful Interference
(Mar. 2008),
available at http://www.newamerica.net/files/
WSDBackgrounder.pdf. ...........................................28
Eli Noam, Spectrum Auction: Yesterday's
Heresy, Today's Orthodoxy, Tomorrow's
Anachronism. Taking the Next Step to

Open Spectrum Access, 41 J. LAW
& ECON. 765 (1998)...................................................22

vi





INTEREST OF AMICI CURIAE1

Amici include Yale Law School Information
Society Project scholars, the New America
Foundation, and Professor Monroe Price, a First
Amendment and media scholar.2
The Information Society Project at Yale Law
School (ISP) is an intellectual center addressing the
implications of new information technologies for law
and society. Marvin Ammori, a Visiting Scholar at
Stanford Law School and an Affiliated Fellow of the
Yale ISP, publishes in First Amendment and
Internet policy. Nicholas Bramble, a Lecturer in Law
at Yale Law School and Director of the Law and
Media Program at the Yale Law School ISP, has
written articles on First Amendment law and
information policy.

1 No counsel for a party authored this brief in whole or in part,
and no person or entity other than amici and their counsel
made any monetary contribution toward the preparation or
submission of this brief. Counsel for the respondents, on June
28, 2011, June 29, 2011, and July 1, 2011, and counsel for the
petitioners, on July 8, 2011, have filed in this Court consent to
the filing of amicus curiae briefs in support of either party or of
neither party in fulfillment of S. Ct. Rule 37.3. This brief was
written by Nicholas Bramble, Lecturer in Law at Yale Law
School and Director of the Law and Media Program at the
Information Society Project at Yale Law School, under the
supervision of the undersigned Senior Fellow of the ISP,
Priscilla Smith. Portions of this brief are derived from a brief
written by Marvin Ammori and submitted to the Court in FCC
v. Fox Television Stations, Inc., 556 U.S. __, 129 S. Ct. 1800
(2009).
2 The amici participate in this case in their personal capacity;
titles are used only for purposes of identification.
1





The New America Foundation is a nonprofit,
nonpartisan public policy institute that invests in
new thinkers and new ideas to address the next
generation of challenges facing the United States.
One of its major projects is the Wireless Future
Project, which develops and advocates policy
proposals to promote universal, affordable and
ubiquitous broadband and improve the public's
access to critical wireless communication
technologies.
Monroe Price, now a professor at the University
of Pennsylvania's Annenberg School for
Communication, was dean of Cardozo School of Law
from 1982 to 1991. He is the author of several books
on free speech and new media.

SUMMARY OF ARGUMENT

This case rests on a fairly narrow question
concerning the constitutionality of broadcasting
regulations designed to suppress and censor indecent
speech. However, parties on both sides of this case
have argued that this Court, in addressing such
indecency regulations, should consider a much
broader set of constitutional rationales for spectrum
regulation. Broadcasters explicitly suggest that the
"scarcity rationale" is properly before the Court.
Amici submit this brief in support of neither party to
stress that this overreaching is both unnecessary and
unwise.
2





First, this Court's decision in FCC v. Pacifica3
squarely addresses the constitutionality of indecency
regulations and does not rely on the scarcity
rationale. The Court can and should review the
continuing vitality of Pacifica without questioning
other lines of this Court's precedent wholly unrelated
to indecency regulation. Simply put, the scarcity
rationale associated with Red Lion v. FCC,4 NBC v.
United States,5 FCC v. Nat'l Citizens Comm. for
Broad.
,6 and CBS v. FCC7 is wholly irrelevant to this
case. The Court should follow its prudential rule of
avoiding constitutional questions irrelevant to the
case or controversy before this Court and merely
address the indecency issue actually before the
Court.
Moreover, a dispute over broadcasting indecency
regulations offers an extremely ill-suited forum for
revisiting the scarcity rationale and needlessly
hurling into doctrinal chaos all of the spectrum
policy that rationale supports. This rationale has
never been invoked as a basis for indecency
regulation. Indeed, Justice Brennan's dissent in
Pacifica commends the majority, with which he
disagrees, for understanding that the scarcity
rationale is not relevant to indecency regulation.
Nothing in the scarcity rationale underpinning Red

3 FCC v. Pacifica Found., 438 U.S. 726 (1978).
4 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
5 319 U.S. 190 (1943).
6 436 U.S. 775 (1978).
7 453 U.S. 367 (1981).
3





