FCC Chair, and self-proclaimed supporter of the First Amendment, Ajit Pai has been noticeably silent in the wake of President Trump’s recent suggestion that the FCC look into revoking the broadcast licenses of NBC and others that air news stories that are unfavorable to the White House. Pai is finally speaking up, and confirming what we already knew: That the FCC doesn’t have the legal authority to take NBC off the air over a news story.
Putting aside for the fact that networks like NBC don’t generally have their own broadcast licenses — those are owned by the local affiliates (some of them subsidiaries of the same parent company as the network) that actually do the over-the-air broadcasting — so there’s nothing to really revoke, the FCC has minimal authority to regulate content-related matters, generally limiting it to matters of obscene and profane content.
Speaking on a panel at a George Mason University event earlier today, Pai broke his silence on this matter, telling the moderator, “I believe in the First Amendment. The FCC under my leadership will stand for the First Amendment, and under the law the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast.”
While the Commission does receive — and can investigate — claims of hoaxes or intentionally false and harmful news, the mere declaration by a President that a news story is untrue does not suffice as evidence. Otherwise, the White House would be able to shut down any TV station it chooses by simply claiming a news item is fake.
Besides, noted Pai today, getting into disputes about political news has traditionally “not been within the FCC’s jurisdiction.”
“I’m a lawyer by training,” notes the Chair. “I tend to hew as close as I can to the terms of the Communications Act and of course to other applicable legal principles. That’s the standard that we adopt, at least going forward.”
The President’s complaints about unfair treatment in the press have led him to publicly reference FCC equality requirements, though it’s unclear whether he’s been referring to the Equal Time rule or the Fairness Doctrine, which are two very different things.
The Equal Time rule involves the amount of airtime — through things like advertising and interviews — that a broadcast station provides to political candidates. It doesn’t really apply to regular news coverage, and certainly doesn’t regulate the content of any news stories.
The Fairness Doctrine, which was killed off in 1987, required broadcasters to give equal consideration to matters of political importance. While reinstating such a rule might benefit the White House, President Trump should not expect his FCC Chair to resurrect the Fairness Doctrine.
“It was an affront to the First Amendment to have the government micromanaging how much time a particular broadcast outlet decided to devote to a particular topic,” said Pai this morning. “The other thing — and this is often unremarked-upon in discussions about the Fairness Doctrine — it was an administrative nightmare. You had the FCC employees literally spending hours upon hours listening to broadcasts, watching them, and logging, to the second, how much time a broadcaster spent on one side of the issue versus the other.”
Pai and his fellow FCC commissioners are expected to testify before the House Energy & Commerce Committee next week, where you can be sure these issues will once again be raised.
Members of Congress who have been critical of the Chair offered him guarded praise following this morning’s panel discussion.
“This statement is better than nothing, but it is merely a reiteration of the FCC’s authorities under the law,” said Sen. Brian Schatz, (HI), Ranking Member of the Senate Subcommittee on Communications, Technology, Innovation, and the Internet. “What we needed is a full-throated defense of the independence of the FCC against political interference. When the President announced his intent to retaliate against a broadcaster based on content, the FCC should have rejected it.”