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

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42. The FCC declared the FD was no longer in force in 1987 .

But the FCC didn't take the ministerial step of removing the provision from the Code of Federal Regulations (not that unusual in my experience: for example, Congress repealed regulation of rates charged by cable operators for "expanded" service effective 1999, but there are still provisions in the FCC's rules that it hasn't gotten around to deleting that refer to that regulation).

Anyway, in the case of the FD, a bunch of RW legislators trying to drum up a good fundraising issue among their supporters claimed that the fact that the FCC hadn't ever gotten around to deleting the provision from its books after declaring it no longer in effect was somehow a threat to rush and company. That was total BS of course.

But the matter is settled now: on August 22, 2011 the FCC did "formally" remove the dead letter FD from its books (without having to go through the formal rulemaking process that ordinarily would be required if it was repealing a rule that was actually in force). In announcing the deletion of the FD and other "obsolete" rules from the Code of Federal Regulations, the FCC noted that "the Fairness Doctrine is not currently enforced by the FCC and has not been applied for more than 20 years." The FCC went on to state that the elimination of the obsolete Fairness Doctrine regulations will remove an unnecessary distraction....striking this from our books ensures there can be no mistake that what has long been a dead letter remains dead."

And once again, the question of what the laws governing broadcast radio and television should be is an important topic of discussion. But what the laws should be and what they are now are not the same thing and anyone thinking that, under the laws as they exist today, the FCC can do anything to limpy or the stations that carry him are simply mistaken. The law as it exists today is clear: no regulation of content beyond certain narrow categories (e.g., obscenity, indecency, profanity). If there is an antitrust claim to be brought (and rest assured there is not) it would be brought under the anti-trust laws, not the Communications Act. And yes it is censorship to regulate the airwaves based on the content of the speech going out over the airwaves. The FCC can indirectly attempt to promote "diversity" in content by imposing limits on ownership -- it can't do it by directly regulating the content of a station that has been granted a license.

I understand your frustration, but after practicing communications law for more than 30 years, I can tell you that you simply are hoping for things that aren't currently the law, even if the FCC had the authority to make them the law. As a matter of administrative law it can't simply wake up one morning and decide to unilaterally impose new rules and even after conducting the requisite administrative law proceedings to create new rules, it can only do so if the new rules don't conflict with express limits that have been imposed on its statutory authority.