Conservatives and Public Interest Advocates Disagree on FCC Public Interest Standard

“Doing away with the FCC’s public interest authority could conceivably call into question a huge swath of the FCC’s rules, because almost everything the FCC does is rooted in the public interest,” Cheryl Leanza of the United Church of Christ's Media Justice Office told us. Free State Foundation President Randolph May argued that the public interest standard is so vague that it's effectively “a standardless standard.” May has advocated for decades for eliminating the standard.

Republican and Democratic lobbyists told us they’re skeptical that Cruz and Democrats will be able to reach anything resembling a compromise on repealing or revamping the public interest standard. They cited major stumbling blocks such as a large divide between Republicans and Democrats on how much to narrow the standard and FCC Chairman Brendan Carr’s comments about auctioning off broadcasters’ spectrum following repeal of the rules.

“I can’t picture how that would happen,” even given the interest that Cruz voiced on the matter during Senate Commerce’s Dec. 17 FCC oversight hearing, one media lobbyist said. “Both sides are going to turn it into a vehicle” for other tangentially related issues. The lobbyist noted that Democrats could choose to tack on a ban on softening the FCC’s broadcast-ownership cap, which would likely be "a poison pill for Republicans."

Getting rid of the public interest standard would prevent the FCC from using it as a lever against broadcast content but also leave the agency “powerless to do many things that are not so politically oriented,” said Clay Calvert, a nonresident senior fellow at the American Enterprise Institute. Attorneys also told us that the commission has often used its public interest authority as a justification for taking actions that haven’t been specifically laid out in legislation, and it would have much less discretionary power if that authority were removed.

Cruz and opponents of the public interest standard “are exploiting the fact that Carr is abusing and weaponizing [it] to argue that it should be gotten rid of,” said longtime public interest advocate Gigi Sohn.

“I don't think that because a federal agency abuses the law, you should repeal the law,” said Leanza. “Reform the agency to follow the law and to exercise its authority appropriately.”

Calvert said that, historically, the FCC’s public interest authority over broadcasters hasn’t led to the policing of content because the agency showed restraint. “Clearly, self-restraint is gone now when it comes to targeting speech that President [Donald] Trump doesn't like.” A more targeted congressional action to take away the FCC’s news distortion policy and broadcast hoax rules would be a less dramatic action that would also protect broadcast content, he added.

May disputed the argument that eliminating public interest authority would prevent the FCC from functioning. “Congress can do what it is supposed to do and just be more specific in directing and authorizing the FCC to carry out whatever functions that it wants the commission to perform,” May said. The current public interest standard could also be replaced with a more specific consumer welfare standard, which would require the FCC to consider competition and consumers in its actions.

Statute vs. Application

Joe Kane, the Information Technology and Innovation Foundation's director of broadband and spectrum policy, said the way the FCC has been applying the public interest standard to broadcasters doesn’t match its description in the statute. While Carr has repeatedly said that stations are required to operate in the public interest, the statute puts the obligation on the FCC to grant licenses only if doing so is in the public interest, Kane said.

“What it means for the Commission to find that its grant of a license would serve the public interest is substantively different from what it would mean for the Commission to impose a public interest obligation on the licensee,” Kane wrote in a recent filing in docket 25-322. In the statute, the FCC’s public interest is focused more on technical rules and preventing interference, Kane added. “The licensee can decide what content to broadcast (or not broadcast) within those technical limits.”

Carr’s repeated invocation of the FCC’s public interest authority over broadcast content and his perceived interest in preserving that power represents a historical shift, said Duke Law School professor Stuart Benjamin. It was Republican FCC Chairman Mark Fowler, under then-President Ronald Reagan, who eliminated the fairness doctrine, he pointed out. Carr’s goal of more aggressive FCC oversight of broadcast content represents change, while Cruz’s proposal to construe the public interest standard narrowly is a return to pattern, he said. "I really could imagine that some people on the left who have been sympathetic to the public interest standard will say to themselves, maybe aloud, 'The kinds of things that Carr is talking about made me realize that maybe I don't like the public interest standard so much.'"