Authorized over a century ago by Congress as an independent agency to regulate radio, and later television, cable, and the internet, the Federal Communications Commission’s focus on relatively technical telecommunications regulatory issues has largely managed to keep it out of the public spotlight. That changed earlier in September when FCC Chairman Brendan Carr threatened ABC and its affiliate stations over comments made by late night host Jimmy Kimmel following the assassination of conservative political activist Charlie Kirk. Critics from both parties accused Carr of undermining Kimmel and ABC’s free speech rights and setting a precedent of using government power to punish dissent. To help better understand the implications of Carr’s actions, we spoke with Tom Wheeler, who served as chairman of the FCC from 2013 to 2017 and is a senior fellow with the Kennedy School’s Mossavar-Rahmani Center for Business and Government.
Q: Since its inception during the New Deal, the FCC has often been thought of as the country’s broadcast regulator, but the commission has been charged with many other objectives over the years. How has the commission’s mission changed over time, and what are some of the biggest issues it faces today?
It has been almost 100 years since the FCC was founded, and a great deal has transpired technologically. For instance, when the FCC was founded in 1934 television broadcasting was just beginning. Always at the heart of the commission's mission, however, has been the protection and promotion of “the public interest, convenience, and necessity.” Today, in fulfilling that responsibility, the FCC regulates approximately one-sixth of the American economy—the networks from telephone, to internet, to satellite, radio and television on which the other five-sixths rely.
Q: FCC Chair Brendan Carr sparked a firestorm on both the right and the left when he implicitly threatened the broadcast licenses of ABC and its local affiliates over remarks made by late night host Jimmy Kimmel following the assassination of Charlie Kirk. Does the FCC have the power to go after broadcast licenses over speech issues? Has any FCC chair made such a threat against a network or its local affiliates like this in the past?
The First Amendment and the Communications Act prohibit the FCC from censorship. From the beginning of his chairmanship, Brendan Carr has made it clear that he had a broad definition of the “public interest” and that “broadcast licenses are not sacred cows” and would be held to account. Unfortunately, there is no specific definition of the “public interest,” and thus it is left to the determination of the chairman. It appears as though Chairman Carr has defined it to mean content favorable to President Trump and MAGA.
“From the beginning of his chairmanship, Brendan Carr has made it clear that he had a broad definition of the ‘public interest’ and that ‘broadcast licenses are not sacred cows’ and would be held to account.”
Q: FCC commissioner Anna Gomez released a statement on the suspension of Kimmel and government censorship where she called the revoking of licenses unprecedented. Do you agree? How much influence do commissioners have with FCC decisions?
Commissioner Gomez has been doing a great job as the voice of rationality and responsibility at the commission. What is significant about the Kimmel situation is how Chairman Carr threatened FCC action but did so without a formal decision by the agency, thus denying Commissioner Gomez a vote on the matter as well as avoiding court review as to its legality under the First Amendment.
Q: With ABC’s decision to temporarily remove Jimmy Kimmel from the air following threats from Commissioner Carr, what impact will this have on speech on broadcast television and radio?
I believe its intent was to have a chilling effect on the diversity of voices and opinions that are heard—and that the chairman has succeeded. The tragedy is that for over 90 years the FCC has had the responsibility to promote diversity of voices and ideas, and now that is being paved over by the Trump administration.
Q: In a recent commentary you suggest the reinstatement of Jimmy Kimmel is not the victory many think. Why not?
I think we need to take FCC Chairman Brendan Carr at his word when he says, “This isn't the last shoe to drop,” and, “We're not done yet.” We are in the midst of what Chairman Carr calls a “massive shift in the dynamics of the media ecosystem.” We are all living through this shift as, for instance, internet platforms and services reshape both print and video communications. Clearly, Chairman Carr intends to play a part in that transition. To do so, he has said he will use the “permission structure that President Trump’s election has provided.” That permission structure has already seen the president threatening to have the FCC revoke broadcast licenses when their owners do not agree with him. Similarly, Chairman Carr’s famously said that ABC should deal with Jimmy Kimmel “the easy way” or he could do it “the hard way” presumably through the FCC’s authority over broadcast licenses.
Q: What is the current agenda chairman Carr wants to uphold?
The agenda is multifaceted, ranging from the end of DEI [Diversity, Equity, and Inclusion] in FCC-regulated companies, to using the FCC’s authority to approve mergers as a cudgel to achieve desired ends such as settling the Trump lawsuit against CBS, to changing the rules to allow greater concentration in broadcasting for FCC licensees that appear Trump-friendly.
Q: Given FCC’s unprecedented speech-related threats, should Congress clarify the FCC’s authority to penalize broadcast license holders as part of Capitol Hill's ongoing debate on updating the country’s telecommunications laws?
As a matter of fact, Chairman Carr has suggested the need for a rulemaking to clarify just what the public interest standard means for broadcasting. He has not followed through with that, however, and one must believe that he won’t for the simple fact that what appears to be his definition is at odds to the First Amendment and the statute authorizing the commission itself.
Q: How does free speech suffer when the media is silenced?
The Kimmel episode appears to illustrate how the Trump administration seeks to control what people hear by affecting what broadcasters say. Brendan Carr said it himself when he complained about the Biden administration's efforts to mitigate COVID misinformation: “Censorship is an authoritarian's dream.”
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The view of the Disney-owned El Capitan Entertainment Centre, home of ABC’s “Jimmy Kimmel Live!” in Hollywood, California. Photo by AaronP/Bauer-Griffin/GC Images.