IV. The First Amendment Imposes Limitations on the Government’s Power to Limit Non-Interfering Use of Spectrum

Previous sections discussed the technical and public policy justifications in favor of use-it-or-share-it. But the FCC must consider another critical factor when evaluating a petition or proposal requesting non-interfering access to underutilized spectrum: the First Amendment prohibition on unwarranted government regulation of speech. Because spectrum is a government-controlled resource that is essential for wireless communication, FCC decisions on access to spectrum must be consistent with First Amendment principles. Like printing presses, spectrum is used almost exclusively for communicating information.¹ Yet, unlike publishing or any other form of speech, the government requires a license to communicate over the public airwaves. As a result, and as federal courts have consistently held, the assignment of rights to communicate cannot be based solely on economic criteria or the whims of regulators.

First Amendment jurisprudence on the FCC’s right to regulate spectrum rests on the so-called “scarcity rationale.” This is the rationale that because the frequency bands most useful for communication are finite and in demand by more potential users than can be productively accommodated, the FCC must allocate and assign spectrum rights to avoid harmful interference. While this scarcity rationale can and has been used to justify licensing, auctions, license conditions, and other FCC regulations of spectrum use, it cannot justify barring non-interfering communications. Rather, limitations on spectrum use that do not cause harmful interference exacerbate the problem of scarcity in spectrum rather than addressing it. As the Supreme Court first articulated in NBC v. U.S., the decision that first articulated the scarcity rationale, “the facilities of radio are limited and therefore precious; they cannot be left to wasteful use without detriment to the public interest.”² While in that case the court was concerned about waste occurring due to harmful interference, waste from unnecessary regulation is similarly damaging to the public’s interest in both maximizing the opportunity to communicate and efficiently utilizing the public airwaves.

Government regulation of spectrum plainly implicates First Amendment rights. When drafting the First Amendment, the founders took care to consider not only the right to speak, but also the right to be heard. To that end, the founders were suspicious of unnecessary impediments to speech. The Supreme Court has recognized that concerns about the ability to print and disseminate information without a license provided a crucial backdrop to the adoption of the First Amendment.³ There is a clear analogy between the founders' concerns over unnecessary licensing of newspapers and current debates over the FCC requiring approval to communicate over the airwaves. Indeed, the First Amendment interest in public access to spectrum is even stronger because—unlike printing presses or the internet—the government claimed monopoly control over the airwaves in 1927. It is simply not lawful for a citizen to engage in wireless communication without a license or other affirmative permission from the FCC—an issue that arises periodically in the context of “pirate radio stations.”⁴ Unlike newspapers or any other mode of First Amendment speech, the government has chosen to exhaustively license communication over the airwaves. No permission, no speech. Even in a case where the Supreme Court chose to uphold government regulation of licensees, the court first made clear that “broadcasting is clearly a medium affected by a First Amendment interest.”⁵

The fact that restrictions on spectrum access and use implicate First Amendment interests does not make them inherently unconstitutional. But it does mean that to be upheld FCC restrictions on communication must be justified by a sufficiently important government interest in a sufficiently tailored manner. This lower level of scrutiny applies to “content neutral” regulations of speech—such as spectrum allocation and assignments of licenses—whereas government restrictions targeting a particular message or content must serve a compelling state interest. The FCC assigns permission to communicate over spectrum through generally content-neutral means, such as auctions. While content-neutral regulations are protected from the ire of “strict scrutiny,” they still must still pass intermediate scrutiny and therefore must address an “important or substantial government interest” and cannot burden substantially more speech than is necessary to protect that interest.⁶

The next section explains that while federal courts have consistently upheld content-neutral spectrum regulation, the scarcity rationale relied upon in those cases does not support upholding unnecessary restriction of non-interfering spectrum usage. To the contrary, the reasoning adopted by the Supreme Court lends additional support to the idea that permitting non-interfering uses of spectrum wherever feasible, even if only opportunistic or contingent, is most consistent both with First Amendment principles and the court’s concerns over the efficient use of the nation’s finite spectrum.

When the Supreme Court first articulated the scarcity rationale in NBC v. United States, wireless communication was in its infancy. ⁷ In that case, the FCC attempted to provide a solution to the problem of radio broadcasters operating on the same frequencies. The court recognized that the federal government needed the authority to grant broadcasting rights to some users and deny it to others so that harmful interference would not turn the spectrum into “a cacophony of competing voices, none of which could be clearly and predictably heard.”⁸ The Supreme Court later reaffirmed this logic in Red Lion, articulating a different standard for certain regulations of broadcast media as opposed to print media due to the scarce nature of usable frequencies.

