Does the FCC's failure to fine Limbaugh represent regulatory capture?

[onenote]

23. Still no.

The FCC simply doesn't have the power you want them to have, either as a statutory matter or as a constitutional matter. As pointed out in another post in a different thread, Section 326 of the Communications Act states (as it has since 1934): "Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication."

The one exception is found in the criminal code (it used to be in the Communications Act but was moved in 1948). Section 1468 of Title 18 states that "Whoever utters any obscene, indecent or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years or both."

Indecency, obscenity, and profanity are very narrow categories of speech. (If they weren't a whole lot of what appears on tv and radio, including a lot of music from the 60s through today) would have resulted in people being charged with crimes.

Rush didn't commit any crime. He was an asshole and its important that the sponsors and radio stations that support him be called out for supporting an asshole. But the government has no authority to punish him for the content of his speech.