After Donald Trump’s Attacks On Media, A Reminder Of What The FCC Can – And Cannot – Do Before An Election

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Donald Trump‘s call last week for CBS to lose its license for the way that it edited a Kamala Harris interview — he says it was “election interference” — drew a rebuke from the chair of the FCC, the agency that oversees broadcasting.

“The FCC does not and will not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage,” said chairwoman Jessica Rosenworcel.

This wasn’t Trump’s first time calling for a broadcaster to lose its license, and it’s also not the first time that he’s misconstrued just what the FCC can and cannot do, particularly as an election approaches. Trump’s repeated attacks on CBS are part of a continuous longtime effort to undermine mainstream media, but he also is not alone in thinking that the FCC has an authority it really does not.

Licensing. Networks are not licensed, but their broadcast stations are. And when it comes to news content, the FCC has made clear that its enforcement in that is very “narrow in scope” due to the First Amendment.

That said, the FCC is controlled by whichever party holds the White House. If Trump were return to power, he would be given a 3-2 Republican majority. Even if a GOP-led FCC were to take action against broadcasters, any such action would be challenged in the courts, which have applied strict scrutiny to content-based laws.

One of the first times that Trump threatened a broadcast license was in 2017, when he railed against NBC over its news reporting. That invited coverage of how this threat resembled that of Richard Nixon, who, on the White House tapes, talked about creating license-renewal problems for stations owned by The Washington Post, which then was out front in its reporting on the Watergate scandal. Although the Post kept its licenses, the Nixon era attacks on the media raised concerns that the mere threat to a broadcaster’s license would create a chilling effect on news coverage.

Licenses rarely are revoked, but they have been challenged when an eight-year term expires.

Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband and Society, recalled that there has been no license case involving programming since the 1970s — and it was over content that a broadcaster failed to carry. Moreover, the Telecommunications Act of 1996 limited the criteria for denying a license. “It was essentially impossible before then,” he said. “It is totally impossible now.”

In 2017, Ajit Pai, who was appointed FCC chair by Trump, pushed back on the idea that it could revoke NBC licenses. “Under the law, the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast,” he said.

This isn’t to say that news programming is immune from any FCC enforcement. One area is broadcast news “distortion.” Stations “are only subject to enforcement if it can be proven that they have deliberately distorted a factual news report. Expressions of opinion or errors stemming from mistakes are not actionable,” according to the agency. The FCC “will only investigate claims that include evidence showing that the broadcast news report was deliberately intended to mislead viewers or listeners.”

That traditionally has been a high bar, and the FCC has taken recent action only on egregious examples. In 2017, the FCC imposed a $13.4 million fine on Sinclair Broadcast Groups for running stories on a cancer foundation but failing to disclose that the foundation was paying for them to air. The sanction was a fine, and the segments ran more than 1,700 times. Moreover, the FCC found a violation not over the content that was shown but that there was no disclosure over the sponsorship.

More recently, public interest group Media and Democracy Project and Preston Padden, former top lobbyist for News Corp., have petitioned the FCC for a public hearing on the renewal of the license for Fox Corp.’s Philadelphia station. But their petition is focused on the character of Rupert and Lachlan Murdoch. They argue that the Dominion Voting Systems litigation showed a “deliberate manipulation of news to boost ratings,” and that the behavior of the Murdochs and Fox executives was egregious enough to disqualify them from station ownership. In addition to arguing that denying the license would violate the First Amendment, Fox has contended that the petition is based on a “fundamental mischaracterization” of how the FCC applies its character policy. The FCC has yet to make a decision.

Equal time. Broadly speaking, this rule is meant to ensure that candidates receive equal access to the airwaves. A station is obligated to provide comparable time and placement to a candidate’s rivals, albeit it does not mean the outlet has to invite them on identical programming.

There are two big exceptions: The candidates have to be “legally qualified,” as in that have to be eligible for the ballot. There also is a rather large exemption for “bona fide” news programming, interviews, documentaries and news events. That applies to everything from the local evening newscast to debates to late-night talk shows. The rules also do not apply to cable channels or web-based video, streaming podcasts or social media. And it’s up to the candidates to request equal time; not all of them do.

But there have been recent situations where a broadcaster was on the hook. This happened in 2015, after Trump hosted Saturday Night Live. NBC was faced with equal-time requests from some of his Republican primary rivals, and they were given it on 18 affiliates in early primary states. More recently, the show’s longtime executive producer Lorne Michaels suggested to The Hollywood Reporter that he wasn’t inviting Trump or Kamala Harris to do a cameo on the show this season because it might force the network to give time to minor-party presidential candidates.

The equal time rule is not to be confused with…

Fairness Doctrine. This rule required that broadcasters covered issues in a way that reflected differing viewpoints. This is still standard practice in many sectors of journalism, but as an actual regulation it is moot. The FCC did away with the Fairness Doctrine in 1987, even though there’s often a misconception that it is still on the books.

The abolishment of the doctrine helped usher in politically charged talk radio, with Rush Limbaugh emerging as the biggest star. Stations no longer were obligated to present “the other side” and instead found ratings gold in telling listeners what they wanted to hear.

Through the years, there has been plenty of calls to restore the Fairness Doctrine, including a 2019 bill by then-Rep. Tulsi Gabbard (D-HI) to reinstate it. It went nowhere. Trump also has had moments where he seemingly has called for a Fairness Doctrine, as he lamented Saturday Night Live sketches parodying him.

Campaign ads. Stations are required to charge candidates only the “lowest unit rate” for the 60 days before an election and 45 days before a primary. Outside of those windows, they can charge rates that are comparable to commercial sponsors. This rule does not apply to issue ads, which is why interest groups and Super PACs can pay much more than a candidate’s campaign.

The broadcast stations also are prohibited from rejecting or censoring ads from legally qualified candidates. This came up last week, when an anti-abortion spot aired during The View that compared Whoopi Goldberg and other celebrities to Joseph Goebbels. The spot came from activist Randall Terry, a minor-party candidate, and ABC made clear that it was required to air the ad.

Viewers also may wonder about the phrase they will hear many, many times before election day” “I am Kamala Harris, and I approved this message,” or “I am Donald Trump, and I approved this message.” Those are legally required disclaimers on campaign ads, and they require a full screen of the candidate making the statement and their voice-over. The rules, though, are part of the Bipartisan Campaign Reform Act and generally enforced by the Federal Election Commission.

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