FCC-Paper Kills Scarcity Doctrine

The so-called scarcity doctrine has for long been a central part of communication regulation in the US, specifically by the Federal Communications Commission (FCC). The doctrine. The rationale of this doctrine is that since the spectrum used to broadcast signals was scarce, the government (FCC) should have a role in allocating it through licensing. This doctrine has been criticized on technological, legal and economic grounds, but has always been part of the FCC's arsenal to regulate the airwaves and the speech that flows over it. Now the media bureau of the FCC has published a staff research paper that all but kills the scarcity doctrine: The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed by John W. Berresford [PDF].

The paper outlines what has argued for a long time: the scarcity doctrine cannot hold. If it ever was valid, this is undercut in today's media marketplace with the rise of new and improved technologies: e.g. "Perhaps most damaging to The Scarcity Rationale is the recent accessibility of all the content on the Internet, including eight million blogs, via unlicensed spectrum and WiFi and WiMax devices." (p. 11).

In Reno v. ACLU (1997), the landmark case on indecency regulation on the internet, the US Supreme Court made it already clear that the scarcity doctrine could not be projected on the new medium: "[T]he Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low-cost capacity for communications of all kinds". In the same case the Supreme Court also set aside the so-called pervasiveness doctrine for the internet. The pervasiveness doctrine has been increasingly used by the FCC to regulate indecency of broadcasting with the argument that certain media invade people's homes and may easily bring harmful content to children (compare FCC. v. Pacifica Foundation (1978)). As the Supreme Court noted in Reno v. ACLU:

"[T]he Internet is not as 'invasive' as radio or television [...], [...] communications over the Internet do not 'invade' and individual's home or appear on one's computer screen unbidden. Users seldom encounter content by 'accident'."

That was the Supreme Court in 1997 on both doctrines in relation to the internet. As the paper rightfully notes, new media, the internet included, may be as 'invasive' as the old. However, this does not bring ground for (more) regulation, and just as the scarcity doctrine the pervasiveness doctrine may be undercut by (technological) developments:

It may be on the contrary, that the spread of new media, with hundreds of new channels, should cause regulation of indecency in traditional broadcasting to end. If what is pervasive today is hundreds of channels and billions of web pages, no one channel, show, or page is as pervasive as the Big Networks' shows were in the heyday of their three-member oligopoly. Also, new technology [...] empower consumers who wish their homes to be free of indecent content while allowing others to access their content of their choosing free from government intervention and oversight. (p. 29)

The paper says what has been said before, but its source (the FCC) makes this noteworthy (though it is a nice paper on itself). The question is what an abolishment of the scarcity doctrine, and the pervasiveness doctrine for that matter, would mean for the (regulation of) media. Current attempts by the FCC and Congress to come down hard on indecency might be mellowed, when the "insight" of this paper becomes policy. I doubt this will happen anytime soon. As Jack Balkin notes in his Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society(2004), there may be another, less benign side to the recognition that scarcity can no longer be an argument for regulation: telecommunications companies increasingly argue that these regulations (such as must-carry and open access requirements, limitations on ownership and public interest obligations) violate their First Amendment rights. Balkin notes that this argumentation is based on a capitalistic theory of freedom of speech, which he calls "controversial not because it accepts capitalism as a basic economic ordering principle, but because it subordinates freedom of expression to the protection and defense of capital accumulation in the information economy." (p. 24)

In that sense this paper, and its publication by the FCC, might not be very surprising. Consider it an affirmation of the direction the FCC has been steering and (de)regulating to for a long time: pro-business freedom. Now it's waiting for a FCC-paper on how (over)privatization of the "public airwaves" can render public freedom scarce.

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Paper thru The Technology Liberation Front
Update: Link to paper was changed and now updated