Key Points
- Senate lawmakers sparred over holding the FCC accountable for its chairman’s remarks that ignited a controversy over ABC’s late-night talk show.
- Some critics of FCC Chairman Carr have accused him of weaponizing the agency to fulfill the political wish list of President Donald Trump.
- Carr denies any undue influence, saying broadcasters were adhering to the “public interest” requirement of their licenses.
Free speech regulation took center stage again in Washington this week as lawmakers from both parties signaled growing interest in reining in perceived government influence over media and technology companies following an issue involving ABC’s late night talk show program last month.
At a hearing on Wednesday, the Senate Commerce Committee explored the issue of whether Federal Communications Commission (FCC) Chairman Brendan Carr inappropriately influenced a decision by Nexstar Media Group and Sinclair, Inc. to pull “Jimmy Kimmel Live” from around 60 local ABC affiliates last month, an action that ultimately led ABC parent Disney to put the show on hiatus for about a week.
The issue stemmed from Carr’s displeasure with a monologue aired on the show two days earlier, during which Kimmel wrongly implied that a man accused of assassinating political activist Charlie Kirk was aligned with supporters of President Donald Trump. Kimmel also took issue with the way Trump described a forthcoming ballroom at the White House when asked by a reporter about Kirk’s murder.
During a podcast with a conservative influencer, Carr threatened ABC with unspecified regulatory action in the future and said its networks affiliates should pre-empt the show. Nexstar and Sinclair affirmed their intention to do just that within hours of Carr’s appearance. Both broadcasters have pending deals before the FCC, but said their decisions were not influenced by Carr’s remarks.
Carr was expected to testify at the hearing on Wednesday, according to early media reports, but he ultimately did not show up.
“My fundamental question is, where is Brendan?” Senator Maria Cantwell, a Democrat from Washington, said at the event. “You might have the right hearing, not sure if we have the right witnesses. We need to understand the direction that we are going in our country to protect free speech.”
Senator Ted Cruz, the Chairman of the Committee, said Carr would still be held to answer for his remarks and the subsequent action by the ABC affiliates and the networks, though he didn’t say when. Cruz previously criticized Carr’s influence on the matter, saying it opened the door for Democrats to weaponize the agency should they ascend to political power in the future.
“The right to speak out is the foundation of a free society,” Cruz said. “It gives everyone — whether a senator or a citizen, a contrarian or a comedian — the power to persuade and to hold government accountable, and that’s why we need to defend and protect the most powerful weapon we have against the government’s ability to censor its own citizens: The First Amendment.”
Harold Feld, the Senior Vice President of Public Knowledge, accused politicians and FCC officials from both sides of the political aisle of leaning on the agency’s regulatory powers to stifle free speech in the past.
Specifically, he noted that the FCC during the Biden administration used its authority to reward political allies while holding media companies to account if their programming was critical of the president.
The comments appeared to stem from a petition lodged against WTXF (Channel 29), the Fox-owned TV station in Philadelphia, that sought to block a routine application to renew its broadcast license. Grassroots organizations said the channel was too connected to Fox News Media, a subsidiary of Fox that settled a news defamation lawsuit over controversial comments made about the outcome of the 2020 presidential election, which Biden won.
Under FCC Chairwoman Jessica Rosenworcel, the agency accepted public comment on the matter and allowed the WTXF license challenge to remain open for more than a year. In January, just before Rosenworcel stepped down, she dismissed the petition, calling it politically-motivated and improper. She also dismissed similar complaints against stations owned by the parent companies of ABC and NBC, which Carr re-opened after he became chairman. (It remains unclear if he had the legal authority to do so.)
Carr denies his comments about the Kimmel monologue motivated the broadcasters and the networks to pull the show. Instead, he claims the broadcasters were motivated by their requirement to serve the “public interest,” which is a condition of their broadcast license.
During a press conference on Tuesday, he restated his position.
“The point is, the FCC should be enforcing the public interest standard. That’s not a threat. That’s just something that Congress has asked us to do,” Carr said.
But the term “public interest” has never been defined, and Carr’s critics say he is using that vagueness to pursue those who draw the ire of President Trump.
During a panel appearance last month, FCC Commissioner Anna Gomez — the lone Democrat in power at the agency — said Carr’s weaponization of the term meant it was time to apply a concrete definition to it.
“I have called for the commission to initiate a rulemaking to define what it means by the public interest,” Gomez said. “Otherwise, we’re just regulating against what we don’t like, and that is a direct violation of the First Amendment.”
At the Senate hearing on Wednesday, Will Creeley, the Legal Director at the Foundation for Individual Rights and Expression, agreed with Gomez, saying Carr was improperly trying to define the standard on the basis of his own political agenda.
“These are not isolated incidents,” Creeley said. “The FCC’s role is to serve the public interest — not to define it through intimidation.”
