Simington: FCC Isn't 'Ministry of Truth'
The FCC shouldn't act as a “Ministry of Truth,” and there isn't a constitutional basis for the agency to go after local broadcasters, said Commissioner Nathan Simington during an interview Tuesday that seemed aimed at soothing broadcasters' concerns about the FCC's new direction. “I’m not in the business of deciding who’s telling the truth and who’s not,” Simington said onstage at the NAB State Leadership Conference. “And what’s more, [FCC Chairman Brendan] Carr thinks the same way." Carr said last week that FCC precedent set by the previous administration supports proceedings he has opened against broadcast networks over their programming and news content.
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Simington said Tuesday that agency precedent doesn’t support using editorial discretion as the basis for news distortion complaints and that the agency’s monetary enforcement processes are “dead letters.”
Meanwhile, Senate Commerce Committee Chairman Ted Cruz, R-Texas, ranking member Maria Cantwell, D-Wash., and other lawmakers said at the NAB event they are optimistic Congress will pass the AM Radio for Every Vehicle Act (HR-979/S-315) to require the Department of Transportation to mandate AM radio's inclusion in future automobiles. Senate Commerce voted last month to advance S-315, which would mostly affect electric vehicles (see 2502100072). Cruz predicted that “this year,” Congress will send HR-979/S-315 to President Donald “Trump’s desk, and he will sign it.”
The FCC’s news distortion rules apply only when a station “misleadingly reports [a] newsworthy event” under existing FCC precedent, Simington said. “Anything else is protected free speech,” adding that the distinction is “a little subtle.” An FCC proceeding on “reinvigorating” broadcasters’ public interest obligations repeatedly teased by Carr would concern “unpicking a little bit the relationship between broadcasters and content companies” and not “trying to make local news speak with a single point of view,” Simington said. “As far as going after local broadcast, I don’t think anyone should worry about that. I don’t think there’s a constitutional basis for doing that. I’m sure Chairman Carr feels exactly the same way." The FCC didn't comment.
'No Fining Power'
The FCC “currently has no fining power” due to the U.S. Supreme Court’s SEC v. Jarkesy decision in June, Simington said. “That is actually the consensus in the admin law bar in D.C., and maybe the FCC doesn’t want to admit it yet,” he said. “It is very difficult to run an agency if you admit you’ve had your claws clipped to that degree.”
It would likely take congressional action to restore the FCC’s authority to impose fines on entities, Simington said. “Right now we're confronting broadcasters with this ugly situation where it's not clear what authority you really have to levy fines, and yet the fact that we preside over your licenses also has an intimidation effect.” The FCC will have trouble persuading DOJ to collect forfeitures if they are unconstitutional, said Simington, who has dissented from all monetary forfeitures since the SCOTUS decision.
In a later interview Tuesday, Simington told us he doubted his dissent policy would wind up blocking enforcement actions at the 2-2 FCC because most have bipartisan support, and the Senate is likely to confirm commissioner nominee Olivia Trusty within the next few months (see 2502260074).
Simington reiterated his strong support for broadcaster goals of reopening a proceeding on virtual multichannel video programming distributors (MVPDs), rolling back ownership restrictions, and implementing a concrete transition timeline to ATSC 3.0. Slowing the transition to preserve “the diminishing number of people who can’t buy a modern [TV] set” ignores the consequences for consumers if stations shutter because they are unable to modernize and compete, he said. Every equipment manufacturer should include 3.0 chipsets in their products “as a matter of course,” he added. On ownership deregulation, Simington said he has had “a reform proposal written since three weeks prior to inauguration,” but the new administration likely needed more time to find its footing and address some national security concerns.
Lawmakers
The NAB-backed HR-979/S-315 “will pass with more than 90 votes on the floor of the Senate,” Cruz told broadcasters Tuesday. “We will send it to the House, and I’m gonna need your help in the House to get the House to take it up and pass it.”
Cantwell said she and other AM radio supporters “are not going to stop until we get that legislation.” She also promised support for legislation that would preserve the tax deductability of advertising and protect broadcaster content from AI. In addition, she urged the FCC to reopen its proceeding on virtual MVPDs.
When advocating for rule changes that make them more competitive with Big Tech, broadcasters should tie their competition issues to tech censorship, said Cruz during his address. Broadcasters should emphasize that keeping their business economically viable is about maintaining “a public square” and contrasting their local journalism with the “invisible” censorship of social media platforms.
House Communications Subcommittee Chairman Richard Hudson, R-N.C., will be sending a letter to the FCC urging it to revise ownership rules, House Commerce Committee Chairman Brett Guthrie, R-Ky., said Tuesday. The FCC’s ownership rules are “an outdated relic of the 20th century," Guthrie said. “If they’re not gonna act, Congress will.”