The article is here; some excerpts from the Introduction:
Starting in the 1980s under President Reagan, the FCC curtailed or abandoned most of the content regulations of broadcasting that it had earlier promulgated. That pattern continued through the Biden Administration: Such regulation was largely dormant. Statutes regulating content existed (although, with the episodic exception of indecency, they were interpreted narrowly). But regulations created by the FCC were either repealed (notably the fairness doctrine), never applied (e.g., the broadcast hoax rule), or applied so rarely and weakly as to be toothless (e.g., the broadcast news distortion policy).
Broadcast television may seem like a relic of the past to some readers of this Article. But it garners more than 20% of all television viewing, and the legal issues it raises are important. The developments presented in this Article highlight important questions about the desirability of regulation and tell an instructive story about roads taken and not taken.
There are two key elements of the legal landscape for broadcasting. First, every license is for a term of years and then is subject to renewal under the statutory "public interest, convenience, and necessity" standard. The same public interest standard applies to any application to transfer a license from one entity to another, which means that any corporate merger or acquisition involving licenses requires the FCC finding that the transfer is consistent with the public interest. And, as judicial opinions and Commission practice make clear, the public interest standard extends well beyond concerns about competition.
How can the FCC exercise such pervasive control over a means of communication? That implicates the second key element of the legal landscape—Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation.
