Chairman Carr’s Legal Theory of Content Regulation Is More Developed, but Still Wrong

After President Trump expressed disagreement with media reports regarding damage to planes in Saudi Arabia, Federal Communications Commission Chairman Brendan Carr followed up with renewed promises to take regulatory actions against broadcasters based on the content they air. Such messages are variations on a theme for Chairman Carr, but this iteration came with a more developed legal theory in that Chairman Carr tied his warning to license renewal, which generally happens every eight years, rather than outright revocation. Chairman Carr is on stronger statutory ground tying potential public interest evaluations to license renewals. Contrary to popular belief, the Communications Act nowhere imposes on broadcasters an ongoing obligation to operate in the public interest. Statutory provisions often cited for that proposition have the FCC, not the broadcasters, as their object. But the renewal statute, Section 309(k) of the Communications Act of 1934, does include “the station has served the public interest” as one finding that leads to a requirement for the FCC to renew the license.