Scarcity and Spectrum Regulation

ALright, so I couldn't get throught the whole thing...it's the legal writing thing that always puts me to sleep after a while. But, it does have some interesting things to say about constitutional issues and spectrum regulation. Who knows? It might prove as a useful reference material later on.

The Article begins in Part I by discussing situations in which there is a strong argument that government actions have resulted in unused or underused frequencies. Part II turns to the First Amendment, framing the issue by considering the constitutional objections to a regime that licenses printing presses. Part III addresses the basis upon which the Supreme Court has distinguished spectrum from print -- the scarcity rationale. The problem for the government is that the scarcity rationale does not support, and instead undercuts, government actions that diminish the number of users of the spectrum. And no other rationale distinguishes spectrum from printing presses in a way that justifies the government limiting access to the former but not the latter. One obvious objection to this argument is that it is inconsistent with NBC and Red Lion, the two main cases articulating and relying on the scarcity rationale. Part IV takes up those cases, finding that nothing in them suggests that scarcity applies across the board, and that there are good reasons to conclude that scarcity does not apply when government limits the supply of frequencies. Part IV then argues that, in the absence of scarcity as a justification for more lenient scrutiny, the scrutiny applicable to government decisions that keep potential users off the spectrum is the intermediate scrutiny articulated in Turner Broadcasting System, Inc. v. FCC.14 Part V applies that scrutiny to the various interests that the government might allege, concluding that, in most cases, only nontrivial interference will constitute an important or substantial government interest. Part VI considers how broadly the principle against government wasting of the spectrum applies. I contend that it is not limited to broadcast spectrum, and that it applies not only to unused but also to underused spectrum. Finally, Part VII addresses those situations in which adding users to the spectrum might be a less restrictive alternative to other forms of regulation. The import of my analysis is that, if a potential licensee challenges government actions that keep frequencies unusable or underused, in most cases the only legally sufficient basis for the government's action will be the need to prevent nontrivial interference; and the government's argument that interference is a problem will be subject to intermediate scrutiny.