arstechnica.com
Speech police Trump FCC chair wants to revoke broadcast licensesthe 1st Amendment might stop him Brendan Carr backs Trump's war against media, but revoking licenses won't be easy. Jon Brodkin Dec 17, 2024 7:00 am | 95 President-elect Donald Trump speaks to Brendan Carr, his intended pick for Chairman of the Federal Communications Commission, as he attends a SpaceX Starship rocket launch on November 19, 2024 in Brownsville, Texas. Credit: Getty Images | Brandon Bell President-elect Donald Trump speaks to Brendan Carr, his intended pick for Chairman of the Federal Communications Commission, as he attends a SpaceX Starship rocket launch on November 19, 2024 in Brownsville, Texas. Credit: Getty Images | Brandon Bell Story textSizeSmallStandardLargeWidth *StandardWideLinksStandardOrange* Subscribers only Learn morePresident-elect Donald Trump's pick to lead the Federal Communications Commission, Brendan Carr, wants the FCC to crack down on news broadcasters that he perceives as being unfair to Trump or Republicans in general.Carr's stated goals would appear to mark a major shift in the FCC's approach to broadcasters. Carr's predecessors, including outgoing Chairwoman Jessica Rosenworcel and Republican Ajit Pai, who served in the first Trump administration, both rejected Trump's calls to punish news networks for alleged bias.Carr has instead embraced Trump's view that broadcasters should be punished for supposed anti-conservative bias. Carr has threatened to revoke licenses by wielding the FCC's authority to ensure that broadcast stations using public airwaves operate in the public interest, despite previous chairs saying the First Amendment prevents the FCC from revoking licenses based on content.Revoking licenses or blocking license renewals is difficult legally, experts told Ars. But Carr could use his power as FCC chair to pressure broadcasters and force them to undergo costly legal proceedings, even if he never succeeds in taking a license away from a broadcast station."Look, the law is very clear," Carr told CNBC on December 6. "The Communications Act says you have to operate in the public interest. And if you don't, yes, one of the consequences is potentially losing your license. And of course, that's on the table. I mean, look, broadcast licenses are not sacred cows."Carr fights Trumps battlesCarr has said his FCC will take a close look at a complaint regarding a CBS 60 Minutes interview with Kamala Harris before the election. Trump criticized the editing of the interview and said that "CBS should lose its license."In an interview with Fox News, Carr said there is "a news distortion complaint at the FCC still, having to do with CBS, and CBS has a transaction before the FCC." He was referring to a pending deal involving Skydance and Paramount, which owns and operates 28 local broadcast TV stations of the CBS Television Network."I'm pretty confident that news distortion complaint over the CBS 60 Minutes transcript is something that is likely to arise in the context of the FCC's review of that transaction," Carr said.Carr also alleged that NBC putting Harris on Saturday Night Live before the election was "a clear and blatant effort to evade the FCC's Equal Time rule," even though NBC gave Trump two free 60-second messages in order to comply with that rule. In Carr's CNBC interview on December 6, he raised the specter of imposing new rules for broadcasters and taking action against NBC over the Saturday Night Live episode."I don't want to be the speech police," Carr told CNBC. "But there is something that's different about broadcasters than, say, podcasters, where you have to operate in the public interest. So right now, all I'm saying is maybe we should start a rulemaking to take a look at what that means. There's other issues as well. Look, there's a news distortion complaint that's still hanging out there involving CBS, with NBC and SNL, we had some issues potentially with the Equal Time provision. I just think we need to sort of reinvigorate the FCC's approach to these issues, as Congress has envisioned."We emailed Carr with questions about his specific plans for challenging broadcasters' licenses and whether he still believes that NBC attempted to evade the Equal Time rule, but we did not receive a response.Carrs tough taskThe Carr FCC and Trump administration "can hassle the living daylights out of broadcasters or other media outlets in annoying ways," said Andrew Jay Schwartzman, who is senior counselor for the Benton Institute for Broadband & Society and previously led the nonprofit Media Access Project, a public interest telecommunications law firm. At the FCC, "you can harass, you can kind of single some broadcasters out, and you can hold up some of their applications," Schwartzman said in a phone interview with