FCC Commissioner Brendan Carr’s recent warning letter to Disney CEO Bob Iger (see 2412240021) appears politically motivated, could be read as a reversal of Carr’s past stances on sticking to the text of FCC rules and evokes the long-defunct fairness doctrine, according to former FCC commissioners, academics and attorneys we interviewed. President-elect Donald Trump has selected Carr to head the FCC.
FCC Chairwoman Jessica Rosenworcel appears intent on closing several outstanding wireless issues in her final weeks at the helm, but industry experts said it appears unlikely she will tackle controversial items or launch anything. That approach differs from the way former FCC Chairman Ajit Pai conducted business at the end of the first Donald Trump presidency.
The extent to which the U.S. Supreme Court decides the USF challenge on theoretical rather than practical grounds could have major implications for whether the court issues a decision that overturns the program's funding mechanism. The court said last week it will hear a challenge to the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision, which found the USF contribution factor is a "misbegotten tax.” Consumers' Research challenged the contribution factor in the 5th Circuit and other courts.
The incoming Republican administration and Congress will likely work at rolling back many of the current FCC’s policies through a combination of agency action, court decisions and the Congressional Review Act (CRA), attorneys and analysts told us in interviews. The CRA's threat also will likely limit the current FCC's agenda, they said. “The CRA is kind of looming over anything the FCC wants to try to do before the administration switches over,” said Jeffrey Westling, American Action Forum director-technology and innovation.
The group behind recent FCC complaints against CBS and ABC over their news coverage filed an equal time complaint against NBC and its station WNBC New York Monday over Democratic presidential nominee Kamala Harris’ weekend appearance on Saturday Night Live (see 2411040057). The complaint from the Center for American Rights echoes points first raised by FCC Commissioner Brendan Carr and calls for “a substantial fine” against NBC. “Broadcasters cannot abuse their licenses by airing what amounts to a free commercial promoting one candidate the weekend before the presidential election,” said CAR President Daniel Suhr in a news release. FCC Commissioner Nathan Simington backed the complaint Monday, saying “I urge Commission leadership to take these credible allegations seriously,” but multiple broadcast attorneys told us NBC appears to have satisfied the FCC’s rules.
The U.S. Supreme Court’s decision to grant certiorari earlier this month in a case from the 9th U.S. Circuit Court of Appeals, McLaughlin Chiropractic Associates v. McKesson, could have implications beyond the FCC’s legal interpretation of the Telephone Consumer Protection Act, legal experts told us. SCOTUS began its current term Oct. 7.
The FCC released its order approving 3-2 radio broadcaster Audacy’s request for a temporary waiver of its foreign-ownership requirements. The dissents from both FCC Republicans condemn the order as a deviation from normal FCC procedure, but neither mentions by name the involvement of the Soros family in the deal, though that has been the main focus of Republican lawmakers and conservative media critical of the restructuring. Commissioner Brendan Carr previously called the waiver a “Soros shortcut.” To suggest that Audacy is receiving special treatment is “cynical and wrong,” said FCC Chairwoman Jessica Rosenworcel, pointing to numerous similar grants from the FCC going back to 2018. “Our practice here and in these prior cases is designed to facilitate the prompt and orderly emergence from bankruptcy of a company that is a licensee under the Communications Act.”
After senators sent letters to all five FCC commissioners Friday calling for the agency to avoid “weaponization” of its licensing authority against broadcasters, Commissioner Nathan Simington responded, saying the FCC should renew the license of Fox station WTXF-TV Philadelphia over the opposition of public interest group the Media and Democracy Project (MAD). Letters from Sens. Ed Markey, D-Mass., and Ron Wyden, D-Ore., referenced recent comments from Republican presidential nominee Donald Trump against ABC (see 2409120056).
In a dissent attached to a combined $3.6 million forfeiture against Sinclair Broadcast and others over kidvid violations, FCC Commissioner Nathan Simington has vowed he will dissent from monetary forfeitures until the agency “formally determines the bounds of its enforcement authority.” Simington's move comes in the wake of the recent U.S. Supreme Court decision SEC v. Jarkesy. The order was approved 3-2, with Commissioner Brendan Carr also dissenting. The forfeiture order was adopted Aug.14, but not released until Thursday. The FCC didn't immediately comment on the delay. “I call on the Commission to open a Notice of Inquiry to determine the new constitutional contours of Commission enforcement authority,” Simington wrote. “The statutory structure governing the FCC’s forfeiture power is quite different from that of the SEC,” the FCC said in a footnote in the order, arguing that the agency’s enforcement actions don’t violate the Seventh Amendment right to a jury trial as SCOTUS ruled the SEC’s do.
The ultimate makeup of the 6th U.S. Circuit Court of Appeals panel that hears the review of the FCC’s net neutrality order may not make much difference, some legal experts told us, in the wake of recent U.S. Supreme Court decisions. They doubted that the panel (docket 24-7000) will delve deeply into case law, instead simply deciding that going forward it's Congress, not the FCC, that must address any case that raises "major questions." Oral argument is scheduled for Oct. 31.