Former FCC Officials Want Its News Distortion Policy Ended

Carr rejected the petition in a post on X Thursday. “How about no,” he said. “On my watch, the FCC will continue to hold broadcasters accountable to their public interest obligations.”

The FCC "does not have the authority, the ability, or the constitutional right to go after broadcasters for their news content," said Commissioner Anna Gomez in a release responding to the petition. "The Communications Act forbids the Commission from censoring broadcasters, and the First Amendment protects journalistic choices from government intimidation. Nevertheless, this FCC has deployed a vague and ineffective News Distortion policy as a weapon to stretch its licensing authority and pressure newsrooms."

The FCC’s news distortion policy violates the First Amendment, chills broadcaster speech and isn’t needed because the agency has separate rules against broadcast hoaxes, said the petition. The rule is a “vestigial organ” and has been enforced only eight times in the past 60 years, it said. “The vast scope and vague language of the news distortion policy cast an omnipresent shadow over broadcasters’ freedom of expression while leaving the policy open to partisan weaponization.”

Previous enforcement actions using news distortion emphasized the policy’s “exceedingly narrow scope,” the petition said. Carr’s use of it to reopen complaints against ABC, CBS, and NBC “that cannot plausibly satisfy the precedents previously articulated in adjudications leaves greater confusion than ever about what exactly the policy proscribes.”

If the FCC doesn’t act on the petition, the organizations behind it could ask the courts to intervene to compel the agency to take it up, said former FCC aide Gigi Sohn in an interview. Sohn, along with frequent FCC opponent Andrew Schwartzman, is serving as counsel for the groups behind the petition. Attorneys told us that historically, efforts to petition the courts to force FCC action through writs of mandamus haven't fared well and are generally viewed as long shots. Sohn conceded that Carr can likely shelve the petition but said it's important to continue “to shine a light” on the agency’s actions. “We’re not just going to let it go.”

Carr said that the petitioners were hypocritical, alluding to past instances of what he has said was the same behavior that the petition attacks. “It is quite rich for the exact same people that pressured prior FCCs to censor conservatives *through the news distortion policy* to now object to the agency's even-handed application of the law,” he said. Though Carr didn’t elaborate, Sikes, Sohn and some other signatories previously supported a petition against the license of WTXF Philadelphia by the Media and Democracy Project. The filings against WTXF mentioned news distortion but primarily invoked the FCC’s character standards, based on court findings that WTXF’s parent company, Fox, had deliberately lied about the 2020 election. “It’s a very different set of facts,” Sohn told us about the WTXF situation.

“On my watch, the FCC will ensure that everyone gets fair treatment,” Carr said on X. “While that may seem like discrimination to those that benefited from past weaponizations ... that does not make it so.”

Clashing Arguments

Daniel Suhr, president of the Center for American Rights, which frequently files news distortion complaints, was dismissive of the petition. “A coalition of former FCC insiders desperate to seem relevant, represented by a Soros-funded left-wing front group founded by several Obama White House alumni, are bringing a hopeless rules petition to embarrass the Chairman,” he said. The Protect Democracy Project does receive funding from an organization affiliated with financier George Soros. “This is going nowhere, they know it, and they’re doing it anyway trying to score political points rather than to make serious policy,” Suhr said.

Jerald Fritz, a former aide to Fowler and a longtime executive at Sinclair Broadcasting, was one of several ex-aides who signed the petition, along with former FCC General Counsel Christopher Wright, who's now at HWG, and former Chiefs of Staff Kathryn Brown and Peter Pitsch. Fritz said in an interview that he signed the petition because he sees the FCC’s recent use of the policy as a “sword of Damocles” hanging over broadcasters. Fritz worked under Fowler in 1987 when the FCC repealed the fairness doctrine precisely to prevent that sort of weaponization, he said. Former Commissioners Rachelle Chong (R) and Ervin Duggan (D) were also signatories.

Senate Homeland Security Investigations Subcommittee ranking member Richard Blumenthal, D-Conn., said the FCC “should heed” its former officials. “Across the political spectrum, 1st Amendment Democracy defenders should support their petition [and] subsequent legal action.”

Carr said Blumenthal “repeatedly pressured a prior FCC to *enforce the News Distortion policy* against broadcasters that Democrats viewed as too conservative -- arguing that the First Amendment required it! He even indicated that the FCC should revoke their licenses,” an apparent reference to a 2018 letter from Blumenthal and other Democratic senators asking then-FCC Chairman Ajit Pai to review Sinclair's fitness to maintain its broadcast licenses (see 1804120026). “Now, [Blumenthal] says that the First Amendment requires the FCC to eliminate the entire policy.” Carr said. “You can't make this up.”