Newsmax Blackout Not Seen Spurring FCC Action, Congressional Hearings
FCC action on Newsmax's January blackout on DirecTV (see 2301250042) is unlikely, though it generated a brief burst of complaints filed with the FCC plus House GOP lawmaker ire, media industry officials said in interviews. There also have been almost no signals a congressional hearing is likely in the near future, lawmakers and media observers told us. Newsmax and DirecTV didn't comment.
The FCC received about five dozen complaints about the blackout between Jan. 24, when the news network went dark on the direct broadcast satellite operator's channel lineup, and Feb. 10, when we filed a Freedom of Information Act request with the agency. The bulk of the complaints filed with the FCC came Jan. 25 and 26, immediately after the blackout.
Even if Newsmax files a complaint with the agency, there's not much the FCC can do, emailed Duke University law professor Stuart Benjamin. Communications Act Section 616 has the FCC regulating MVPD discrimination against unaffiliated programmers, but the U.S. Court of Appeals for the D.C. Circuit's 2016 Tennis Channel v. FCC ruling set a high bar for a channel challenging a decision not to be carried, he said. MVPDs would also have a First Amendment argument against being required to carry channels they don't want to carry. A First Amendment argument would be "clearer" if DirecTV said it dropped Newsmax in part because of a disagreement with the channel's content and viewpoint, Benjamin said.
The FCC said it has limited jurisdiction over MVPDs' programming choices under the Communications Act.
House Oversight Committee Chairman James Comer, R-Ky., and Communications Subcommittee Chairman Bob Latta, R-Ohio, indicated to us in recent weeks they don't plan to hold hearings on DirecTV's decision to drop Newsmax soon but reserved the option to do so later if there’s not a satisfactory resolution to the dispute. Republican members of House Oversight and the new House Judiciary Weaponization of the Federal Government Subcommittee in late January began urging the panels to hold hearings on the DirecTV-Newsmax dispute (see 2302010032).
House Weaponization didn't comment on their plans. Senate Commerce Committee ranking member Ted Cruz, R-Texas, mentioned the issue during now-withdrawn FCC nominee Gigi Sohn's Feb. 14 confirmation hearing (see 2302140077), prompting Sohn to say she believed Newsmax's "deplatforming" is "an opportunity" for the commission "to look at the practices of bundling and most-favored nation clauses." House Speaker Kevin McCarthy, R-Calif., also voiced vague support in early February for looking into DirecTV's actions.
“I’m hoping” a House Oversight hearing won’t be necessary because “I’ve strongly encouraged” DirecTV CEO Bill Morrow and Newsmax CEO Christopher Ruddy “to get this resolved” off Capitol Hill, Comer said in an interview before the chamber began a recess set to end Thursday. “I’m not certain” House Oversight “is the appropriate place for that hearing, but it’s something that’s a big concern for Republican members” because they perceive it as an instance of censorship of conservative media outlets. The panel's agenda this week includes hearings on the White House's cybersecurity strategy (see 2303020051) and what Republicans view as Bureau of Alcohol, Tobacco and Firearms abuses of the Second Amendment.
“Right now we have nothing on ” the House Commerce Committee calendar about DirecTV-Newsmax due to the panel’s “pretty aggressive” schedule on other policy matters like advancing the Satellite and Telecommunications Streamlining Act (HR-1338) to the floor, Latta told us. “We always want to hear” concerns lawmakers raise about anti-conservative censorship, he said, but he wants to monitor how negotiations between DirecTV and Newsmax progress. House Commerce plans a Thursday hearing with TikTok CEO Shou Zi Chew (see 2301300028).
House Communications ranking member Doris Matsui, D-Calif., and others would prefer that Commerce and the subpanel not wade into the dispute amid the existing politicization. “We want” any hearings House Communications does “to be as bipartisan as possible because we think this is one of the only places” in the chamber “where some agreement is possible” right now, she told us.
Rep. Anna Eshoo, D-Calif., rejects Republicans’ claims DirecTV’s decision to drop Newsmax stemmed from a letter she and now-former Rep. Jerry McNerney, D-Calif., sent in 2021 asking top MVPDs to justify carrying Newsmax, One America News and Fox News (see 2102220068). “They’re the ones trying to draw that connection,” Eshoo told us. “You should ask them” to explain the correlation.
The vast majority of complaints filed with the FCC alleged political viewpoint discrimination by DirecTV and/or majority owner AT&T. A Jan. 25 Laveen, Arizona, complaint said, "There should be a free exchange of ideas on the news [instead of control] by companies that can deplatform people who don't think the exact way they do. When you allow silencing of [dissenting] voices you are headed towards authoritarianism or worse yet communism."
"Has the FCC gone soft? Are you chicken?" asked a Portsmouth, New Hampshire, complaint Jan. 27. "These are serious questions. Are you bought and paid for by BIG TECH? Our Government agencies need to be doing their work on behalf of the American people and NOT BIG BUSINESS."
Most complaints also urged direct FCC action. "TV is supposed to be a Public Forum for Free and Open Discourse and access to thereof and this Provider Conduct is in open and direct conflict with those Policy Standards. Please look into this," said a Jan. 25 complaint from Los Angeles. "I DEMAND they immediately [lose] their broadcast license unless they restore Newsmax TV NOW," said a Jan. 26 complaint from Thorndale, Texas. "I will also be contacting my congressman and Senators to launch an investigation of DirecTV, AT&T and the FCC (if you do nothing about this)!!!" DirecTV "is censoring people of their programming that they do not agree with," said a Jan. 31 complaint from Spring, Texas. "Please look into and Force AT&T to reinstate their programming and issue a big fine against them." Newsmax "should not be discriminated against because of their political point of view," said a Hernando, Florida, complaint on Jan. 26, that also called for congressional hearings.
While most complaints charged political viewpoint censorship, a handful involved consumer protection. "If you could please make them cancel my contract without them charging me the early termination fee I would greatly appreciate it because I did not break this contract DIRECTV/AT&T broke the contract by taking away my Newsmax programming that I watch every single day," a Morgan Hill, California, complaint said Jan. 30.