Rosenworcel Rejects Network News Complaints; Carr Could Bring Them Back

Carr told reporters Thursday that the agency sat on the petition against Fox’s WTXF Philadelphia for 18 months without acting, only to reject it days before a leadership transition. “If this was a principled position, it is one that could have been asserted and taken at any point in the last 18 months," he said. “We'll see what happens with those dismissals. They are not beyond the reach of the FCC starting next week."

“I agree with the Chairwoman that we cannot allow our licensing authority to be weaponized to curtail freedom of the press,” said Commissioner Anna Gomez in a release. “The First Amendment is a pillar of American democracy, and our country needs a press free from interference from regulators like me. In fact, the Communications Act explicitly prohibits the Commission from censoring broadcasters,” Gomez added.

Commissioner Nathan Simington condemned the decisions in an email. “The MAD petition that held up the ordinary renewal of a broadcast license for a year never had any legal merit and was rightly dismissed,” Simington said. “The Center for American Rights petitions, on the other hand, properly should have been investigated by the agency, because the petitions -- and, in particular, the CBS petition -- credibly alleged serious violations of Commission rules.” NAB, ABC, Fox, NBC and CBS didn’t comment.

In two letters from the Enforcement Bureau and two Media Bureau orders, the agency rejected three complaints by the Center for American Rights filed in recent months against stations that ABC, CBS and NBC own, and also dismissed the Media and Democracy Project's 2023 petition to deny filed against WTXF's license renewal (see 2411190045). The CAR complaints were based on Fox ownership's settlement of a defamation suit connected with 2020 election denialism. The NBC complaint said the network violated the FCC’s equal opportunity rules with a Saturday Night Live appearance by Vice President Kamala Harris on the eve of the election, while the CBS and ABC complaints accused those networks of violating the news distortion rules through editing an interview with Harris and the moderation of a presidential debate between Harris and President-elect Donald Trump, respectively.

The CAR filings echo Trump's complaints made online and in news reports as the president-elect has repeatedly threatened the “licenses” of broadcast networks. The MAD petition called for a hearing on Fox’s fitness as a licensee after a 2023 Superior Court of Delaware ruling on a motion for summary judgment in Dominion Voting System’s defamation case against Fox over its 2020 election reporting. Although the filings target individual network-owned stations, all are focused on the conduct of the targeted networks rather than the station.

Reversal?

After becoming chair, Carr could reverse the bureau-level decisions and issue orders of reconsideration on the complaints, but it isn’t clear if he will, broadcast and public attorneys told us. Carr has repeatedly said the CAR complaints are worthy of FCC investigations, but he's seen as opposing the MAD petition against Fox. Parties could bring legal challenges against the agency over decisions rescinding Thursday’s orders, and treating the networks differently could complicate the FCC’s efforts to defend itself in court, attorneys told us.

Additionally, the CAR complaints appear to run counter to years of FCC precedent on the agency’s treatment of broadcasters' First Amendment rights, while Thursday's decisions are in line with those precedents, numerous attorneys told us. “The FCC deciding to go in the direction that it went is not a surprise and [is] consistent with what it did before,” said Public Knowledge’s Harold Feld. Dismissing the complaints forces the next FCC chair to publicly choose whether to bring them back and explain how doing so is in line with agency precedent, an FCC official told us.

Carr wouldn't need to reverse the bureau-level decisions to accomplish his agenda of acting against broadcast networks, broadcast industry attorneys told us. The FCC “has a thousand ways of making things difficult for broadcasters and networks,” Pillsbury broadcast attorney Scott Flick said. Though the CAR complaint against CBS was dismissed, CAR and others have also raised the matter in the docket concerning CBS’ sale of its stations to Skydance. That means Carr could still use it as the basis for action or conditions on that deal, attorneys told us. The dismissal of the complaints doesn’t practically limit his options, so Carr may have little reason to reverse Thursday’s decisions, attorneys told us.

