The Public and Broadcasting: THE FCC AND ITS REGULATORY AUTHORITY

The Communications Act. The FCC was created by Congress in the Communications Act for the purpose of “regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communications service . . . .” (In this context, the word "radio" covers both broadcast radio and television.) The Communications Act authorizes the Commission to "make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of the Act." It directs us to base our broadcast licensing decisions on whether those actions will serve the public interest, convenience, and necessity.

FCC Regulation of Broadcast Radio and Television. The FCC allocates a portion of the broadcast spectrum to new broadcast stations based upon both the relative needs of various communities for additional broadcast outlets, and specified engineering standards designed to prevent interference among stations and other communications users. Whenever we review an application – whether to build a new station, modify or renew the license of an existing station or sell a station – we must determine if granting the application would serve the public interest. As mentioned earlier, we expect station licensees to be aware of the important problems and issues facing their local communities and to foster public understanding by presenting programming that relates to those local issues. Broadcasters – not the FCC or any other government agency – are responsible for selecting the material they air. The First Amendment and the Communications Act expressly prohibit the Commission from censoring broadcast matter. Our role in overseeing program content is very limited. We license only individual broadcast stations. We do not license TV or radio networks (such as CBS, NBC, ABC or Fox) or other organizations that stations have relationships with, such as PBS or NPR, except if those entities are also station licensees (emphasis added). In general, we also do not regulate information provided over the Internet, nor do we intervene in private disputes involving broadcast stations or their licensees. Instead, we usually defer to the parties, courts, or other agencies to resolve these disputes.

In sum, the FCC’s revocation power to ABC extends ONLY to the stations owned by ABC.

Disney Entertainment Television’s eight owned ABC stations are comprised of

WABC-TV New York,

KABC-TV Los Angeles,

WLS-TV Chicago,

WPVI-TV Philadelphia,

KTRK-TV Houston,

KGO-TV San Francisco,

WTVD-TV Raleigh-Durham and

KFSN-TV Fresno.

Further, when the FCC grants exclusive free speech rights to licensees, by definition it is denying such freedom to others. To justify this privileged treatment, Congress and the courts have mandated that licensees serve as “public trustees” of the airwaves in a manner where broadcasters - not networks - “serve the public interest, convenience, and necessity.”

It is also important to remember that what triggered Kimmel’s deplatforming by ABC was local station ownerNexstar’s informing of Disney executives that their company would be pre-empting Jimmy Kimmel Live! on the 28 ABC stations it owned, everywhere from Nashville to Salt Lake City to Hartford to New Orleans. Smaller competitor Sinclair followed, and Disney soon “had little choice but to cancel Wednesday’s show and put Kimmel on indefinite leave.’

Nexstar made a business decision, not a “threat.” Nexstar’s proposed $6.2 billion acquisition of rival Tegna, which would give it 64 additional news stations in 51 markets to go with the 200 owned and partner stations it already has, would bring the company’s market coverage of the U.S. to about 80 percent. And current FCC rules cap any one company’s share at 39 percent.

The deal requires regulatory approval and the FCC Chairman has been clear about his views. Nonetheless, any CEO would likely make the same decision to effectively fire Kimmel. To do otherwise would risk a shareholder lawsuit claiming breach of fiduciary duty.

The FCC could pull ABC’s ownership of those deep blue stations under the theory that “the public interest” isn’t being served by said ownership. Maybe, the theory would go, there isn’t enough diversity in the programming in these locales. At the same time, it could be that nonsense like Kimmel being broadcast in deep blue cities IS in “the public interest” especially if pulling Kimmel in red locales also serves their “public interest.”

In the end, this isn’t about the first amendment, lying, or hate speech. This is about business, M&A activity, and CEOs chowing to not bite the hand that feeds them.

The FCC is way beyond any recognizable constitutional function. The Constitution does not delegate absolute power over “communications”. In fact the First Amendment reminds the feds that they have NO power over free speech.

To the extent of removing hinderances to interstate communications, the feds may have a plausible and LIMITED constitutionally-recognizable function, similar to the Dept. Of Commerce under the Commerce Clause.

But like the huge and unconstitutional over-reach of the Dept. Of Commerce in regulating commerce way beyond removing hindrances to commerce, so the FCC predictably has gone way beyond their constitutionally allowable role of removing hinderances to interstate communications.

There is a strong argument that the whole FCC is unconstitutional and should be dismantled. I think the FCC does more harm than good and should be dismantled replaced by a vey narrow agency to ensure gov’t defense intestate communications, separated from private communications and NO power over private communications.

I totally agree.

The stated purpose of the Communications Act of 1934, whereby the FCC came into existence, is “For the purpose of regulating interstate and foreign commerce in communication”. This power emanates from the Commerce Clause.

Justice Thomas maintained that the original meaning of “commerce” was limited to the “trade and exchange” of goods and transportation for this purpose.

Don’t take Thomas or my word for it. Take James Madison’s word via The Federalist Papers : No. 42:

“The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience.

“To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity.

“To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.”

There is NOTHING here about licensing roads or bridges, ie the 18th century equivalent of airwaves.

However, until the FCC is defunded, the current situation is where we live.

The FCC’s power emanates from the Commerce Clause.

Justice Thomas - correctly - maintained that the original meaning of “commerce” was limited to the “trade and exchange” of goods and transportation for this purpose. Or, per Madison, “the relief of the States which import and export through other States, from the improper contributions levied on them by the latter.”

As currently configured, the FCC regulates the airwaves via granting part of the spectrum to licensees who agree to serve as “public trustees” of the airwaves in a manner where broadcasters “serve the public interest, convenience, and necessity.”

A Constitutional FCC would limit its job to ensuring that New Jersey doesn’t jam any signal emanating from New York, and requiring NJ to charge NY a proper levy.

The FCC is operating way beyond any Constitutional remit.

Well, first, the issue of where “the FCC’s power emanates from” is a lesser consideration as to if plainly, “should the FCC exist at all?” (which it should not. Legislation ought to be passed destroying the FCC)

But this could be instructive. Which commerce clause does this power emanate from?

(1) The commerce clause that the Founding Fathers actually gave to us?
(2) The “dormant commerce clause”?
(3) The post-Wickard (view of the) commerce clause?

Its important to understand that not everybody is referring to the same commerce clause, given how far judges and legislators and presidents have stretched it to achieve preferential results.

Since the 1970s, the pendulum at FCC has swung only one way - toward deregulation and abandonment of standards that helped define the meaning of the “public interest” standard that broadcasters must meet as a condition of using the public airwaves to make money. It’s appropriate to revisit this issue, which does not mean “censorship”.

Walter Kirn gave a good analogy that I will borrow: Say the government gave an exclusive license to one company to conduct tours of Yellowstone National Park. The only condition was that they treat the visitors respectfully. After a time the number of complaints rises dramatically and it turns out they are all conservatives who wore MAGA hats while on the tour. It is obvious that the government would be within it’s rights as a party to the license agreement to demand the company treat ALL visitors respectfully. Exactly the same thing.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.