President-elect Trump this
week selected sitting FCC Commissioner Brendan Carr to be the new Chairman of
the FCC starting on Inauguration Day, January 20. As a sitting
Commissioner, Carr can become permanent Chair immediately – no Senate
confirmation is necessary.
Current FCC Chair Jessica
Rosenworcel announced that, as is traditional, she will not only step down from
her position as Chair on January 20 and will also leave the Commission on that
date – leaving one empty seat on the FCC to be filled by the new President (to
permanently fill that vacancy, Senate confirmation is needed).
Until that third Republican seat is filled, Chairman Carr will be operating
with a Commission split 2-2 on
party lines, suggesting that initially any major Commission actions will need
to be ones that are bipartisan. However, when Commissioner Carr becomes
Chair, he can appoint the heads of the Bureaus and Divisions at the FCC that do
most of the routine processing of applications and issuing most of the
day-to-day interpretations of policy. As Carr has been at the FCC since
2012 and has served as a Commissioner since 2017, one would assume that he
already has in mind people to fill these positions – and thus his team should
be able to hit the ground running. What policies should broadcasters and
those in the broader media world be looking for from a Carr administration at
the FCC?
Immediately after the
election, we wrote this
article about several of the specific FCC issues where we
anticipated that a Republican administration would move forward with policies
different than those that have been pursued by the current
administration. Since his nomination, we have seen nothing that would
suggest that the issues that we highlighted earlier in the month will not be on
the Carr agenda. In our last article, we noted that the FCC could be
expected to take a different tact on the reinstatement of FCC Form 395-B, the
EEO form that would require broadcasters to break down their employees by
employment position and report on the gender, race, and ethnicity of the
employees in each employment category. In one of his first
tweets on X after his nomination was announced, Carr
said that the FCC would no longer be prioritizing “DEI” (Diversity, Equity, and
Inclusion) efforts – seemingly confirming, among other things, that a reversal
of the action on the Form 395-B could be in the works (which could easily be
done, as there are pending Petitions for Reconsideration of the reinstatement
along with pending appeals in the courts).
Carr has also called for
reining in Big Tech platforms and ending what he has referred to as the
“censorship cartel” between tech companies, the government, and major
advertisers. He has already sent letters to the heads of four major tech
companies asking for details of their cooperation with a company that provides
fact-checking and identification of disinformation to many media and tech
companies (see his
post to X here with a copy of those letters).
Having the FCC review the protections of social media platforms under Section
230 of the Communications Decency Act, as proposed in the first Trump
administration (see our posts here and here) is one
way in which this policy goal may be addressed.
Many have also suggested that
Carr may quickly move to relax media ownership rules – as that was the one
broadcast policy that he specifically identified in his chapter on FCC reforms
in the Project 2025 report from the Heritage Foundation (the Project 2025
report is here, with
the FCC discussion beginning at page 845). As we noted in our earlier
article, there is a court appeal pending challenging the FCC’s December 2023
decision to not relax media ownership rules, and the 2022 Quadrennial Review is
also underway – either of which may give Carr an opportunity to review these
rules.
But broadcasters should not
assume that they can ignore FCC rules, or that they will be immune from FCC
enforcement under a Carr administration. Carr has said that he sees the
public’s trust in media as being at an all-time low (see, for instance, this
tweet) and suggested that a review of the FCC’s “public
interest” standard that governs all of its regulatory activity should be a
focus of its review of media policy, as that standard can be used to help
restore the public’s trust in broadcast media. Carr has been critical of
several broadcasters’ activities that he saw as favoring one political or
policy position over another, so his moves to break up what he sees as the “censorship
cartel” may well extend to traditional media activities as well as those from
online tech companies.
As we have written before (see
for instance our articles here, here, here,
and here), the
FCC is limited by the First Amendment and Section 326 of the Communications Act
from censoring broadcasters or abridging their freedom of speech. Thus,
the ability of the FCC to penalize broadcasters for their decisions on what to
broadcast is very limited. Certainly, any new administration is unlikely
to form its own “censorship cartel.” But the Chairmanship of the
FCC provides a “bully pulpit” that can be used to influence the activities of
broadcasters and others who, in some way or another, rely on FCC regulatory
actions, even without regulatory change. Examples are legion – one can
look back to 1961 when FCC Chairman Newton Minnow delivered his “vast
wasteland” speech at an NAB Convention, condemning the
quality of broadcast programming and arguing that it was missing its potential
to truly serve the American public – to see how long the tradition of FCC
Chairs using their positions to influence what is transmitted to the public,
and how lasting the impact of the activities of FCC chairs can be. With
the advent of digital media, the pulpit of the FCC Chair has grown in its
reach, and its potential targets have grown perhaps even faster. It
appears that we will see the use of this bully pulpit, and perhaps of the
regulatory machinery of the FCC, to address controversial issues in all
media. We will be watching to see what is next.