There are two ways to interpret what the court did in NBC, Red Lion, and later cases that applied First Amendment law to government regulation of spectrum. One interpretation is that the court applied intermediate scrutiny to the government’s regulation, since it is content-neutral, and concluded that the regulations in question addressed a serious problem (scarcity of spectrum frequencies) and did so in a manner that was sufficiently related to the problem and not unduly burdensome to First Amendment interests.⁹ Intermediate scrutiny of restrictions on access to the airwaves suggests that the FCC must be able to articulate how and why scarcity (an undue risk of harmful interference) justifies denying a request to communicate. This position has been most thoroughly articulated by legal scholar Stuart Minor Benjamin:

[T]he government's refusal to allow anyone to use a given frequency must satisfy intermediate scrutiny in order to be constitutional. In the main, the only government interest that will satisfy such scrutiny is nontrivial interference with another's signal. . . . The government violates the First Amendment when it keeps more spectrum unused than is justified by concerns about interference.¹⁰

Subsequent decisions support Professor Benjamin’s interpretation. In a later case the Supreme Court described its decision in Red Lion using language associated with intermediate scrutiny as it inquired whether “the restriction is narrowly tailored to further a substantial government interest.”¹¹ Further, the focus on interference is central when we keep in mind that unlike most other natural resources (oil, gas, and water), the utility of the spectrum to carry communication is infinitely renewable from one millisecond to another. There is no trade-off among users provided they are coordinated sufficiently to avoid harmful interference.

A rival interpretation is that the Court created an alternative standard for broadcast media, arguing that because spectrum frequencies are scarce, the court should apply something closer to rational basis review for government regulation of spectrum.¹² But either of these interpretations support the view expressed in this paper—that the FCC must always strive to accommodate non-interfering spectrum access and band sharing—because both recognize that ameliorating scarcity is the crucial underpinning of any government justification for restricting spectrum use. Scarcity is not even a rational basis if there is no undue risk of harmful interference.

There is a variation of the second interpretation from Red Lion and NBC that we can forcefully reject: the idea that the court relaxed the standard of review for all content-neutral broadcast regulation and spectrum access restrictions regardless of their logical relation to scarcity. That argument is both logically incoherent and contradicted by the court’s subsequent jurisprudence. NBC and Red Lion were clear that applying a lower standard of review for restrictions on wireless communication is predicated on scarcity. As Professor Benjamin has articulated, the notion that scarcity justifies the lowest (rational basis) standard of review even where the policy in question directly exacerbates scarcity—by denying a request for non-interfering spectrum use—is circular and illogical.¹³

Further, when the Supreme Court revisited the question of broadcast regulation in FCC v. Pacifica Foundation, upholding a FCC regulation (prohibition of obscenity) that had no relationship to ameliorating scarcity, it did not apply a lower standard of review or even refer to scarcity.¹⁴ Rather than justify their decision on scarcity, the court found that government regulation of obscenity on broadcast media was permissible because “television was uniquely pervasive and accessible to young children."¹⁵

While the scarcity rationale can justify most restrictions on access to the airwaves, its inapplicability is stark when it comes to low-power unlicensed devices that pose little or no risk of harmful interference to primary users in a band (or the disruption can be prevented through reasonable steps by incumbents, such as updating a FCC or AFC database about deployments).¹⁶ Authorizing devices to operate below a harmful interference threshold increases the number of spectrum users without infringing on the rights of incumbents. These new users ameliorate the problem of scarcity rather than exacerbate it. Examples include the FCC’s blanket authorization of Ultra Wide Band (UWB) in 2002 and of low-power, indoor-only unlicensed operations across the entire 6 GHz band in 2020 (described above).¹⁷

The FCC may find it necessary to place limitations on opportunistic use, but as the First Amendment’s intermediate scrutiny requires, the agency must do so only to address an important purpose and it must narrowly tailor the regulation to avoid unduly burdening First Amendment rights. While this analysis will typically be band-specific, it seems quite likely that federal courts would conclude that while technical limitations are acceptable (such as low power, or registration and coordination requirements), broad bans of access to unused frequencies (such as bestowing and enforcing exclusive rights to a particular user whether or not they are actually using the spectrum) would not be.¹⁸

Further, while the case is strongest for UWB and other devices so low power that they make interference in most bands a non-issue, the government has First Amendment obligations to other potential spectrum users as well. Even if the FCC is addressing a “substantial issue,” which harmful interference is, the agency must still address the issue in a way that attempts to prioritize First Amendment rights. This means that requests to use idle spectrum, or more general proposals that would authorize additional users while preventing harmful interference, must be seriously considered by the FCC, particularly in response to a citizen request (petition) for non-interfering access. Whatever policy the commission ultimately adopts should try to ensure that spectrum can accommodate more users rather than less.

