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.

FCC rules against payola bar radio broadcasters from receiving payment for more favorable airplay, even in the form of reduced fees for live performances at station-run concerts, warned the FCC Enforcement Bureau in an advisory Thursday. “Some radio stations appear to be violating the FCC's prohibition on Payola by surreptitiously forcing musicians to choose between (1) performing for free (or for reduced fees) at station events or (2) losing out on valuable radio airplay,” said FCC Chairman Brendan Carr in a post on X. Sen. Marsha Blackburn, R-Tenn., sent a letter to Carr last week asking the FCC to look into the practice (see 2502040062). The advisory said the agency will hold stations that report to record-charting services -- and are thus more susceptible to payola -- to a higher standard on policing the activities of employees than it would a station with an all-news format. If the licensee of such a reporting station “does nothing more than require its employees to execute affidavits stating that they will not violate laws and regulations prohibiting payola,” that could fall short of the “reasonable diligence” the agency requires, the advisory said. Payola is also against the U.S. criminal code, so violating the rules “can subject the violator to criminal penalties of a fine of up to $10,000 or imprisonment of up to one year, or both.” The FCC “notes that licensees play a critical role in preventing payola, and the Commission’s enforcement staff will consider investigating substantive allegations of payola that come to its attention.”

The FCC’s investigation of CBS and demand for interview transcripts (see 2502050063) aren’t unprecedented because of the previous administration’s treatment of Fox’s WTXF Philadelphia, FCC Chairman Brendan Carr said Thursday in an interview with Fox and Friends. “When the government's been weaponized in your favor, it feels like discrimination when all of a sudden there's even-handed treatment,” Carr said, calling critics of the CBS investigation “the radical left.” Under former Chairwoman Jessica Rosenworcel, the FCC opened a proceeding on WTXF’s license renewal in response to a petition from the Media and Democracy Project. MAD’s petition argued that a court finding that Fox had aired false news about the 2020 election was sufficient basis for the FCC to hold a hearing on its license. The open proceeding held up WTXF’s license renewal for a year and a half, but the FCC didn’t hold a hearing, act against WTXF or act on repeated requests from MAD to include documents and court filings from defamation cases against Fox in the record. Rosenworcel rejected the MAD petition as one of her last acts as chairwoman (see 2501160081). Though Carr’s FCC resurrected the news distortion complaint against CBS and other complaints against ABC and NBC, he let the dismissal of the petition against WTXF stand (see 2501220059). “A lot of people that have been on a sort of upper road of a two-tiered system of government, and what I'm here to do is apply the law evenly,” Carr said. Former Fox and Disney lobbyist Preston Padden, who supported the MAD petition, clapped back. “Carr’s comment is pure BS,” he told us. “I believe he is pursuing the CBS complaint for one reason -- Trump wants him to.” Fox didn't comment.

The FCC’s investigation into PBS and NPR stations “could expand” beyond the “narrow issue” of underwriting, FCC Chairman Brendan Carr said in a Fox News interview Monday. The FCC sent letters to the two networks last week announcing an investigation into whether their member stations were running commercial ads (see 2501300065). “Where the investigation goes from there, we'll just be led by the facts,” Carr said Monday. “Every broadcaster has a public interest obligation, and for years, I think the FCC has been completely absent on enforcing the public interest obligation."

An ice scour -- floating ice gouging the seabed -- was likely the culprit for this month's fiber-optic cable line break impacting Quintillion service to North Slope and northwestern Alaskan communities (see 2501220001), President Mac McHale said in a statement Monday. He said Quintillion continues examining the area "and is working with commercial and government entities to possibly deploy remote operating vehicles with high-resolution cameras for additional forensic information." Quintillion "has aggressively moved forward with local partners to restore critical services in the near-term." The process will take weeks, though the company aims to restore some level of service by linking fiber between Nome and Utqiagvik with a network at the satellite ground stations in Nome for additional transport capacity. That hybrid solution will provide backup services until the fiber in the Beaufort Sea is fully repaired, McHale said. The company hopes that Federal Emergency Management Agency funds will be made available in coming weeks to help cover winter construction of a terrestrial route from Utqiagvik to Deadhorse, bypassing the subsea fault area, he said. That work, "with proper support and acceleration by federal agencies," could be done by spring.

Sinclair expects that local media segment revenue will be “down modestly” from its original projection of $936 million to $945 million, it said in a release Monday, preliminarily disclosing its Q4 earnings a month ahead of its Feb. 26 earnings call. The company said it now expects local media segment revenues to fall between $931 million and $933 million.” The decreased projected revenue will cross multiple categories, including political advertising and core advertising, the release said.