Wheeler, Other Carr Critics Urge Congress to Rein in FCC Hurting Media's Free Speech
Former FCC Chairman Tom Wheeler and other witnesses at a Public Knowledge event Wednesday called for Congress to end what they see as actions by Chairman Brendan Carr's commission infringing media's First Amendment rights. PK CEO Chris Lewis framed the event as the first in an anticipated series of “people’s oversight” hearings on the FCC and other federal agencies in response to what he sees as Congress’ failure to counter Trump administration actions against the president's perceived enemies.
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“This idea of a people's oversight hearing … [would] not even exist” if Congress was adequately monitoring the FCC and other agencies’ conduct, Lewis said. “Oversight hearings are something that Congress does, not little nonprofits like” PK, but as of Wednesday, "there has not been one oversight hearing this year" on the FCC. The Senate Commerce Committee plans to hold one Dec. 17 after mounting pressure from panel Democrats to bring in Carr (see 2511100042). Democrats in part want to question Carr about his mid-September comments against ABC and parent Disney, which were widely perceived as bringing about the network’s since-reversed decision to pull Jimmy Kimmel Live! off the air (see 2509220059).
Wheeler said President Donald Trump has overturned the FCC’s “balance” as an “amphibian existing between the administration and the Congress. Yes, the leadership is appointed by the president and so, presumably, is in tune with administration positions, but it's administering a statute written by the Congress that is supposed to be overseen by” Capitol Hill. Wheeler said that during his chairmanship, congressional Republicans held several FCC oversight hearings because they “did not like” the commission’s now-rescinded 2015 net neutrality rules “and the fact that we agreed with the position of” then-President Barack Obama on reclassifying broadband as a Communications Act Title II service.
The structure of the FCC doesn’t necessarily require statutory changes to rein in the type of “jawboning” that critics see in Carr’s Kimmel comments, Wheeler said. “The outside pressures that can be brought to bear on the agency” are the real problem. “Enabling people to bring private lawsuits against overuse of official authority is one way to do that,” he said: A “spine is a terrible thing to waste, and that's true not just when it comes to corporations giving in to government demands. When Congress abdicates its oversight authority, when Congress will not stand up to an administration, then you have a deeper problem.”
'Blurred' Lines
American Association for Public Broadband Executive Director Gigi Sohn, who was an unsuccessful FCC nominee during the Biden administration, said Congress should “limit the power of” the commission chair in response to Carr’s actions. She argued that it’s now “chillingly plausible” that the FCC may not exist “in 10 years, [a notion that] not long ago … would have sounded absurd.” Carr “hasn't just blurred the line between the FCC and the White House; he's obliterated it,” Sohn said. “He even celebrates it [by wearing] the gold lapel pin of Trump's head and [publicizing] photo ops on Air Force One.” Those are “symbols of loyalty, not independence,” she said. “But the real damage is in his actions,” including his Kimmel comments.
Carr has “done an awful lot without the partnership” of fellow Commissioners Anna Gomez (D) and Olivia Trusty (R), Sohn said. “That’s because he can.” The FCC chair “has way too much power” under the current structure, she said. “If the chair decides that the other commissioners can’t talk to the bureau chiefs, they can do that. They control the data. They control everything.” If “two other commissioners want to call a meeting, they should be able to do that,” Sohn said. She raised concerns about a former senior Hill staffer’s recent comment “that the FCC had become so political it should simply be folded into the Department of Commerce. That sentiment is spreading, and it's dangerous.”
Robert Corn-Revere, the Foundation for Individual Rights and Expression's chief counsel, pointed to the pending Justice Against Weaponized Bureaucratic Outreach to Network Expression Act from Senate Commerce Chairman Ted Cruz, R-Texas, as one way to rein in the FCC. The measure would prevent future instances of secret government censorship campaigns by creating a cause of action targeting such actions. “Something like that would go a long way toward curbing the abuses of an agency like the FCC, because you have to be able to get into court to enforce those constitutional norms,” Corn-Revere said. He praised Cruz for swiftly criticizing Carr’s Kimmel comments (see 2509190059), which was “one of the things that I think helped blunt its force.”
Carr’s “characterization of the FCC authority [to regulate broadcast programming] is distorted and overstated,” Corn-Revere added. Federal law “denies the FCC the power of censorship, as well as the ability to promulgate any regulation or commission condition that interferes with freedom of speech. And the Supreme Court has long made it clear that the public interest standard necessarily invites reference to First Amendment principles.”
The FCC didn't comment.