Carr Expects CBS Will Comply With FCC Transcript Request

Broadcast attorneys and academics told us that CBS owner Paramount Global may have little choice but to comply due to its pending $8 billion sale to Skydance. However, they also said the matter is a blow to freedom of the press and a reversal of the agency’s long-standing policies against interfering with newsrooms. “The fact that they're allowing the FCC now to question their editorial decision-making really tends to hit into dangerous territory,” said DePauw University professor of communication Jeffrey McCall. Indeed, Carr said Monday, “You don't want the FCC leaning in too heavily on this,” referring to the issue of news distortion. As a commissioner, Carr said on multiple occasions that the FCC and government shouldn’t interfere with speech or newsrooms. Commissioner Anna Gomez condemned the FCC investigation into CBS last week.

“We actually haven't made any decision, but there's no way the FCC can adjudicate this claim without getting a copy of the transcript,” Carr said Monday. CBS didn’t respond to a request for comment, but CBS News said last week that it's "legally compelled to comply" with the FCC’s request.

Carr also condemned his predecessor, former FCC Chairwoman Jessica Rosenworcel, for dismissing the news distortion complaint against CBS from the Center for American Rights as one of her final acts as chair. “I'm not sure how you can possibly do that without seeing the actual video to see what was the real answer.” The Enforcement Bureau reinstated the complaint shortly after Carr took over as chairman.

Broadcast attorneys told us that it isn’t unprecedented for the FCC to request video or other content from broadcasters during enforcement investigations into matters such as indecency. Moreover, the agency has wide discretion over evidence requests in enforcement inquiries. Unlike with civil subpoenas for evidence, “there is no immediate avenue to ‘quash’ an LOI [letter of inquiry] in federal court, and attempts to obtain internal Commission review of the scope of an LOI have to date proved unsuccessful,” said former FCC General Counsel Tom Johnson in a white paper on EB reform last year.

But requesting video of content that was publicly aired is different from requesting an unedited transcript, said Arthur Belendiuk of Smithwick Belendiuk. Choosing what parts of an interview to publish is editorial discretion, not news distortion, he said. “Carr is using the FCC to go after Trump’s enemies.” Belendiuk represents the Media and Democracy Project, which has pushed the FCC to act against Fox over false news reports.

“The classic case” of a valid accusation of news distortion “is [when] someone says yes to an answer, and you splice in a no answer,” Carr said Monday. CBS editing the video for clarity and length “would be fine,” he said. “Are there other reasons why the editing took place? We're going to take a look at that, and we're open-minded as to potential consequences.”

Carr didn’t say Monday whether the FCC will make the unedited transcript public, but broadcast attorneys expect it will, they told us. “I haven’t made a final decision on that, but I do think that transparency here is incredibly important. I do think the American public ultimately deserve to see this for themselves,” Carr said.

The public release of the transcript could have implications for a $10 billion lawsuit President Donald Trump filed against CBS over the Harris interview. CBS is widely expected to seek a settlement, as ABC recently did in another Trump lawsuit. It agreed to pay $15 million to a foundation for construction of Trump’s presidential library.

If the FCC finds that CBS committed a news distortion violation, the agency is likely to release the transcript as evidence, attorneys told us. While companies submitting evidence in enforcement inquiries can request that it be made confidential, the FCC isn’t required to grant those requests and usually does so only for trade secrets or financial data, Belendiuk said.

News networks shouldn’t be “caving in” to the FCC’s demands, said DePauw's McCall. Media outlets “are kind of backpedaling, and I'm not sure [if] they should because the free press is an important part of this nation.”

Multiple broadcast attorneys told us that because the FCC can easily block the Skydance deal in several ways, it makes sense for Paramount Global to strive to reach a settlement. “This is a squeeze play,” Belendiuk said. McCall said, “There's a point where they've got to stand up and just say, you know, journalistic independence is more important than our immediate practical problems here,” McCall said.

"This is just the latest in Brendan Carr's use of the FCC to do political favors for Donald Trump," said Ari Cohn, Foundation for Individual Rights and Expression lead counsel-tech policy. "While the government bears most of the blame in this, it is very unsettling to see the media companies effectively rolling over," he said. "The selling out of the First Amendment to help a merger go through might be a good business decision, but it portends very poorly for free speech moving forward."