From Red Lion to Red List: The Dominance and Decline of the Broadcast Medium

Abstract

This essay proposes a little housecleaning in the law of communications regulation. Red Lion Broadcasting Co. v. FCC, 395 U.S. 369 (1969), deserves to be transferred in its entirety from the realm of doctrine to that of history. Defenders of Red Lion and the discourse-based model of free speech jurisprudence symbolized by that decision seek to preserve one communicative niche where the public at large does absolutely nothing besides watch or listen. Appeals to civic republicanism and other lofty ideals notwithstanding, what Red Lion privileges above all else is sloth, the idea that there should be one form of mass communication that all citizens, without regard to wealth or power, can access solely by virtue of buying a receiving device and turning it on.

For four decades Congress and the FCC have imposed mandatory carriage obligations on cable and broadcast satellite operators for the benefit of conventional television stations. The emergence of intermediate constitutional scrutiny in those decisions has effectively confined Red Lion's deferential standard of review to structural regulation of the broadcast industry itself. Sustained resort to mandatory carriage schemes has reduced conventional broadcasting from a pervasive medium into the legal ward of byzantine regulatory systems designed to leverage the greater dominance of subscription-based platforms for delivering multichannel video programming.

Keywords: Red Lion, broadcasting, FCC, Federal Communicaitons Commission, First Amendment, cable, DBS, technology