Lion, NBC v. U.S., and other Court precedents
justifies governmental decisions to engage in
censorship or suppression of certain viewpoints.
Casting doubt on the scarcity rationale would
inject uncertainty into a wide variety of actions that
the government adopted by government in reliance
on that rationale. These actions, many of which have
been upheld by this Court, include imposing
ownership limits and universal service obligations,
promoting diverse uses of spectrum, experimenting
with the limited authorization of unlicensed
spectrum usage, implementing new economic models
for the allocation of spectrum, providing equal time
for political candidates, and so on. These laws
generally attempt to broaden access to spectrum
rights for more speakers, and are easily
distinguishable from the suppression of speech
evident in indecency regulations. It is for this reason,
in fact, that this Court has clearly held that
indecency regulations do not rely on the scarcity
rationale implicated by these other governmental
decisions.
The scarcity rationale forms the backdrop for all
spectrum regulation, from television broadcasting to
mobile Internet services. It suggests that because
there are constraints on the availability and
simultaneous usage of spectrum, the government
must play a role in allocating rights to this spectrum,
and the government may pursue allocations that
ensure the widest availability of diverse and
antagonistic sources of speech. Compared to other
justifications for First Amendment scrutiny of
spectrum licensing decisions, the scarcity rationale
provides greater leeway for governmental decisions
4





to promote nondiscriminatory, universal access to
diverse sources of speech.
While scarcity was a rationale in the Red Lion
decision, which upheld a fairness doctrine repealed
almost 25 years ago, many other decisions also rely
on scarcity. For example, the government is
currently seeking to auction billions of dollars of
spectrum both to address debt obligations and to
transfer more spectrum from older technologies like
broadcast television to modern technologies
including mobile Internet access. When the
government seeks to auction this spectrum, it will
decide among a range of auction mechanisms
(possibly including two-sided auctions with
broadcasters) and will impose rules ranging from
nondiscrimination rules to build-out and service
obligations. Such decisions enable spectrum to be
used widely and effectively for a range of purposes.
Without the scarcity rationale, these speech-focused
government regulations might be subject to intrusive
judicial second-guessing.
Even though, under this Court's precedent,
indecency regulation does not implicate the scarcity
rationale at all, several parties before the Court use
this appeal of an indecency order to argue that the
scarcity rationale for limiting judicial scrutiny of
spectrum allocations has faded in importance. But a
case concerning indecency regulations presents a
dangerously underdeveloped vehicle for evaluating,
questioning, or updating the rationales underlying
spectrum regulation. Given that scarcity currently
serves as the primary justification for the
government's attempts to allocate spectrum and
balance the claims of competing users, any effort by
5





the Court to evaluate this rationale requires more
consideration than passing references in this case's
briefs could ever provide.
Evaluation of this rationale should occur in the
context of a proceeding that actually relies upon the
scarcity rationale. Such a proceeding would offer the
opportunity for greater analysis of the factual
predicates for this rationale, and would give parties
the chance to describe alternative rationales upon
which the government might rely in allocating and
structuring spectrum usage.

ARGUMENT


Amici caution the Court not to undermine the
continuing vitality of the scarcity rationale
underlying Red Lion v. FCC, NBC v. United States,
FCC v. Nat'l Citizens Comm. for Broad., and CBS v.
FCC
when determining whether the Federal
Communications Commission's context-based
approach to determining indecency is
unconstitutionally vague. The Court may wish to
extend its analysis beyond vagueness in order to
examine prior justifications for limiting the degree of
First Amendment scrutiny applied to broadcasting
indecency regulations. But in evaluating the broader
constitutionality of indecency regulations, which
have heretofore been justified solely by the
pervasiveness of broadcasting, its intrusive nature,
and its accessibility to children, the Court need not
examine the rationales underlying other broadcast
decisions.

6






The scarcity rationale does not serve as a
justification for indecency regulations and has not
served as a justification for the FCC's actions in
these proceedings. To question the scarcity rationale
in this case would cast doubt upon every spectrum
license and jeopardize a broad range of complex
spectrum-structuring actions entirely unrelated to
the promulgation of indecency regulations.

I. The Court Should Limit Its Inquiry to the
Facts and Justifications of Indecency

Regulations Rather Than Using This Case as a

Forum to Examine Unrelated Controversies
Concerning Spectrum Policy.


This Court's limited scrutiny of broadcasting
indecency regulations has heretofore been justified
by a set of rationales--pervasiveness, intrusiveness,
and accessibility to children--having to do with the
characteristics of broadcast media, not the scarcity of
the spectrum on which that media is transmitted.
The "scarcity rationale," which has never served as a
justification for indecency regulations, is not at issue
in this case. The Court should confine its analysis of
the constitutionality of indecency regulations to the
actual rationales that have been used to support
such regulations.

A.

When the Federal Communications
Commission Promulgates

Indecency Regulations, The
Scarcity Rationale Is


Not Implicated.



