FCC Chairman Brendan Carr faced another congressional oversight hearing on Wednesday, with Democrats hammering him over his warnings to Jimmy Kimmel and investigations of national broadcasters, and Republicans largely focusing on other issues.
One of the most heated moments came when Carr was questioned by Rep. Darren Soto (D-FL), who accused the FCC chairman of turning “the FCC into Trump’s attack dog to crush First Amendment rights.”
“There was a time when you passionately defended First Amendment rights,” Soto said. “…So how do you justify using the FCC to censor news and satire of Trump’s rampant corruption?”
Broadcasters, Carr responded, “have an obligation to operate in the public interest.”
He was referring to the standard by which broadcasters are required to operate in exchange for a license to use the public airwaves. But it’s a standard that has long come under scrutiny as too vague, giving the FCC wide latitude over everything from merger approvals to license renewals.
As he has been pressed by lawmakers on the House Energy & Commerce subcommittee and before a Senate committee last month, Carr has repeatedly defended his actions, which include investigations of major networks and stations over their news programming, as falling within the FCC’s scope.
Carr said in his written testimony to the House committee, “Congress has instructed the FCC to enforce public interest requirements on broadcasters. The FCC should do exactly that.” He has decried to leverage that networks have over local broadcast affiliates.
But Anna Gomez, the sole Democrat on the FCC, has said that Carr “has asserted an apparent roving mandate to police speech that this administration does not like, invoking an undefined and unchecked concept known as the public interest standard. The public interest standard is being treated as a license to weigh in on content, viewpoint and editorial judgment.”
Later in the hearing, she said “the public interest is not come nebulous standard that can be used to target any content that this administration doesn’t like.” She said that the FCC needs “to go back to simply conducting our role of ensuring that the broadcasters have the infrastructure that they need in order to be able to serve their local communities.”
Carr has not announced any conclusion to any of the investigations, which include, among other things, scrutiny over the way that 60 Minutes edited an interview with Kamala Harris in the 2024 election. Carr also launched an inquiry into a Bay Area radio station over the way that they covered an immigration enforcement action. If the FCC were to sanction a license holder, it then could be challenged in court.
Carr also invoked the public interest standard when he warned ABC over comments that Kimmel made about Charlie Kirk, telling podcaster Benny Johnson that “we can do this the easy way or the hard way.” Hours after Carr’s remarks, ABC pulled the show from the air after two major affiliate groups said that they would pre-empt the late-night program.
Kimmel was reinstated the following week, but in the backlash that followed, even Sen. Ted Cruz (R-TX), compared Carr’s warning to the threat of a mob boss, ala Goodfellas, in a way that could chill speech. Courts have also frowned on so-called “jawboning,” also known as “regulation by raised eyebrow,” when a public official uses their position to try to pressure some kind of private action.
Carr himself has warned of invoking the public interest standard as a way to pressure broadcasters. In 2019, he wrote on Twitter, “Should the government censor speech it doesn’t like? Of course not. The FCC does not have a roving mandate to police speech in the name of the ‘public interest.’” Carr was reacting to an op ed in USA Today from Jessica Rosenworcel, then a Democratic commissioner, who was calling for restrictions on e-cigarette advertisements.
At the hearing on Wednesday and last month, Carr pointed to examples of Democratic lawmakers calling for FCC action against broadcasters over content they do not like.
In questioning Gomez, Rep. Russell Fry (R-SC) cited a letter that House Minority Leader Hakeem Jeffries (D-NY) and then-Senate Majority Leader Chuck Schumer (D-NY) sent to Fox News in 2023 regarding coverage of the 2020 presidential election. The letter, Fry said, was “pressuring private news outlets’ owners to order specific shows and hosts to change their political coverage and issue compelled on air statements solely because they disagreed with that coverage.”
“Do you condemn those attempts by Democrats to censor free speech and journalism?”
Gomez, who was not on the FCC at the time, said, “The First Amendment prohibits government interference in free speech, and so [in] my view, the FCC should not be engaged in any activities that lead to either policing bias or pressuring newsrooms into how to report the news. We should not be regulating content at all.”
Asked by Fry if that meant that she disagreed with the letter from Schumer and Jeffries, Gomez said, “To the extent that any actions to pressure news by the government has led to the abuses that you are seeing under this administration. We should reconsider it.”
The FCC has limited authority over cable and channels like Fox News, unlike broadcasting. Yet even with the public interest standard for broadcasters, the FCC is still restricted by the First Amendment, per the agency’s own website.
“The FCC is barred by law from trying to prevent the broadcast of any point of view,” the agency says. “The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a ‘clear and present danger of serious, substantive evil’ come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC.”
The FCC says that licensees are required by law to operate in the “public interest, convenience and necessity.” “Generally, this means it must air programming that is responsive to the needs and problems of its local community of license,” the FCC says. For years, there have been calls for Congress or the agency to more specifically address what “public interest” means.
Past FCC chairs and commissioners have called into question the vague nature of the “public interest standard,” and even whether it should be modified or scrapped. Reed Hundt, chair under Bill Clinton, said at a forum last summer that it “shouldn’t be a weapon that anybody could use.”
Michael O’Rielly, commissioner during the Obama and first Trump administrations, said at the same forum that the use of the public interest standard to wield influence over companies and transactions has been “a long time coming.” He pointed to the FCC review of Standard General’s proposed merger with station group Tegna, which was abandoned after the FCC chair, Jessica Rosenworcel, appointed by Biden, sent it to an administrative law judge.
Tom Wheeler, who served as FCC chairman in Barack Obama’s second term, told Variety in 2017 that “The public interest is determined by the old adage, ‘Where you stand depends on where you sit.’ And so, what I have tried to do is say, ‘OK, we need another standard.’ And I kept saying to myself, ‘What is it that is in the common good, as differentiated from the public interest?’ Because the common good is how you can serve the good of the most people the best way.”
Carr has been open to the idea of a proceeding to define just what exactly the public interest standard is, but he has not initiated one.