Ars.But that doesn't mean Carr can put broadcasters out of business. "They're not going to revoke licenses. It's just legally just not doable. He can't change the precedents and the statute on that," Schwartzman said.Schwartzman explained in a recent memo that "under the Communications Act, revocation of a license, which means taking it away in the middle of a license term, is essentially impossible. The legal standard is so high that the only time that the FCC tries to revoke a license is when a station (typically a mom-and-pop AM) goes dark." Schwartzman wrote the memo in response to Trump's demand that the FCC punish CBS.The FCC doesn't license TV networks such as CBS, NBC, or ABC, but the FCC could punish individual stations owned by those companies. The FCC's licensing authority is over broadcast stations, many of which are owned and operated by a big network. Other stations are affiliated with the networks but have different ownership.Although revoking a license in the middle of a license term is effectively impossible, the FCC can go after a license when it's up for renewal, Schwartzman said. But Carr will have to go through most of the next four years without any opportunity to challenge a broadcast TV license renewal. According to the FCC's list of renewal dates, there are no TV station licenses up for renewal until 2028.That won't give Carr enough time to reject a renewal and win in court, Schwartzman said. "A license renewal litigation that would take years can't even begin until Trump is out of office," he told Ars.Light years away from previous Republican chairCarr would face a high legal standard even if there were licenses up for renewal in 2025. Schwartzman's memo said that "the First Amendment bars denial of renewal based on program content, and certainly not based on the political views expressed.... The only way that a broadcaster could theoretically get into trouble on renewal would be a character problem based on being found to have lied to the government or conviction of major felonies."A license renewal isn't the FCC's only avenue for challenging broadcasters. As noted earlier in this article, Carr has discussed investigating bias allegations during proceedings on license transfers that happen in connection with mergers and acquisitions. Carr can "hold up a transfer" when a company tries to sell broadcast stations and "hassle people that way," Schwartzman told Ars.It's clear from his public statements that Carr sees the FCC's responsibility over broadcasters much differently than Pai, Trump's first FCC chair. Pai, a Republican who teamed up with Carr on deregulating the broadband industry and many other conservative priorities, rejected the idea of revoking broadcast licenses in 2017 despite Trump's complaints about news networks. Pai said that the FCC "under my leadership will stand for the First Amendment" and that "the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast."More recently, Rosenworcel rejected Trump's call to revoke licenses from CBS. "As Ive said before, the First Amendment is a cornerstone of our democracy," she said in October this year. "The FCC does not and will not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage.On this topic, Carr's views are "light-years" away from Pai's, Schwartzman said. But Schwartzman also sees several of Carr's statements as being toothless. While Carr repeatedly points to the public interest standard for broadcasters, Schwartzman noted that the FCC must apply the public interest standard to all matters."All he's saying is, 'I'm going to enforce the statute as it's existed since 1934.' It's meaningless, and it's therefore easy for him to say," Schwartzman said.Carr was wrong about NBC violating the Equal Time Rule by putting Harris on Saturday Night Live, Schwartzman said. To comply with the rule, NBC only had to honor a request from Trump for "equal opportunities," he said. This is a routine process that broadcasters have known how to handle for a long time, he said."The burden is on the opposing candidate to ask for it. Having a candidate on... is not only not a violation, it's actually encouraged because broadcasters are supposed to stimulate discussion of issues and ideas," he said. Carr's main purpose in making his Saturday Night Live complaint, in Schwartzman's opinion, was "to fulminate. It's just grandstanding. He was running for chair."Conservative group urges limits on FCCJeffrey Westling, a lawyer who is the director of technology and innovation policy at the conservative American Action Forum, is concerned about the FCC acting on Trump's calls to punish networks. After Trump called for ABC licenses to be revoked because of its handling of a debate, Westling wrote that "it is indeed possible for the federal government to revoke a broadcast license, even