President Donald Trump today suggested that the Federal Communications Commission should challenge an NBC license because of “fake news.”
“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” Trump tweeted.
FCC Commissioner Jessica Rosenworcel offered a brief response to Trump, saying that’s “not how it works” and linking to a manual that discusses the FCC’s regulation of broadcast radio and TV licenses.
Not how it works.
See here: https://t.co/1JgiJyk5wK https://t.co/1aNpYsk7BG
— Jessica Rosenworcel (@JRosenworcel) October 11, 2017
Threats from public officials to stifle protected speech can violate the First Amendment. Attorney and free speech advocate Adam Steinbaugh, who works for the Foundation for Individual Rights in Education (FIRE), pointed to a federal appeals court decision from 2003 that tackles this subject.
The court decision said:
[A] public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights even if the public-official defendant lacks direct regulatory or decision-making authority over the plaintiff or a third party that facilitates the plaintiff’s speech.
Trump’s threat came shortly after he claimed an NBC news story about his nuclear ambitions is “pure fiction.” NBC reported that Trump “said he wanted what amounted to a nearly tenfold increase in the US nuclear arsenal during a gathering this past summer of the nation’s highest-ranking national security leaders.”
The White House has previously confirmed that Trump’s tweets are official statements from the president.
Trump also told reporters today that “it is frankly disgusting the way the press is able to write whatever they want to write.” (Trump can blame the First Amendment for that.)
FCC licenses stations, not networks
Sadly for Trump, there isn’t one NBC license that could be revoked or not renewed in order to take the network off the air. The FCC “does not license networks,” Politico explained today. The FCC issues broadcast licenses to stations. NBC, which is owned by Comcast, “holds broadcast licenses for several stations. NBC also airs on affiliate stations owned by other companies.”
NBC owns and operates stations in major markets including New York City; Los Angeles; Chicago; San Francisco; Philadelphia; Washington, DC; Miami; Dallas; and Boston. NBC also owns Telemundo stations. But in many cities, NBC content airs on affiliate stations that are not owned by NBC.
The FCC is an independent agency and is not supposed to take orders from the White House, even though the president is responsible for nominating FCC commissioners and selecting the chairperson. Trump could try to pressure the FCC to take action, but the process is convoluted, and FCC Chairman Ajit Pai hasn’t publicly signaled any willingness to help the president fight his various battles against news organizations.
“Don’t conflate ‘revocation,’ which is taking away a license mid-term, with renewal, which is when a challenge could be filed,” Georgetown Law lecturer Andrew Schwartzman, an attorney who specializes in media and telecommunications policy, told Ars today. “Revocation is essentially impossible; the FCC doesn’t even try.”
Trump’s tweet “is not a meaningful threat,” Schwartzman also said. “The broadcasters have gotten the Communications Act amended to make it impossible to lose a license. Even if a meritorious challenge were filed, it would take five or 10 years to litigate, during which time the broadcaster continues to operate the station.”
Licenses expire on a staggered basis depending on the state they are located in, according to the FCC manual. “Before we can renew a station’s license, we must first determine whether, during the preceding license term, the licensee has served the public interest; has not committed any serious violations of the Communications Act or the FCC’s rules; and has not committed other violations which, taken together, would constitute a pattern of abuse,” the document says.
Politico has some further details on the process:
Local residents or competitors can file a challenge to a station’s license renewal, but the basis for such a challenge is extremely limited—it must be a case where the station systematically violated the FCC’s rules or lacked the requisite “character” to hold the license. That is usually defined as a felony conviction.
During his election campaign, Trump said that Comcast’s purchase of NBC “concentrated far too much power in one massive entity that is trying to tell the voters what to think and what to do.” Trump said his administration would “look at breaking that deal up,” but hasn’t followed through on the threat.
Trump threat is Nixon-esque, Democrat says
While it seems unlikely that NBC stations would lose licenses because of presidential interference, Democrats in Congress expressed concern that Trump could succeed in attempts to infringe upon the freedom of the press.
“The president’s threat against NBC and other media outlets is far from empty,” Senator Brian Schatz (D-Hawaii) said in a statement released today. “In 1974, President Nixon and his top aides discussed using the FCC’s license renewal process to punish The Washington Post for its Watergate coverage. Today, Donald Trump has threatened to do the same to NBC. In confirmation hearings for Ajit Pai, we raised this possibility. Now, the FCC must show that it is loyal to the law, not the president, and make clear that it rejects this kind of interference.”
Sen. Edward J. Markey (D-Mass.) wrote a letter to Pai today, urging the chairman to “maintain the FCC’s charter as an independent agency and withstand any urges from President Trump to harm the news media and infringe upon the First Amendment.”
“Any insinuation that elected officials could use the levers of government to control or sensor the news media would represent a startling degradation of the freedom of press,” Markey also said in his letter to Pai.
Markey asked Pai to “publicly refuse to challenge the license of any broadcaster because the president dislikes its coverage.” Markey also asked Pai to provide Congress with “information about any correspondence or communications from the White House or other members of the Trump administration that have encouraged you to take action against a broadcaster.”
We contacted Chairman Pai’s office and NBC about Trump’s tweet today, and we will update this story if we get a response from either of them.