7





The government structures spectrum licenses
in numerous ways. Typically, the government
employs a wide range of spectrum allocation
decisions, auctions, ownership limits, and
authorizations of unlicensed use to ensure that those
who obtain access to spectrum are not creating
interference and are promoting wide access by the
public to diverse and antagonistic sources of speech.8
In a narrower range of cases,9 the government seeks
to condition spectrum licenses upon an obligation to
stamp out indecent or obscene speech.10 With the
former set of actions, the government is attempting
to add speech and speakers into the mix available to
the public. With the latter set of actions, the
government is attempting to remove certain kinds of
speech from the mix.11

Two different lines of precedent govern the
constitutionality of these two different sets of
governmental actions.12 Under Red Lion and

8 See, e.g., CBS, Inc. v. FCC, 453 U.S. 367 (1981).
9 See, e.g., Action for Children's Television v. FCC, 58 F.3d 654,
658 (D.C. Cir. 1995) (en banc).
10 See, e.g., 18 U.S.C. 1464 (prohibiting the broadcasting of
indecent language).
11 See, e.g., Action for Children's Television, 58 F.3d at 658
(describing regulations that "ban[] all broadcasts of indecent
material").
12 Compare FCC v. Pacifica Found., 438 U.S. 726 (1978)
(upholding the FCC's fine for a radio broadcast of George
Carlin's "Seven Dirty Words" monologue) with Red Lion
Broadcasting Co. v. FCC
, 395 U.S. 367, 390 (1969) (articulating
a less rigorous standard of scrutiny for broadcasting laws or
8





associated cases, constraints on the availability of
spectrum justify governmental policies that ensure
spectrum is used widely and effectively for a range of
purposes. By contrast, under Pacifica and associated
cases, the characteristics of broadcasting--including
its pervasiveness, intrusiveness, and accessibility to
children--have justified censorship of certain kinds
of disfavored speech.13 It is important to maintain a
firm distinction between these two lines of precedent,
given that one is primarily about the addition of
speech and serves to support numerous technical
spectrum-allocation policies, while the other is
primarily concerned with the suppression of speech
in a narrower range of contexts.

Yet broadcast network respondents, in their
opposition to the government's petition for certioriari
in this case, indicated that they plan to bring up
"fundamental questions" relating to "the underlying
constitutionality of regulating broadcast speech" as
well as "whether the Court's decisions in Pacifica
and Red Lion should be overruled."14 ABC argues
that "developments since Red Lion have rendered
the predicate for that decision untenable today" and

regulations that promote the wide dissemination of diverse
content).
13 Pacifica, 438 U.S. at 748-49; see also Action for Children's
Television
, 58 F.3d at 660-61 (identifying governmental
interests in "support for parental supervision of children" and
"a concern for children's well-being" as sufficient to support
indecency regulations).
14 Brief in Opp'n of Fox, On Petition for a Writ of Certiorari, No.
10-1293, May 23, 2011, at 27.
9





suggests that the Court subject all "content-based
restrictions on broadcasters' expression" to strict
scrutiny.15 The government itself attempts to link
Red Lion and the spectrum-scarcity rationale to this
case by describing scarcity as one of three primary
justifications--along with the pervasive presence of
broadcast media and the unique accessibility of such
media to children--for limited First Amendment
scrutiny of a requirement that licensees "accept
content-based restrictions that could not be imposed
on other communications media."16

In seeking review of these "fundamental
questions," respondents are attempting to bootstrap
their opposition to the Pacifica indecency regime into
a much broader attack upon the FCC's ability to
structure spectrum licenses. Petitioners, meanwhile,
attempt to frame this case around fundamental
questions about the sources of authority for
broadcast regulation, rather than defending
indecency regulations solely on the narrower
"pervasive and uniquely accessible" rationales set
forth in Pacifica. But both sides reach far beyond the
facts of this case. The Court need not and should not
deal with these broader theoretical questions when it
is capable of tethering its analysis to the facts and
rationales of the indecency regulations presently
before it.17 This case concerns the constitutionality of

15 Brief in Opp'n of ABC, Inc. et al., On Petition for a Writ of
Certiorari, No. 10-1293, May 23, 2011, at 30, 32.
16 Pet'r's Br. 42-44.
17 See Kremens v. Bartley, 431 U.S. 119, 136 (1977) ("[The]
Court will not formulate a rule of constitutional law broader
10





regulations that suppress speech, not the
constitutionality of rules and requirements that
promote wider access by the public to more diverse
types of speech. To support this distinction in its
analysis of the constitutionality of indecency
regulations, the Court should train its attention on
Pacifica, not on Red Lion.

B.

Indecency Regulations Are
Premised Upon the Rationale

Recognized in Pacifica, Not the
Scarcity Rationale Recognized in

Red Lion and Other Precedents.



Although Red Lion, NBC v. United States,
FCC v. NCCB, and CBS v. FCC rest upon a set of
rationales that have been the subject of strenuous
academic debate, these rationales are simply not at
issue in this case, and this case does not present a
proper vehicle for questioning such rationales.