Rejecting the complaints was an important and effective move by Rosenworcel and could slightly hamper FCC action against broadcasters, some supporters and opponents of the departing agency leader told us. Feld said, “It's a way to send a strong message on the way out, in a way other than a speech, that the FCC should stay far away from these kinds of things.” Republicans critical of Rosenworcel said the decisions' timing was suspect and runs counter to her previous acceptance of requests from Congress not to act on controversial matters after the 2024 election.

“I find the timing curious,” said former Carr aide Evan Swartztrauber. “If this is a decision on principle then one has to wonder why the chair didn't act on these petitions in the past 18 months?” Would the FCC have acted on these complaints if Harris had won the election? a former senior agency official asked: “Why is she flagrantly defying the clear directive from Congress to stop work on controversial issues -- a directive she cheered on four years ago?”

Freedom Forum First Amendment expert Kevin Goldberg said Rosenworcel is “reminding us that the First Amendment protects all of us -- and each of us may well need that protection at some point even if it’s not right now, so it’s important to stand up for the First Amendment whenever it is threatened and regardless of whose First Amendment rights are being threatened." Added Feld, “If Carr wants to go ahead and bring this back, it makes the contrast very clear.” Said Nico Perrino, Foundation for Individual Rights and Expression executive vice president, in a post on X, “Exactly right: The FCC's licensing regime must not be weaponized to target politically disfavored speech,”

Gigi Sohn, American Association for Public Broadband executive director, posted on X, criticizing Rosenworcel for lumping the petition against Fox with the less substantial CAR petitions and not acting on the MAD filing sooner. “This is failure to lead,” said Sohn, a former aide to FCC Chair Tom Wheeler and a onetime nominee for the commission. “Does she believe that a broadcast licensee's character is irrelevant to whether it's qualified to control the public's airwaves?” she said in another post. “As [the] Chair and the incoming Chair know, being a broadcaster is a public trust. It's not an entitlement that companies can hold in perpetuity regardless of what they do,” Sohn said.

Thursday's Decisions

The news-distortion complaints against CBS and ABC call for FCC actions that run counter to long-standing commission policies against interfering with news broadcasts, the Enforcement Bureau said in both letters, citing quotations from a 2020 decision by the agency under then-Chairman Ajit Pai, rejecting calls for requiring COVID-19 misinformation disclaimers on news broadcasts and a 2021 news release that Carr himself issued. “A newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them,” Carr said in a 2021 release responding to Democratic lawmakers questioning media outlets on their coverage of the Jan. 6 attack against the U.S. Capitol.

On the equal opportunity complaint, the Media Bureau said NBC satisfied the FCC’s rules: Trump and Hung Cao, the Republican who challenged Sen. Tim Kaine, D-Va., were offered and used ad time the network provided them before the election (see 2411050049). Kaine appeared on the same SNL episode as Harris. “We fundamentally believe that several actions taken by the three major networks were partisan, dishonest and designed to support Vice President Harris in her bid to become President,” said CAR Chairman Patrick Hughes in an email. “We will continue to pursue avenues to ensure the American public is protected from media manipulation of our Republic. The First Amendment does not protect intentional misrepresentation or fraud.”

The MAD petition against Fox’s WTXF Philadelphia doesn’t sufficiently raise issues about the specific station’s behavior and the character matters connected with the court ruling don’t satisfy FCC requirements to be “disqualifying character issues,” the Media Bureau said in an order granting WTXF’s license renewal. “The allegations here involve non-FCC-related misconduct -- material carried on a cable network under common control with the Licensee that a state court found to be false.” The court’s ruling that Fox aired false information is “not an ‘ultimate adjudication’ on the issue of ‘actual malice.’” The MAD petition is “clearly distinct from the other politically motivated complaints,” MAD said in a release promising an appeal. “It simply will be wrong if the Murdochs and Fox escape any responsibility for their prominent role for the riot at the Capitol on January 6th and the efforts to overturn the results of a presidential election."