Why the FCC Can Investigate Broadcasters — Even Big Names Like Kimmel
I’ll explain how the FCC’s authority really works, why an inquiry into broadcasters is lawful under existing statutes, and why political blowback doesn’t change the law. I’ll show the difference between lawful FCC action and illegal executive branch pressure on platforms. I’ll close with why reform is a legitimate, separate debate from whether an investigation fits current law.
The FCC was born in an era when the airwaves were scarce and the government treated spectrum access as a public trust. That legacy left the agency a special duty: licenses to use the public spectrum must serve the public interest. Many conservatives question whether that framework fits the modern, internet-centered media environment.
But questioning the wisdom of a law is different from what the law actually says right now. Under current federal statute, the Commission has explicit statutory language tying licensing and renewals to public interest obligations. Those statutory provisions give the FCC discretion to investigate whether licensees are meeting those obligations.
(a) Considerations in granting application
Subject to the provisions of this section, the Commission shall determine… whether the public interest, convenience, and necessity will be served by the granting of such application….
The renewal standard is similarly framed to focus on service to the public interest during the prior license term. An agency with that mandate is empowered to ask questions when allegations arise about whether a licensee has fulfilled its obligations. That is the statutory basis for inquiries like the one over comments on a broadcast program.
(1). Standards for renewal:
If the license of a broadcast station submits an application to the Commission for renewal of such license the Commission shall grant the application if it finds, with respect to that station during the preceding term of its license —
(A) the station has served the public interest, convenience, and necessity;
(B) there have been no serious violations by the licensee of this chapter or the rules and regulations of the Commission; and
(C) there have been no other violations by the license of this chapter or the rules and regulations of the Commission which, taken together, would constitute a pattern of abuse.
For decades the Supreme Court has acknowledged the FCC’s broad discretion in defining “public interest.” Judicial precedent describes that phrase as flexible and adaptive to the shifting realities of broadcasting. That latitude is the legal hinge that allows the Commission to examine programming and management decisions under the public interest rubric.
In … granting, denying modifying or revoking licenses for the operation of stations, “public convenience, interest, or necessity” was the touchstone for the exercise of the Commission’s authority … [T]his criterion … serves as a supple instrument for the exercise of discretion … Necessarily, therefore, the subordinate questions of procedure in ascertaining the public interest, when the Commission’s licensing authority is invoked… were explicitly and by implication left to the Commission’s own devising … Underlying the whole law is recognition of the rapidly fluctuating factors characteristic of the evolution of broadcasting and of the corresponding requirement that the administrative process possess sufficient flexibility to adjust itself to these factors. Thus, it is highly significant that … a license may not be issued for more than three years, and, in deciding whether to renew the license, just as in deciding whether to issue it in the first place, the Commission must judge by the standard of “public convenience, interest, or necessity.”
There is a clear line separating lawful agency scrutiny from the partisan, back-channel pressure campaigns conducted by federal officials. Conservative critics are right to condemn the Biden administration’s admitted attempts to strong-arm social platforms to remove content. Those actions are of a different constitutional quality than an FCC inquiry rooted in statute.
The law allows the FCC to investigate allegations of “news distortion” when they raise substantial, material questions about a licensee’s conduct. Courts have instructed the Commission to treat allegations collectively rather than isolate every item to death. That approach creates room for the FCC to consider patterns, policies, and evidence of management culpability.
In determining whether an allegation of news distortion raises a question about the licensee’s ability to serve the public interest, the Commission analyzes both the substantiality and the materiality of the allegation. The Commission regards an allegation as material only if the licensee itself is said to have participated in, directed, or at least acquiesced in a pattern of news distortion.
An allegation of distortion is “substantial” when it meets two conditions as we summarized in an earlier case:
[F]irst, … the distortion … [must] be deliberately intended to slant or mislead. It is not enough to dispute the accuracy of a news report … or to question the legitimate editorial decisions of the broadcaster…. The allegation of deliberate distortion must be supported by “extrinsic evidence,” that is, evidence other than the broadcast itself, such as written or oral instructions from station management, outtakes, or evidence of bribery.
Second, the distortion must involve a significant event and not merely a minor or incidental aspect of the news report…. [T]he Commission tolerates … practices [such as staging and distortion] unless they “affect[ ] the basic accuracy of the events reported.”
That ruling also warned the Commission against dismissing claims without considering the full body of evidence. Allegations that point to a broader editorial policy or comments from news managers must be weighed together when deciding whether to pursue a formal inquiry. The standard for raising a substantial question is lower than the standard for proving intentional distortion.
[T]he Commission’s denial of Serafyn’s petition also rested upon the alternative ground that he had not alleged a general pattern of distortion extending beyond that one episode. Upon appeal Serafyn argues … that he did present evidence regarding CBS’s general policy about distortion… and that the Commission failed to discuss or even to mention this evidence. Both [Mike] Wallace’s comment (“you don’t like to baldly lie, but I have”) and [Don] Hewitt’s (“it’s the small crime vs. the greater good”) are, to say the least, suggestive. Furthermore, both Wallace … and Hewitt are likely members of the “news management” whose decisions can fairly be attributed to the licensee…. The Commission’s failure to discuss Serafyn’s allegation relating to CBS’s policy on veracity is therefore troubling…. The Commission must consider these allegations upon remand.
The FCC also has a specific anti-hoax rule that targets false reporting about crimes or catastrophes that foreseeably causes immediate public harm. That regulation is narrowly tailored and aimed at real-time, harmful misinformation that diverts law enforcement or endangers public safety. Casual commentary days after an incident normally will not meet that demanding standard.
(a) No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or a catastrophe if:
(1) The licensee knows this information is false;
(2) It is foreseeable that broadcast of the information will cause substantial public harm, and
(3) Broadcast of the information does in fact directly cause substantial public harm.
….
For purposes of this rule, “public harm” must begin immediately, and cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties….
Bottom line: under current law an FCC inquiry into broadcasting practices is defensible and rooted in statute and precedent. Conservatives can and should challenge any overreach, and pressing for legislative reform is the right path if we want to strip agencies of content-related authority. Until then, an investigation is inconvenient to some, but it is not itself unlawful under the statutes and cases that govern licensing.
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“Shipwreckedcrew” is the nom de guerre of attorney William “Bill” Shipley. Since October 2021, Bill has represented dozens of defendants charged in connection with January 6. His legal work is paid for primarily from contributions to the January 6 Legal Defense Fund on GiveSendGo.
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h/t: Red State
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