First, the FCC did not rely upon the scarcity
rationale of Red Lion in issuing the broadcasting
indecency orders at issue here.18 This Court cannot

than is required by the precise facts to which it is to be
applied.").
18 See Complaints Regarding Various Television Broadcasts
Between February 2, 2002 and March 8, 2005, 21 FCC Rcd
2664 (2006); Complaints Against Various Broadcast Licensees
Regarding Their Airing of the ``Golden Globe Awards'' Program,
19 FCC Rcd 4975, at 3 n.4 (2004); Complaints Regarding
Various Television Broadcasts Between February 2, 2002 and
March 8, 2005, 21 FCC Rcd 13299, n.18 (2006).
11





supply and then evaluate a basis for the FCC's
actions that the FCC itself did not provide.19

Second, this Court has explicitly rejected the
FCC's attempt to offer the Red Lion scarcity
rationale as a basis for its indecency regulations.
Justice Brennan, dissenting in Pacifica, approvingly
described the majority's rejection of scarcity as a
basis for indecency regulation: "The opinions . . .
rightly refrain from relying on the notion of
`spectrum scarcity' to support their result. . . .
`[A]lthough scarcity has justified increasing the
diversity of speakers and speech, it has never been
held to justify censorship.'"20

Third, this Court has cited three primary
reasons for limiting its scrutiny of government
regulation of broadcasters' indecent speech: the
broadcast media "have established a uniquely
pervasive presence in the lives of all Americans,"
"confront[] the citizen . . . in the privacy of the home,"
and are "uniquely accessible to children, even those
too young to read."21 Pacifica thus squarely
articulates the rationale for broadcasting indecency
regulations. Because this case concerns the
constitutionality of such indecency regulations, the
rationales in Pacifica for limited scrutiny of
indecency regulations are now open to reanalysis.
The Court may wish to consider whether

19 See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.
Co.
, 463 U.S. 29, 43 (1983).
20 Pacifica, 438 U.S. at 770 n.4.
21 Id. at 748-49.
12





broadcasting retains its characteristics of
pervasiveness, intrusiveness, and accessibility to
children, particularly in light of the diminishing
power of broadcasting in a world with countless new
sources of information and media distribution.22

But these rationales for limiting scrutiny of
indecency regulations--pervasiveness, intrusiveness,
and accessibility to children--are absent from cases
that justify the constitutionality of spectrum
regulations. Red Lion rests on a different set of
bases: "the scarcity of broadcast frequencies," the
government's "role in allocating" those frequencies,
and the "legitimate claims" of competing "possible
users."23 In a case concerning the constitutionality of
regulations designed to suppress and censor indecent
speech, it is the rationales in Pacifica, not those in
Red Lion, that are at issue.

Fourth, the Court has articulated two starkly
different approaches towards speech in Pacifica and
Red Lion. The line of precedent associated with
Pacifica is about censorship and suppression of

22 See Fox v. FCC, 613 F.3d 317, 326 (2d. Cir. 2010) ("[W]e face
a media landscape that would have been almost unrecognizable
in 1978. Cable television was still in its infancy. The Internet
was a project run out of the Department of Defense with several
hundred users. . . . The same cannot be said today. The past
thirty years has seen an explosion of media sources, and
broadcast television has become only one voice in the chorus.").
23 395 U.S. at 400-01.
13





indecent speech.24 In Red Lion, by contrast, the
Court was not concerned with censorship of speech.25
Red Lion focused on something different: the
addition and diversification of speech.26 The point of
Red Lion and associated cases is that when (a) there
are constraints on the availability of spectrum and
(b) the government is responsible for allocating this
spectrum, the government can try to ensure that this
spectrum facilitates diverse, antagonistic, and high-
value speech. Such cases pertain to communications
laws and regulations that are designed to promote
the availability of diverse and antagonistic sources of
information and the wide distribution of this
information to all members of the public.27

Fifth, the two lines of cases rest on different
and sometimes incompatible governmental interests.
Pacifica and related cases set forth a governmental
interest--protecting children from harmful
information--squarely related to the regulations at

24 See, e.g., Action for Children's Television, 58 F.3d at 660;
Denver Area Educ. Telecomm. Consortium v. FCC, 518 U.S.
727, 743-47 (1996) (Breyer, J., plurality).
25 See 395 U.S. at 396 (declining to address whether the First
Amendment authorizes "government censorship of a particular
program").
26 Id. at 401 n.28 (freedom of speech is not abridged where the
government "directly or indirectly multipl[ies] the voices and
views presented to the public.").
27 See, e.g., Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622,
663 (1994) (summarizing the underlying principle of
communications laws and policies "that the dissemination of
information from diverse and antagonistic sources is essential
to the welfare of the public").
14





issue in this case.28 The Court acknowledged a
separate set of governmental interests in Red Lion:
ensuring public access to "the widest dissemination
of diverse and antagonistic sources," allowing the
public to "receive suitable access to social, political,
esthetic, moral and other ideas and experiences," and
promoting effective use of the spectrum for
communication.29 These governmental interests in
promoting wide access to diverse speech are
unrelated to the suppression of speech and the
protection of children.

