Before the
Federal Communications Commission
Washington, DC 20554
Spectrum Scarcity and Broadcast Regulation
MB Docket No. 26-253
Comments of National Taxpayers Union
National Taxpayers Union (NTU) submits these comments on the spectrum scarcity arguments raised in the Television Bureau of Advertising (TVB) proceeding.1 We urge the Federal Communications Commission (FCC) to no longer utilize the limited number of broadcast licenses to justify discretionary regulation of broadcast content. Broadcasters compete for audiences that can get news and programming elsewhere.
Broadcast-Only Comparisons Leave Out Competing Services
A broadcast license does not insulate a station from competition for its audience. The FCC must allocate frequencies and prevent interference, but the number of available frequencies no longer restricts the number of choices that viewers have. Understanding the market requires looking at the vast array of services viewers use, including those outside broadcast licensing. The Commission must also comply with Section 326, which prohibits FCC censorship and bars regulations that interfere with free speech by radio.2
A holistic view of modern video markets demonstrates that there is significant competition across a multitude of platforms and delivery options. Pew Research Center found that, in 2025, 56% of U.S. adults often got news from digital devices. The corresponding figure for television was 32%, including television beyond over-the-air broadcasts. Respondents could use multiple platforms, so these figures should not be read as market shares.3 However, they show how much information a broadcast-only analysis would omit. In the second quarter of 2026, streaming also accounted for 44.4% of ad-supported television viewing among adults 18 and older, while broadcast accounted for 28.6%, according to Nielsen.4
The FCC will need more specific evidence to evaluate competition for local advertising. A business buying airtime may depend on a station to reach its customers even when streaming attracts a larger national audience. Households also face broadband costs that can limit their choices. The FCC should assess all alternatives available in each market, not just television, when reviewing a restriction justified by scarcity. National audience figures alone cannot establish whether viewers and advertisers have adequate substitutes.
NTU raised similar concerns during the 2017 cross-ownership debate when we supported allowing investment in local outlets that were struggling to compete, and warned that losing reporters meant less scrutiny of government spending. Our sister organization, National Taxpayers Union Foundation (NTUF), later recommended relaxing radio ownership limits where digital substitutes were abundant. NTUF’s 2026 media-merger analysis also examined substitution as the basis for deciding which services compete in the same market.5
As we wrote then, local reporting matters to taxpayers who rely on it to follow how their government spends public money. The government’s imposition of regulations can create unnecessary compliance costs that leave stations with fewer resources for reporting and other operations. The FCC should account for those costs when it evaluates a restriction’s benefits. Scarcity alone is an inadequate reason to keep a discretionary content rule when the audience can turn to competing sources.
Existing Law Limits the Relief Available
The Commission can reconsider its policies without claiming authority to overrule Red Lion Broadcasting Co. v. FCC, which remains binding Supreme Court precedent. In FCC v. League of Women Voters, the Court said it would await a signal from Congress or the FCC that technological change warranted revisiting broadcast regulation. We urge the FCC to examine the evidence of that change and reconsider restrictions within its discretion.6
Section 315(b) still governs the lowest unit charge for candidate advertising. NTUF maintains our support, as noted in our April 2025 comments, for keeping that protection because it helps less well-funded candidates obtain airtime.7 The Commission must decide TVB’s eligibility dispute under the statute, even if it concludes that scarcity no longer supports discretionary content regulation. Any further change requiring legislation belongs before Congress.
NTU’s request also leaves public inspection files and foreign-sponsorship disclosures intact. NTUF has supported keeping these transparency requirements while simplifying compliance.8
Conclusion
The FCC should use this proceeding to reassess scarcity as a basis for discretionary content regulation and identify which restrictions it can remove under existing law.
Respectfully submitted,
Alessandra Desiderio
Director, Center for Emerging Technologies
National Taxpayers Union
1 FCC, DA 26-1056, September 30, 2026, p. 2.
2 47 U.S.C. § 326.
3 Pew Research Center, News Platform Fact Sheet, September 25, 2025.
4 Nielsen, Q2 2026 Ad Supported Gauge, August 25, 2026.
5 NTU, Cross-Ownership Rule, November 7, 2017; NTUF, FCC reply comments, April 28, 2025, p. 10; NTUF, Netflix-Warner Bros. analysis, February 3, 2026.
6 Red Lion, 395 U.S. 367 (1969); League of Women Voters, 468 U.S. 364, 376 n.11 (1984).
7 NTUF, GN Docket No. 25-133 reply comments, April 28, 2025, p. 11; 47 U.S.C. § 315(b).
8 NTUF, GN Docket No. 25-133 reply comments, April 28, 2025, pp. 11-12.