Addressing the FCC’s recent enforcement actions against broadcast networks, former Democratic FCC Chairman Tom Wheeler said Wednesday that the commission should move quickly on current Chairman Brendan Carr’s proposal for a proceeding on the meaning of the FCC’s public interest standard (see 2412060067) so that boundaries are clear. In an article for the Brookings Institution, Wheeler said using “ill-defined government policy as a tool of political coercion is something that is historically associated with authoritarian governments.” The public interest proceeding would not only help eliminate the vagueness that plagues the chairman’s current interpretation, but it would also identify how he would enforce the rules when applied to broadcasters "that are much more one-sided in their support of [President Donald Trump's] policies,” Wheeler said. The proceeding should include a proposed definition from Carr, followed by an open public debate and an FCC vote, he said. The FCC chair’s power "to interpret the vague public interest doctrine invites its politicization,” he said. “Simply rattling the chairman’s saber can have a chilling effect on editorial and business decisions.”

The full FCC should reverse the Media Bureau’s dismissal of the Media and Democracy Project’s (MAD) petition against Fox’s WTXF Philadelphia, MAD said in an application for review Tuesday. The petition's dismissal under former FCC Chairwoman Jessica Rosenworcel (see 2501160081) was “politically manipulated” and intended to add “a patina of impartiality” to the contemporaneous dismissal of complaints against ABC, NBC and CBS, MAD said. Those complaints, from the Center for American Rights (CAR), weren’t based on court findings and “did not rise to the level” of the WTXF petition, MAD said. “In rescinding the three CAR decisions, while leaving the MAD decision to stand, [FCC Chairman Brendan] Carr doubled down on Rosenworcel’s biased, politically motivated adjudications,” the group said (see 2501220059). “It is not the duty of the FCC chair, whether a Republican or a Democrat, to play politics with legal proceedings,” and both parties' chairs "failed [in] their statutory duty.” The Media Bureau was incorrect not to consider the factual record and court findings from the litigation against Fox by Dominion Voting Systems over Fox’s 2020 election coverage, MAD said. It also disputed that its case against WTXF violates the First Amendment. “The question before the Commission is not whether Fox had a right to dissemble, rather it is about the consequences of those lies and the impact on Fox’s character qualifications to remain a Commission licensee.”

Broadcasters must be able to report the news without government retaliation and need the FCC to scrap ownership limits, said NAB President Curtis LeGeyt during a Media Institute speech Wednesday. “Our democracy relies on journalists’ ability to report the news without the risk of government retribution,” he said. “Efforts to limit the ability of broadcasters to report the facts hinders the public’s right to know and chills free speech.” The FCC should eliminate the national ownership cap, or it risks damaging emergency alerting and local news, LeGeyt added. “Without a necessary course correction in our ability to compete for local advertising, local newsrooms will continue to downsize, robbing the community of its voice," he said. “Eliminating these regulations will allow local stations to aggregate resources, invest in journalism and strengthen their service to communities.”

Broadcasters’ legal challenge of the FCC’s 2018 quadrennial review (QR) order is set for oral argument in the 8th U.S. Circuit Court of Appeals on March 19, said a filing in docket 24-1380 Friday. Petitioners Zimmer Radio, Nexstar, NAB, Beasley Media and Tri-State Communications have argued that the order violated the Communications Act because it didn’t roll back any broadcast ownership rules and ignored the increased competition faced by broadcasters. The FCC has previously argued in the case that the law doesn’t compel it to deregulate and that broadcasters haven’t shown that they face competition in local programming, but that could change under the agency’s new leadership. FCC Chairman Brendan Carr dissented from the QR order as a commissioner, calling its view of competition “ostrich-like.” Earlier this month, the agency kicked off oral argument over workforce diversity data collection by announcing it wouldn’t defend portions of the order (see 2502040061), which Carr also opposed as a commissioner.

