Brendan Carr Says He Can Police TV Journalism Because Broadcast Licenses Are 'Free'

The FCC chairman's reasoning is faulty.

For nearly a decade, President Donald Trump has been threatening to revoke the broadcast licenses of TV stations that fail to cover him the way he thinks they should. Ajit Pai, who chaired the Federal Communications Commission (FCC) during Trump's first term, was not at all receptive to that idea, saying, "I believe in the First Amendment." But Brendan Carr, the current FCC chairman, has no such constitutional compunctions.

Carr made that clear once again over the weekend, when he warned on X that broadcasters "will lose their licenses" if they fail to "operate in the public interest"—a standard that he seems to think constrains their coverage of the U.S. war with Iran. Carr's threat underlines the anomalous legal status of broadcast journalism, which allows government interference that would be obviously unconstitutional in any other medium.

Notably, Carr's X post was a response to Trump's complaints about a story in The Wall Street Journal, and the FCC has no authority to regulate newspapers. Trump, in turn, responded to Carr's threat with a broad attack on the "Fake News Media," reiterating his longstanding beef with journalists whose work irritates him. Although the Journal was the only outlet that Trump mentioned in that Truth Social post, he said he was "thrilled" that Carr was "looking at the licenses of some of these Corrupt and Highly Unpatriotic 'News' Organizations"—i.e., the ones that are subject to FCC regulation.

Such meddling is justified, Trump said, because TV stations "get Billions of Dollars of FREE American Airwaves." He was echoing Carr's rationale for punishing news outlets that do not serve "the public interest" as Carr defines it: "The American people have subsidized broadcasters to the tune of billions of dollars by providing free access to the nation's airwaves." But that claim is inaccurate because the value of broadcast licenses is reflected in the price that businesses pay when they buy TV or radio stations.

NBC, for example, was originally a radio network established in 1926 by RCA, a partnership of General Electric (G.E.), Westinghouse, AT&T, and the United Fruit Company. RCA became a separate company in 1932 as a result of an antitrust settlement. G.E. regained control of NBC in 1986, when it bought RCA for $8.6 billion (about $25 billion in current dollars). In 2004, Vivendi Universal Entertainment merged with G.E., forming NBCUniversal. Comcast bought 51 percent of NBCUniversal in 2011, when the latter company was valued at $30 billion (about $43 billion today). Comcast bought the rest of NBCUniversal in 2013 for $16.7 billion (about $23 billion today).

At each of these stages, the FCC approved the transfer of the broadcast licenses held by NBC-owned stations, which currently include a dozen TV channels in major cities. The ability to continue operating those stations figured in the price that Comcast was willing to pay, which means it is simply not true that the company gained "free access to the nation's airwaves."

Nor is that an accurate description of what happened last year when Paramount, which owned CBS and its stations, merged with Skydance Media—an $8 billion deal that likewise required FCC approval because it entailed the transfer of broadcast licenses. Carr nevertheless leveraged the FCC's discretion in allowing the merger to transform CBS News, which he portrayed as an attempt to correct the organization's leftward bias in service of "the public interest."

Carr's faulty logic becomes obvious when you consider other examples of transferable government licenses. While the original holders of New York City taxi licenses may have enjoyed a windfall when the medallion system was adopted in 1937, for instance, people who subsequently acquired the right to operate taxis had to pay jaw-dropping prices. By 2014, the market value of a medallion, which in 1962 was about $25,000 (around $270,000 today), had risen to more than $1 million. Would it make any sense to assert that permission to operate a taxi in New York City was "free" at either point?

Even if you focus on the original distribution of broadcast licenses and ignore the cost of subsequently acquiring them, there was no compelling justification for the approach that Congress took when it first asserted control over broadcasting in the 1920s. That power grab was based on "the scarcity of radio frequencies"—the same rationale that the Supreme Court would later invoke to uphold the FCC's authority to regulate broadcast speech. But allocation of broadcasting rights did not require empowering federal bureaucrats to police the content of TV and radio programming.

"The fact that only a finite amount of spectrum use was allowed for traditional broadcasting, without more, did not require intrusive regulation," John W. Berresford, then an attorney with the FCC's Media Bureau, noted in a 2005 research paper. "Merely an allocation system, defining and awarding exclusive rights to use certain frequencies, would have sufficed to 'choose from among the many who apply.' Like any allocation system, this one would need clearly defined rights, a police force, and a dispute resolution system for allegations of interference, unauthorized operations, and other misconduct."

