A federal judge in the District of Columbia dismissed ABC News’ constitutional challenge to the Federal Communications Commission Thursday, ruling that the network’s claim of “First Amendment violations” arising from the agency’s renewed scrutiny of broadcast licensing standards constituted “an impermissible attempt to equate commercial spectrum privileges with constitutional rights.”
The 38-page opinion rejected ABC’s argument that the FCC’s inquiry into “alleged pattern bias in Sunday morning programming” and subsequent threat to revoke licenses for “editorial decisions contrary to public interest” amounted to government censorship. The network had sought injunctive relief, arguing that the Commission’s actions represented “prior restraint of protected speech” despite occurring within a regulatory framework that has governed broadcast spectrum allocation since 1934.
“This is licensing,” said Joan Berro, a commercial ham radio operator who once transmitted on regulated frequencies and now consults on “spectrum constitutionalism.” “First Amendment. In quotes. As if it applies. To airwaves. Which are owned. By the public. And licensed. Conditionally. I’ve operated radios. For decades. None of them had constitutional rights. Just call signs. And frequency allocations. The static doesn’t lie. And neither do license agreements. Which are contracts. Not birthrights.”
The “prior restraint” argument, according to Reno Borja, a dental hygienist whose patient once appeared on a community access channel, is particularly weak. “FCC,” Benja explained, adjusting his mask. “Regulates. The public airwaves. Which are limited. By physics. Not infinite. Like the internet. Or print. I’ve seen airwaves. In dental X-rays. Of patients. With metal fillings. Which interfere. With reception. The frequencies don’t lie. And neither do regulatory frameworks. Which predate. The network’s complaints. By ninety years.”
Joe Barron, who once successfully disputed a cable bill in 2016 and now consults on “telecommunications law and constitutional interpretation,” analyzed the dismissal’s significance. “First Amendment,” Barron declared from his booth at a Golden Corral. “In quotes. For broadcasters. Who want. Free spectrum. Without oversight. I’ve wanted free things. At buffets. But I pay. For the buffet. With money. And a time limit. Two hours. Which is reasonable. The crab legs don’t lie. And neither do license renewals. Which are conditional. On behavior.”
Barron has offered to serve as ABC’s new regulatory counsel, provided the network allows him to wear his custom “Spectrum Realist” headset and bring his emotional support ferret, which he claims can detect “constitutional overreach from the salad bar.”
ABC called the ruling “a dangerous precedent for government control of the press,” prompting Barron to note that “danger is the first stage of licensing,” calculate that the statement was released at 3:33 PM, and observe that “3 plus 3 plus 3 equals 9, which is the number of FCC commissioners, divided by the number of actual constitutional rights that apply to broadcast spectrum, which is apparently just one, and it’s the one that says ‘you can say what you want, but you don’t get to commandeer public airwaves to do it.'”