“There is an obvious public interest in there being live media coverage of police street activity,” said Cato Institute Senior Fellow Walter Olson in a blog post Tuesday about the FCC’s investigation of a radio station that reported on Immigration and Customs Enforcement raids (see 2502050051). “Allowing the media to be scared away from reporting on police raids” takes the country “closer to a society where the media dare not report in real time on police raids at all, or even to one in which there might happen secret raids.” Media reporting “can expose bad practices by police, and it can also reassure by helping to establish that police practice was proper,” he said. The FCC’s investigation of the station “inevitably invites comparison with other speech-chilling steps taken under the new chairmanship of Brendan Car,” he added, pointing to the FCC’s investigation of CBS over news distortion (see 2502120041). “Vigilance is always in order when it comes to the FCC and speech rights, and perhaps more now than ever.”

The FCC’s authority to regulate broadcast content is based on the scarcity of spectrum, but that authority is unconstitutional because spectrum’s scarcity doesn’t differentiate it from other resources such as land or oil, wrote Joe Kane, director-broadband and spectrum policy at the Information Technology and Innovation Foundation, in an essay the Federalist Society posted Tuesday. FCC Chairman Brendan Carr’s actions (see 2502050063) to investigate broadcasters over their content “are permitted within the current state of the law” because of court rulings that broadcasters enjoy fewer First Amendment protections due to spectrum’s scarcity, Kane said. “Those cases, and therefore the FCC’s authority to regulate the content transmitted over radio waves, are based on fundamental fallacies,” he wrote. “Land is scarce, but the fact that the government has granted or auctioned deeds doesn’t permit it to regulate the content of what landowners say.” The law also doesn’t apply the rationale of spectrum scarcity evenly, Kane pointed out. Wi-Fi signals are just as susceptible to interference as broadcast radio signals, he said. “Yet no one would countenance content-based control of all wireless internet traffic, even though the scarcity rationale would apply identically to those types of transmissions.” Supreme Court Justice Clarence Thomas questioned the validity of the spectrum scarcity rationale in his concurrence in FCC v. Fox, Kane said. “Do his colleagues agree?” he asked. “Spectrum is not so special a medium that it should be carved out of the First Amendment,” he wrote. “To the extent that any FCC action or any part of the Communications Act relies on the inverse assumption, it is unconstitutional.”

CBS’ editing of an interview with former Vice President Kamala Harris last November “looks like editorial judgment, not an instance of splicing footage to create a misleading response that never happened,” and the FCC probe into CBS isn’t justified by the previous administration’s action against Fox, the Wall Street Journal editorial board said in a column Sunday. News Corp. owns the WSJ and Fox. In a recent interview, FCC Chairman Brendan Carr pointed to the previous FCC’s proceeding on WTXF Philadelphia as setting the precedent for the agency’s current news distortion investigation against CBS (see 2502060059).

Minority Television Project has reached a $25,000 settlement with the FCC over filing violations by KMTP-TV San Francisco, its noncommercial educational station, said a consent decree in Friday’s Daily Digest. KMTP filed its issues/programs list late, failed to report that violation to the FCC, and then was also untimely in filing its license renewal application, the consent decree said. Under the terms of the decree, the agency has granted KMTP’s license renewal for two years, during which time the station is required to implement a compliance plan and new training procedures.

The FCC has added additional video to the CBS news distortion docket (25-73), said a public notice Friday (see 2502050063). “Placement of this additional material in the docket will allow for the development of a more comprehensive record and enhance public input.” The additional video appears to be further footage of the 60 Minutes interview with then-Vice President Kamala Harris that CBS released Wednesday. “The inclusion of this additional material in the record does not change the pleading cycle or filing procedures,” the notice said.

The FCC doesn’t have plans to withdraw or revise its Form 395-B data collection despite the agency opting not to defend language in the order recognizing nonbinary gender (see 2502040061), the FCC told the 5th U.S. Circuit Court of Appeals in a letter in docket 24-60219 Wednesday. “There therefore remains a live controversy between the parties over the order’s lawfulness.” The letter appears to be a response to concerns judges raised during oral argument Tuesday that the FCC could act to withdraw or moot the case while the court is working on an opinion. Broadcast attorneys told us this week they were concerned the court might opt not to rule on the order in the wake of the FCC’s decision not to defend part of it.