In fact, the most relevant case for understanding government regulation of non-interfering spectrum use is not Red Lion but a subsequent and lesser known Supreme Court decision. In Los Angeles v. Preferred Communications,¹⁹ city officials attempted to give exclusive cable access to a single company. One of the excluded cable providers sued the city, arguing that the city-owned utility poles had more than enough room to facilitate competitive access. The court made clear that the city must be held to a higher standard than mere rationality review because the cable company’s proposed service “plainly implicated First Amendment interests.”²⁰ The analogy to spectrum is clear: As long as there is substantial fallow or underutilized spectrum, the government must pass intermediate scrutiny in order to reject potential users.

One could argue that if scarcity is inapplicable as a rationale to deny non-interfering uses of spectrum, perhaps there is another rationale that could routinely satisfy intermediate scrutiny. Some reasons are clearly not satisfactory: auction revenue comes to mind. While auction revenue has been a political motivation for certain spectrum allocation decisions,²¹ it is not a rationale that is permissible for restricting First Amendment rights.²² Additionally, the FCC is prohibited by statute from taking auction revenue into account when making spectrum allocation decisions.²³

A justification more difficult to dismiss is the government's interest in denying access to a band of spectrum because it might want to reallocate the band to a more efficient use in the future. The FCC routinely runs up against significant legal and political obstacles to reassigning spectrum occupied by incumbents. Courts have readily upheld the broad authority of the FCC under Section 316 of the Communications Act to amend licenses in the public interest—including by reducing the amount of spectrum assigned to licensees, or shifting the licensee to different frequencies—provided that the agency does not make fundamental changes to a license that destroys or severely disrupts the service the licensee is currently providing.²⁴

As a result, the FCC could assert a future intention to reallocate or reorganize a band as a justification for not granting new licensed rights in a band at a particular time, or for an extended period. While this would be a fact-sensitive inquiry, when considering use-or-share requests for opportunistic or time-limited access, this rationale should fail because it would be far better to allow temporary or opportunistic use on a conditional basis rather than denying it outright and leaving the band fallow. A First Amendment perspective suggests the FCC needs to make an explicit distinction between authorizing licensed use of the band’s vacant spectrum (such as under Part 101, which grants 10-year licenses with interference protection) and opportunistic use (such as GAA licensing by rule, or unlicensed use) that confers no preclusive rights.

For example, in 2017 a Petition for Rulemaking filed by the Open Technology Institute (OTI), rural broadband ISPs and others requested to coordinate use of locally-vacant spectrum in the C-band (at that time operating across 3700-4200 MHz) and receive 10-year licenses under Part 101 on a first-in-time basis.²⁵ After seeking comment as part of the broader C-band Notice of Proposed Rulemaking (NPRM), the Commission declined to authorize coordinated access “at this time.”²⁶ However, as discussed further in the next section, the denial of an alternative request for opportunistic use on a licensed-by-rule GAA basis would be far harder to justify, particularly given the current ability of the SAS in the adjacent CBRS band to ensure no harmful interference and to deny continued permission to operate on a particular frequency at any future time. Unfortunately, neither petitioners nor the FCC explicitly made this distinction or engaged in a First Amendment analysis.

Ultimately, any constitutional justification for denying access to communicate over the government-controlled airwaves must first acknowledge that—all else being equal—more intensive, non-interfering use of the spectrum is always in the public interest. Finding otherwise would contradict decades of First Amendment jurisprudence articulated in cases such as Associated Press v. United States: “[The First Amendment] rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”²⁷ Harold Feld of Public Knowledge has explained this analysis in the context of unlicensed spectrum, concluding that without an important reason (e.g., the inability to avoid interference), the FCC’s choice of open and unlicensed access to spectrum must be the “first among equals” in a constitutional sense.²⁸ Although his article pre-dated CBRS and GAA as a licensed-by-rule equivalent to unlicensed use, the analysis is the same.