Can You Help Out The President By Challenging NBC’s License?

Andrew Jay Schwartzman

On October 17, President Donald Trump launched a vague, yet ominous Twitter-driven attack on NBC, rhetorically asking, “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License?  Bad for country!”

The short answer to the President’s question is “never.”  A slightly longer answer is that there is no license to challenge and, even if there were, no broadcaster should worry that its license would ever be in jeopardy because of disagreement with its programming.

Trump’s ignorance about the relevant legal standards confused many commentators and journalist, and resulted in a good bit of ill-informed reportage.  But the fact that the tweet made very little sense as a legal matter probably added fuel to the inevitable media firestorm that followed.  Moreover, the debate was prolonged by Federal Communications Commission Chairman Ajit Pai’s persistent refusal to make a public statement that what the President called for is unlawful and unconstitutional.  Chairman Pai -- whose savvy handling of media relations has helped him build an image as a genial defender of his deregulatory, hands-off policies with respect to the industries he is supposed to regulate -- remained inexplicably silent for almost a week before issuing an insipid statement that deflected, rather than addressed, the controversy.

In most instances, it is probably not worthwhile to unpack and analyze one of the President’s impulsive tweets.  However, in this instance, the specter of the President appearing to threaten governmental legal action against a media outlet makes the outburst more important than most of his fulminations, and makes it even more important to clarify the applicable legal standards.

At the outset, the President’s imprecision created uncertainty as to his actual target.  Most people interpreted his reference to “their license” as a call for a legal “challenge” to NBC.  Although he referred to “NBC and the Networks,” his use of the word “License” in the singular led most people to interpret his call as being for a legal challenge to the NBC network and not to other networks’ licenses. 

A second source of confusion is the President’s use of the word “challenge.”   The only time that anyone can challenge a license is when it comes up for renewal.  In theory, the FCC - but not a competitor or an outside group - can initiate a revocation proceeding at any time, but the legal standard for taking away a license mid-term is impossibly high, and litigating a contested revocation would take years.  Just about the only time that the FCC revokes a broadcast license is when a bankrupt licensee stops broadcasting and the revocation will not be challenged in court.  In such cases, revoking the license makes the frequency available someone else seeking a broadcast license.

So understood, what the President was suggesting makes no legal sense.  Neither NBC nor any other company needs a license to operate a “network.”  NBC does own 28 television stations, each of which is licensed by the FCC.  Here, too, Trump’s use of the word “License” in the singular is inconsistent with the notion that Trump was suggesting that there be a challenge to those licenses. 

In any event, assuming that the President actually intended to suggest that there be challenges to NBC’s television station licenses, his threat is toothless.  Absent extrinsic evidence that an event was literally staged, declaring that a news story is “fake” is entirely subjective.  Just because one does not like the “news” doesn’t make it “fake.”  Denial of license renewal based on disagreement with the content of a broadcaster’s programming would violate the First Amendment.  It would be similarly unconstitutional to penalize a broadcaster because a particular story promoted one viewpoint or another, or if that story was not internally “balanced” to the satisfaction of the government.  This principle is underscored by Section 326 of the Communications Act, which provides that

Nothing in [the Communications Act] shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

(Note: There was no such thing as a television station when this language was first adopted in 1927.  For these purposes a television station is simply another kind of “radio station.”)

Even if there were ever a valid legal theory to support opposition to a renewal application based on objection to content, pursuit of such a challenge would be fruitless.  At the behest of the broadcast industry, Congress added provisions to the Telecommunications Act of 1996 that make it impossible to prosecute an effective challenge.

First, license terms, originally three and, later, five years, now run for eight years.  TV licenses are divided by states into 18 groups which expire, one group every two months, over the course of a 36-month cycle.  The next licenses to be renewed don’t expire until October 1, 2020, just a month before President Trump will or will not be reelected.

Second, the 1996 amendments changed the standard for renewal, so that a challenger must demonstrate that

there have been no serious violations by the licensee of [the Communications Act] or the rules and regulations of the Commission

            or that

there have been no other violations by the licensee of this chapter or the rules and regulations of the Commission which, taken together, would constitute a pattern of abuse.

There is no case law to explicate what “serious violations” means, but the legislative history of this provision makes it clear that this would have to be something extremely grave, such as failing to provide any programming to meet the needs of children or broadcasting on an unauthorized frequency in a manner which endangers operations of police or other first responders.  Absent such a showing, an opponent would have to demonstrate a “pattern of abuse,’ which is very hard to show.

Even if it were possible to make a showing that might meet the test of the Communications Act, the broadcaster is entitled to defend itself at a hearing before an administrative judge.  Such proceedings take many months or longer, during which time each side can submit document requests and conduct depositions and perhaps present live witness testimony.  In short, this process would cost tens or even hundreds of thousands of dollars.

Finally, if a petitioner successfully petitions to obtain a hearing, wins an order from the judge directing denial of renewal, and prevails in an appeal to the full Commission, the broadcaster can then take the case to the U.S. Court of Appeals.  All during this time, which would last several years, the broadcaster would be able to continue to operate.  In most cases, its legal fees, even if substantial, would be covered by the profits the broadcaster would generate in the interim.

Brian Roberts, who controls Comcast, may consider the President’s dissatisfaction with NBC to be a political problem, but he isn’t going to lose sleep over the fear that anyone will challenge his licenses, much less that they could succeed.

Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation (IPR). Since February 2014, Schwartzman has been writing a monthly column for the Benton Foundation’s Digital Beat blog on telecommunications and media policy issues. Drawing on his decades of experience in the field, Schwartzman provides analysis of the legal issues in the key communications debates of the day, highlighting how law and policymaking interact. Find all of Schwartzman's articles here.

By Andrew Jay Schwartzman.