Finally, the laws that have been built up
around these two contrasting lines of cases differ in
their focus and function. The constitutional holding
in Pacifica justifies laws or regulations that allow
the government to engage in suppression of certain
content or viewpoints.30 In contrast, Red Lion
justifies (1) laws structuring the media environment
to ensure the widest dissemination of information
from diverse sources (such as ownership limits,
must-carry rules, and universal service mandates);
(2) laws ensuring an informed citizenry through
promotion of political, educational, or noncommercial
information; and (3) spectrum policy rules governing
technologies as diverse as satellite television and the
wireless internet. The laws enabled by Pacifica

28 See Sable Communications v. FCC, 492 U.S. 115, 126 (1989).
29 Red Lion, 395 U.S. at 360.
30 See e.g., Action for Children's Television v. FCC, 58 F.3d 654,
660 (D.C. Cir. 1995) (en banc); Denver Area Educ. Telecomm.
Consortium v. FCC, 518 U.S. 727, 743-47 (1996) (Breyer, J.,
plurality).
15





target and restrict speech, whereas the structural
laws and regulations enabled by Red Lion support
wide access to diverse speech.


II. Despite Criticism, the Scarcity Rationale

Now Occupies a Bedrock Role in

Telecommunications Policy, Underlying a Wide
Variety of Spectrum-Structuring Laws and

Regulations.


If this Court concludes that justifications for
limited scrutiny of indecency regulations are no
longer sustainable, such a conclusion should not
affect the constitutional status of laws and
regulations premised on the spectrum-scarcity
rationale associated with Red Lion. If anything, the
reevaluation of the constitutional basis for indecency
regulations--in conjunction with the repeal of other
regulations that had the potential to reduce media
diversity and accessibility--offers an opportunity to
clarify that the rationales for censorious broadcast
regulation are irrelevant to the rationales for
spectrum access regulation in general.

Red Lion and its associated line of cases serve
as bedrock precedent for several classes of laws, all of
which differ from indecency regulations and enable
what this Court recently reaffirmed as a guiding
First Amendment principle: "the unfettered
exchange of ideas" in a variety of forums.31 Revisiting

31 See Arizona Free Enterprise Club's Freedom Club PAC v.
Bennett, 564 U.S. __, 131 S. Ct. 2806 (2011) (citing Buckley v.
Valeo
, 424 U. S. 1, 14 (1976)).
16





or questioning Red Lion in this proceeding would
have numerous unpredictable effects upon these
foundational laws governing United States media,
spectrum, and Internet policy.

A.

The Spectrum Scarcity Rationale

Supports Structural Regulations
That Enable Wide Access to Diverse

Information Sources.



The spectrum scarcity rationale underpins a
wide variety of laws and regulations--including
ownership limits, access rules, and universal service
rules--that attempt to foster broad access to
communications tools and broad distribution of
information via those tools.

Relying in part on the Red Lion interest in
fostering diverse and antagonistic sources of
information, this Court and lower courts have upheld
broadcast media ownership limits32 and must-carry
rights.33 In Turner Broadcasting Sys., Inc. v. FCC,
which relied on the spectrum scarcity rationale,34 the

32 See, e.g., FCC v. NCCB, 436 U.S. at 802; Prometheus Radio
Project v. FCC
, 373 F.3d 372 (3d Cir. 2004); Mt. Mansfield
Television, Inc. v. FCC
, 442 F.2d 470, 476-77 (2d Cir. 1971)
(upholding financial interest and syndication rules and prime
time access rules);
33 Time Warner Entm't Co., L.P. v. FCC, 93 F.3d 957, 975-79
(D.C. Cir 1996).
34 512 U.S. at 637 ("As a general matter, there are more would-
be broadcasters than frequencies available in the
electromagnetic spectrum. And if two broadcasters were to
attempt to transmit over the same frequency in the same locale,
17





Court held that "assuring that the public has access
to a multiplicity of information sources is a
governmental purpose of the highest order, for it
promotes values central to the First Amendment."35
And relying on the separate Red Lion interest in
promoting the wide dissemination of information,
this Court has upheld the FCC's attempt to
implement universal service goals36 through its
allocation of broadcast licenses.37

Unlike indecency laws, these structural laws
and regulations do not suppress disfavored content,
and have been subject to only minimal First
Amendment scrutiny. Questioning the spectrum
scarcity rationale in this case would, as discussed
infra, likely lead to unintended and wide-ranging
consequences for a range of laws and regulations
unrelated to those at issue in this case.38

they would interfere with one another's signals, so that neither
could be heard at all.").
35 Id. at 663.
36 See, e.g., Amendment of Section 3.606 of Comm'n's Rules &
Regulations, Sixth Report & Order, 41 F.C.C. 148, 167 (1952)
(providing as the first three priorities of allocation: "(1) To
provide at least one television service to all parts of the United
States. (2) To provide each community with at least one
television broadcast station. (3) To provide a choice of at least
two television services to all parts of the United States.").
37 FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 360
(1958).
38 See infra Part III.
18





B.

The Spectrum Scarcity Rationale
Supports Laws Providing Wide

Access to Political and Educational
Information.



