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

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52. These are unprecedented times, but not in the way you are thinking

Back when the FCC was enforcing the FD (the only FD-related station license revocation occurred in the late 1960s), most people had access to a relative handful of broadcast television and radio stations. Cable networks, satellite, and the Internet were more science fiction than reality. Overall, on December 31, 1968, there were 6200 full power AM and FM radio stations. At the end of 2011, there were 15000 full power AM and FM radio stations. In addition, in 1968 there were 675 full power VHF TV stations and 175 full power UHF stations. Today the numbers are 1400 VHF and 400 UHF. Plus, today there are literally hundreds of satellite and terrestrial non-broadcast program networks and essentially countless sources of news, information and/or entertainment content via the Internet.

The FD was justified by the FCC and courts based on a "scarcity" rationale. While I think an argument could still be made for distinguishing broadcast from non-broadcast sources and concluding that the scarcity rationale has life, it is just as plausible (and may well be more likely given the make up of the SCOTUS) that the scarcity rationale no longer justifies the FD.