in response to what is essentially a political offense."Westling urged Congress to "limit or revoke the FCC's authority to impose content-based restrictions on broadcast television," specifically through the FCC rule on broadcast news distortion.Proving distortion is difficult, with requires elements including "deliberate intent to distort the news" and "extrinsic evidence to the broadcast itself, such as that a reporter had received a bribe or that the report was instructed by management to distort the news," Westling wrote. The distortion also must be "initiated by the management of the station" and involve "a significant event.""While these standards are fairly stringent, the FCC must investigate complaints when a station seeks to renew its license, adding risk and uncertainty even if the station never truly violated the policy," Westling wrote.When contacted by Ars, Westling pointed out that the high standard for proving news distortion "only matter[s] if the administration's goal is to revoke a broadcaster's license. As much as I personally disagree with the rule, the courts have made clear that if a complaint has asserted the necessary elements, the Commission must thoroughly review it when considering a license transfer or renewal."The FCC "review is costly, and adds uncertainty for the broadcaster that quite literally relies on the license to operate," Westling said. "As a result, it is possible that even a threat from the president could influence how a broadcaster chooses to air the news, knowing that news distortion review could be in its future."Westling also said it's possible "that the FCC's use of the news distortion rule to deny a transfer or renewal of a license could be approved by the courts. The actual bounds of the rule are not well tested, and theoretically, a sympathetic court could be favorable to more loose enforcement of the rule."Carr, who described how he would run the FCC in a chapter for the conservative Heritage Foundation's Project 2025, also wants the agency to crack down on social media websites for alleged anti-conservative bias. He has said he wants to "smash" a "censorship cartel" that he claims includes social media platforms, government officials, advertising and marketing agencies, and fact-checkers.Other factors might stop Carrs blusterWhen it comes to broadcasting, Schwartzman said there are several reasons to think Carr's statements are mostly bluster that won't result in major consequences for TV stations.Broadcasters have a lot of political power that's wielded through the National Association of Broadcasters and relationships with members of Congress. Broadcasting, despite being less influential than it used to be, "is still among the most powerful industries in Congress and in the country... there is not a member of Congress alive who doesn't know the general manager of every TV station in their district," Schwartzman said.The FCC taking action against left-leaning broadcasters could lead to similar actions against conservative broadcasters during future administrations. Schwartzman questioned whether Carr actually wants "to set a precedent that's going to put Fox in jeopardy the next time there's a Democrat in the FCC."Another factor that could constrain Carr is how recent Supreme Court rulings limit the power of federal agencies. The FCC's other Republican member, Nathan Simington, has vowed to vote against any fine imposed by the commission until its legal powers are clear."Under new and controlling Supreme Court precedent, the Commission's authority to assess monetary forfeitures as it traditionally has done is unclear," Simington said in August. "Until the Commission formally determines the bounds of its enforcement authority under this new precedent, I am obligated to dissent from any decision purporting to impose a monetary forfeiture. I call on the Commission to open a Notice of Inquiry to determine the new constitutional contours of Commission enforcement authority."The Supreme Court's June 2024 ruling in Securities and Exchange Commission v. Jarkesy held that "when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial." This ruling could impact the ability of other agencies to issue fines.Besides all of those reasons, Schwartzman offered another potential problem for Carr's plansthe incoming chair's post-FCC employment prospects, particularly if Carr wants to go back to practicing law. Before becoming an FCC commissioner, Carr was the agency's general counsel."He's not going to have a career as a communications lawyer in private practice after he's on the FCC if he starts saying that broadcasters don't have First Amendment rights," Schwartzman said.Jon BrodkinSenior IT ReporterJon BrodkinSenior IT Reporter Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry. 95 Comments