Second, Red Lion retains precedential value
for laws that seek to promote an informed electorate
through encouraging the provision of wide access to
political, educational, and noncommercial
programming. Many such laws are currently in
place.
In CBS, Inc. v. FCC, the Court upheld the
requirement that broadcasters grant access to
federal candidates, because the rule promoted "the
ability of candidates to present, and the public to
receive, information necessary for the effective
operation of the democratic process."39 This Court
has permitted governmental efforts "to enhance the
volume and quality of coverage of public issues
through regulation of broadcasting."40 And Red Lion
served as one basis for the implementation of a
campaign disclosure requirement,41 which this Court
has noted "can provide shareholders and citizens

39 453 U.S. at 396.
40 FCC v. Nat'l Citizens Comm. for Broad., 436 U.S. at 800, 802
(upholding broadcasting ownership limitations as reasonable
means to "enhance the diversity of information heard by the
public").
41 McConnell v. Federal Election Comm'n, 540 U.S. 93, 237, 240-
41 (2003) (reasoning that record-keeping requirements would
assist in determining whether "broadcasters are too heavily
favoring entertainment, and discriminating against broadcasts
devoted to public affairs").
19





with the information needed to hold corporations and
elected officials accountable for their positions and
supporters."42

Even laws that more directly solicit diverse
speech, such as equal time provisions, are dependent
upon the scarcity rationale. Section 315 of the
Communications Act, for instance, states that "[i]f
any licensee shall permit any person who is a legally
qualified candidate for any public office to use a
broadcasting station, he shall afford equal
opportunities to all other such candidates for that
office in the use of such broadcasting station."43

Such laws are best seen as speech-promoting
alternatives to the direct regulation of political
speech. Rather than suppressing or chilling speech,
Section 315, which seeks to give lower-cost time to a
broader array of candidates and thereby increase
decentralized public participation in the political
process, helps ensure that no candidate or issue is
"free from vigorous debate."44 Impeding the operation
of this law would harm discussion of public issues by
narrowing the scope of political speech to those
candidates and those issues that a small handful of
broadcasters deemed worthy of airtime.


42 Citizens United v. Federal Election Comm'n, 130 S.Ct. 876,
916 (2010).
43 47 U.S.C. 315.
44 See Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal.,
475 U. S. 1, 14 (1986).
20





As this Court has recently affirmed,
"`[d]iscussion of public issues and debate on the
qualifications of candidates are integral to the
operation' of our system of government."45 "The right
of citizens to inquire, to hear, to speak, and to use
information to reach consensus is a precondition to
enlightened self-government and a necessary means
to protect it."46 Red Lion and associated cases
support the creation of infrastructure in which this
right can be effectively exercised. Questioning the
scarcity rationale would risk dismantling this
infrastructure by casting serious doubt upon laws
and policies that ensure the doors to debate are open
and the discussions taking place therein are vigorous
and antagonistic. This case, narrowly concerned with
the constitutionality of indecency regulations, does
not represent a useful forum for considering such
consequences.

C.

Red Lion Enables the FCC and
NTIA to Tailor Spectrum Policy to
Evolving Technological and

Economic Circumstances.



Third, beyond structural rules and political
and educational access rules, a large number of the
government's spectrum policies also rest upon
rationales articulated in Red Lion and associated
cases. The FCC structures spectrum for private use,
while the National Telecommunications and

45 Arizona Free Enterprise Club, 564 U.S. at __, 131 S.Ct. __
(quoting Buckley v. Valeo, 424 U.S. 1, 14 (1976)).
46 Citizens United, 130 S.Ct. at 898.
21





Information Administration allocates, assigns, and
regulates government spectrum. The framework of
Red Lion continues to allow these agencies to take
into consideration a wide-ranging set of regulatory
choices when adapting spectrum licenses to private
and governmental parties.

Red Lion enables the FCC to experiment with
different possible technical and economic plans in
structuring spectrum allocation and use. The FCC
can tailor different licenses to different types of use,
including terrestrial radio broadcasting, terrestrial
television broadcasting, satellite television
broadcasting, satellite radio broadcasting, wireless
cell phone networks, taxi dispatching, public safety,
unlicensed uses, and microwaves. It can assign
licenses via comparative hearings, lotteries, auctions,
and on a first-come first-served basis. It can exercise
its authority to clear bands of existing users to
enable new uses.47

Beyond licensing, the FCC has used its
spectrum policy authority to authorize a variety of
"unlicensed" uses of spectrum. Rather than assigning
licenses to particular users, these allocations of
unlicensed spectrum rely upon "smart radios"
possessed by end users that are capable of managing
interference on their own using advanced computing

47 See, e.g., Service Rules for the 698-746, 747-762, and 777-792
MHz Bands, Second Report & Order, 22 FCC Rcd 15,289,
15,296 (Aug. 10, 2007) ("The DTV Act set a firm deadline of
February 17, 2009 for the 700 MHz Band spectrum to be
cleared of analog transmissions and made available for public
safety and commercial services as part of the DTV transition.").
22





technologies.48 A large variety of laptops and mobile
telephones today, for instance, are equipped with wi-
fi radios that enable wireless connections to Internet
routers. The FCC has a minimal certification process
in place to ensure that these and other devices can
take advantage of the broad potential uses of
unlicensed spectrum without creating interference.49

As spectrum becomes increasingly important
to the satisfaction of basic communications needs,
and as control over existing spectrum becomes more
concentrated, it becomes correspondingly important
for the government to have the tools it needs to
ensure broad and open access to this communications
capability.