Congress nevertheless seized upon the scarcity rationale to charge the Federal Radio Commission, the FCC's predecessor, with awarding and renewing broadcast licenses based on its assessment of "public interest, convenience, or necessity." The long history of politically motivated interference with broadcasting flowed from that arbitrary assertion of federal authority, as exemplified by Carr's efforts to reshape TV programming so it is more to his liking.

Even if you take the FCC's authority in this area for granted, it is hard to reconcile Carr's blatantly partisan meddling with the rules he claims to be enforcing. Without citing any specific examples, he avers that broadcasters "are running hoaxes and news distortions."

The "hoax" rule applies to "false information concerning a crime or a catastrophe," but only if 1) "the licensee knows this information is false," 2) "it is foreseeable that broadcast of the information will cause substantial public harm," and 3) "broadcast of the information does in fact directly cause substantial public harm." The rule against "broadcast news distortion" likewise applies only when there is "evidence showing that [a] broadcast news report was deliberately intended to mislead viewers or listeners."

Broadcasters "are only subject to enforcement if it can be proven that they have deliberately distorted a factual news report," which "must involve a significant event and not merely a minor or incidental aspect of the news report," the FCC says. The commission "makes a crucial distinction between deliberate distortion and mere inaccuracy or difference of opinion," which "are not actionable."

Again, the only example to which Carr even alluded was a newspaper article, which is completely beyond the FCC's authority. Trump was angry about a March 13 Wall Street Journal report, based on information from "two U.S. officials," that "five U.S. Air Force refueling planes were struck and damaged on the ground at Prince Sultan air base in Saudi Arabia."

Trump was especially upset about the headline, which he described as "intentionally misleading" because "the planes were not 'struck' or 'destroyed.'" Rather, he said, "four of the five had virtually no damage" and are "already back in service," while the fifth "had slightly more damage" but "will be in the air shortly." Yet as Reason's Matthew Petti notes, the Journal's headline, which it retained when it updated the story on Saturday to reflect Trump's criticism, was perfectly consistent with Trump's account. "Five Air Force Refueling Planes Hit in Iranian Strike on Saudi Arabia," it said.

Leaving aside the legally significant point that Trump was complaining about a newspaper article rather than a broadcast news report, there was nothing inaccurate or misleading about that headline, let alone "intentionally" so. It was not, by any stretch of the imagination, a "hoax" or a "deliberately distorted" news report. Trump nevertheless claimed the Journal's "terrible reporting" was "the exact opposite of the actual facts!" He later upped the ante, saying the report was not only "knowingly FAKE" but egregious enough to justify "Charges [of] TREASON for the dissemination of false information!"

Carr lent credence to Trump's assessment by responding to his criticism of the Journal with a warning about "hoaxes and news distortions," even though both labels are plainly inapt in this context. Carr, in any case, made it clear that his concerns go far beyond purported violations of any specific FCC rule. "The law is clear," he wrote. "Broadcasters must operate in the public interest, and they will lose their licenses if they do not."

Although it is not clear exactly what Carr means by "the public interest," it seems to preclude journalism that annoys the president. "It is very important to bring trust back into media, which has earned itself the label of fake news," he said. "When a political candidate is able to win a landslide election victory…in the face of hoaxes and distortions, there is something very wrong. It means the public has lost faith and confidence in the media. And we can't allow that to happen."

Note that Carr megalomaniacally aspires to restore "faith and confidence in the media," even though he is relying on legal authority that is specific to just one of those media. And his judgment of journalism in that particular medium is based on reasoning that echoes Trump's narcissism.

Last November, Trump said Carr should consider revoking broadcast licenses because "when you're 97 percent negative to Trump, and then Trump wins the election in a landslide, that means obviously your news is not credible." By the same logic, that coverage would have been credible if Trump had lost the election.

Although this is probably not the best way to assess the quality of TV network journalism, the important point is that Trump thinks broadcast licenses should be contingent on his own judgment of whether that journalism is fair and balanced. Unlike Pai, Carr seems to agree.