It would be particularly unfortunate if, in a
case about the constitutionality of broadcast
indecency regulations, the Court inadvertently
undermined the authority for these technical policy
decisions and handcuffed the FCC's broad, flexible
mandate to regulate the spectrum to serve the
public's interest.

D.

When the Federal Communications

Commission Promulgates
Indecency Regulations, The


48 See Eli Noam, Spectrum Auction: Yesterday's Heresy, Today's
Orthodoxy, Tomorrow's Anachronism. Taking the Next Step to
Open Spectrum Access
, 41 J. LAW & ECON. 765, 778-80 (1998)
(discussing how to enable dynamic real-time markets in
spectrum usage).
49 See, e.g., 47 C.F.R. 15.5.
23





Scarcity Rationale Is


Not Implicated.



Nothing in the rationale for the laws and
regulations listed above should be understood to
justify laws that support the censorship or
suppression of certain viewpoints. Were the
government to use Red Lion as a pretext to target
and suppress particular views and particular
content, courts can rely upon heightened standards
of First Amendment scrutiny for laws or regulations
that suppress editorializing,50 commercial speech,51
indecency,52 and particular political viewpoints.53
This particular case--and the effort to evaluate the
constitutionality of censorship and content
regulation separately from the constitutionality of
access and structural regulation--is in large part
about ensuring that the government does not engage
in censorship under the cover of decisions regarding
spectrum licensing and access.

Some have argued that Red Lion serves to
justify viewpoint- and content-based restrictions of
speech based on the Court's approving references to
the fairness doctrine in that case. But Red Lion is

50 See FCC v. League of Women Voters of California, 468 U.S.
364 (1984).
51 See, e.g., Greater New Orleans Broadcasting Ass'n v. FCC,
527 U.S. 173 (1999).
52 See Action for Children's Television v. FCC, 58 F.3d 654, 660
(D.C. Cir. 1995) (en banc).
53 See News America Publishing Inc. v. FCC, 844 F.2d 800 (D.C.
Cir. 1988).
24





not the fairness doctrine. Indeed, in Red Lion, the
Court said it would revisit the issue of the fairness
doctrine's constitutionality if evidence demonstrated
that the doctrine reduced, rather than enhanced, the
quality and diversity of political coverage.54 When
the fairness doctrine was later repealed, neither the
FCC nor courts suggested that Red Lion itself should
be overturned.55

With the repeal of the personal attack rule
and the fairness doctrine, the government took
affirmative steps to ensure that spectrum access
policies could be justified without reference to
regulations that censor, target certain viewpoints, or
seek to level a playing field.56 In separating its
analysis of the justification for indecency regulations
from any analysis of the spectrum scarcity rationale,
the Court can continue to maintain this firm
distinction between censorship-promoting rationales
and access-promoting rationales. Maintaining the
separateness of these rationales will ensure that this
case does not inadvertently hinder Congress, the
FCC, and the NTIA from tailoring longstanding

54 395 U.S. at 393 ("And if experience with the administration of
these 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.").
55 See, e.g., Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.
Cir. 1989).
56 Cf. Arizona Free Enterprise Club, 564 U.S. at __ ("We have
repeatedly rejected the argument that the government has a
compelling state interest in `leveling the playing field' that can
justify undue burdens on political speech.").
25





public interest concerns to the challenges brought
about by new technologies and communications tools.

III. Questioning the Scarcity Rationale in

Dicta in This Unrelated Controversy Would

Result In Unexpected, Systemic Consequences
to the Current Model of Spectrum Allocation,

Potentially Undermining Decades of Precedent
Extending Far Beyond the Repeal of Indecency

Regulations.


Any reconsideration of the scarcity rationale
for spectrum allocation and regulation should occur
in the context of a proceeding that tees up the
numerous complex issues that would arise in the
event that the current rationale for spectrum
licensing were undermined. These complex
technological and legal issues include: whether
current allocations of spectrum are defensible under
strict scrutiny; whether any shift away from
spectrum licensing should involve the assignment of
property rights in spectrum or the facilitation of
unlicensed uses of spectrum; how to handle the
sudden jeopardization of thousands of spectrum
licenses conferred by the FCC or held by the
government; and other unforeseeable consequences
of the abandonment of relied-upon rules of the road.

Questioning the justifications for Red Lion,
NBC v. United States, FCC v. NCCB, and CBS v.
FCC in a case where these issues have not been
properly briefed would both distract from the
reevaluation of the constitutional basis for limited
First Amendment scrutiny of indecency regulations
and likely generate wide-ranging unintended effects.
26






First, if the scarcity rationale were deemed an
invalid basis for spectrum licensing, any licenses to
use spectrum to engage in speech would be subject to
a more rigorous standard of scrutiny, given the
general presumption that the government should not
be in the business of licensing speakers.57 If the
standard in Forsyth County were held to prevail, the
government would need to defend each spectrum
license under a standard of strict scrutiny,
particularly where it was granting disproportionate
benefits and spectrum to certain types of speakers
over others.

Under intermediate or strict scrutiny, the
government might be unable to justify the current
highly broad allocation of spectrum to broadcasters.
Such allocations of spectrum to broadcasters include
the vast "white spaces" of spectrum set aside to
protect broadcasting signals from interference. The
FCC has recognized that these "white spaces" could
instead be used to provide high-speed, mobile
Internet access to millions of underserved
Americans.58A decision to continue to dedicate this
valuable swath of spectrum to over-the-air
broadcasting, which provides access to limited

57 See Forsyth County, Georgia v. Nationalist Movement, 505
U.S. 123 (1992); see also Hague v. CIO, 307 U.S. 496 (1939).
58 See Unlicensed Operation in the TV Broadcast Bands,
Additional Spectrum for Unlicensed Devices Below 900 MHz
and in the 3 GHz Band, Second Memorandum Opinion & Order,
25 FCC Rcd 18,661 (Sept. 23, 2010) (updating rules authorizing
the operation of unlicensed wireless devices in areas of
broadcast television spectrum unused by licensed services).
27





programming upon which an increasingly
diminishing number of Americans rely,59 as opposed
to Internet access, which provides access to a wider
breadth of diverse and antagonistic information
sources, would be difficult to justify under any form
of heightened First Amendment scrutiny.

Even if the lesser standard of intermediate
scrutiny under Turner were to apply, such a
standard would subject the FCC's decisions to
constant scrutiny as spectrum licensees argued that
burdens placed upon their speech by a variety of
structural rules were disproportionate to the
governmental interests thereby furthered.60
Applying Turner to spectrum policy would mire the
FCC in years of litigation with respect to decisions
regarding spectrum allocation, licensing,
authorization for unlicensed use, band-clearing, and
conditioning existing licenses for data roaming or
open access. Such action by the Court would disturb
reliance interests based upon current spectrum
allocation and structuring policies. Such action
would additionally constitutionalize a framework for
judicial supervision of FCC action that is far less
conducive to public interest regulation and less

59 A study from 2008 estimated that only 13% of American
households with television service relied primarily on broadcast
programming over the air, compared to 87% of households
subscribing to cable and satellite television services. See Sascha
D. Meinrath & Michael Calabrese, Unlicensed "White Space
Device" Operations on the TV Band and the Myth of Harmful

Interference (Mar. 2008), available at
http://www.newamerica.net/files/WSDBackgrounder.pdf.
60 See Turner I, 512 U.S. at 662.
28





responsive to evolving industry characteristics than
the current model of agency rulemaking.

For example, the FCC is in the process of
making difficult technical and policy decisions as to
whether and where unlicensed uses of spectrum
should be expanded and licensed uses reduced.61 For
this Court to question the scarcity rationale and
require that the government shift away from its
current model for spectrum-allocation decisions
would cast doubt upon the constitutionality of such
ongoing regulatory processes. This judicial resolution
of a highly technical issue regarding spectrum
allocation would be troubling in its own right, and
particularly troubling given that parties to a case
concerning indecency regulations are unlikely to
brief this issue--or any of the other issues described
above--in detail.

There may be some "special justification" in
the evolving character of the technology and media
landscape to support a departure from precedent in
the context of broadcasting indecency regulations,62
but this case does not offer a clear forum for
examining the risks and justifications of a sharp
departure from precedent in the context of scarcity-
based regulations.


61 See Unlicensed Operation in the TV Broadcast Bands, Second
Memorandum Opinion & Order, 25 FCC Rcd 18,661.
62 See Dickerson v. United States, 530 U.S. 428, 443 (2000).
29





CONCLUSION

Upon reassessing the basis for limited
constitutional scrutiny of broadcast indecency
regulations, the Court may choose to strike down the
government's reliance on Pacifica to limit speech.
But in fighting back this censorship, the Court
should not reach beyond the immediate case and
controversy surrounding indecency regulations and
jeopardize the feasibility of an array of spectrum-
structuring laws and policies.

Respectfully submitted,


PRISCILLA J. SMITH, ESQ.


(Counsel of Record)


NICHOLAS W. BRAMBLE, ESQ.


INFORMATION SOCIETY PROJECT
YALE LAW SCHOOL
319 STERLING PLACE


BROOKLYN, NY 11238

Counsel for Amici Curiae

September 14, 2011

30





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