FCC Regulation By Lifted Eyebrows on Steroids

FCC Chairman Brendan Carr has made it his mission to punish licensees who broadcast content that criticizes President Trump and any aspect of his agenda.  Both Carr and the President have exercised their personal First Amendment rights to excoriate all national broadcast networks, except FOX, for offenses including failing to carry all news conferences, and using comedy to mock the President and First Lady.

ABC, in particular, has incurred the President’s wrath, and Chairman Carr’s displeasure. The FCC has notified ABS that all of its broadcast licenses will be up for renewal evaluation years before the conclusion of their existing term.  On 4 occasions, the Commission has demanded ABC provide evidence that it has not used Diversity, Equity, and Inclusion policies to disadvantage existing or prospective white employees.  ABC has provided over 13,000 pages of materials demonstrating that it has served the public interest, yet Chairman Carr has implied that the network can expect the death sentence.

ABC previously capitulated to Executive Branch pressure.  For example, the network contributed $15 million for a future Trump library and museum, plus $1 million for legal fees incurred by the President in a claim that George Stephanopoulos defamed him by alleging that he had been found liable for rape, rather than the civil jury finding of sexual abuse.

It appears that ABC has concluded that it no longer can mollify the President and Chairman Carr. The company filed a Complaint For Declaratory And Injunctive Relief in the D.C. District Court seeking judicial termination of the FCC’s accelerated license renewal reviews of ABC’s broadcast licenses.  See https://deadline.com/wp-content/uploads/2026/08/ABC-Complaint-0826-1_Redacted.pdf.

One can dismiss, as predictable bombast, President Trump’s strident suggestion that ABC and the “Fake News Media” should lose their FCC licenses.  The President enjoys making over the top suggestions, but the real harm in this case lies with Chairman Carr’s multifaceted strategy to achieve the President’s goals.

Chairman Carr has engaged in much more than expressing an opinion and using “lifted eye brows” to achieve a desired outcome. He has engaged in censorship and unconstitutional behavior by weaponizing the FCC to use its considerable regulatory power to punish lawful conduct.  Regardless whether the FCC eventually designates ABC’s licenses for premature renewal review, Chairman Carr already has achieved most of what the President wants: a cowed media that agonizes over any possible action that might tick him off.

Chilling free speech and triggering extraordinary regulatory compliance costs should generate extreme opposition regardless of political affiliation. Unless the Right Wing expects to maintain control of government in perpetuity, there may come a time when a Left Wing president might used the same tactics as President Trump, this time unlawfully sanctioning FOX.

The First Amendment ensures that government, of any political party, cannot censor, punish, and burden content and viewpoints that are not defamatory, threatening, or obscene.

Strategic Capitulation to Speech Threats at Great Public Expense

Never in my 45-year career in telecommunications law and policy, have I witnessed a cascade of public and private tactics and stunts that collectively chill lawful speech and the robust rights of free speech and expression for both public officials and private citizens. Major broadcast networks have agreed to pay millions for the termination of litigation, and impeding, but unspecified, government “investigations.” 

These payments might amount to a small insurance premium guaranteeing necessary government approvals of a multi-billion dollar acquisition, or termination of black sheep status.  However, they severely dilute the value of our First Amendment right of free expression and what a civil society must tolerate. Bear in mind that hateful words and deeds qualify for First Amendment protection, even if many of us would consider such them deplorable and extremely inappropriate.  

I see nothing in what Jimmy Kimmel and other popular commentators have uttered coming close to unlawful “true threat” speech likely to trigger, near term violence. Our government, including the Federal Communications Commission, has no lawful authority to thwart, sanction, censor, chill, and threaten costly investigations of speech that many of us might find hateful, inappropriate, and in poor taste. 

An employer can lawfully terminate someone who makes such expressions in the context of her employment, but who among us wants a government able to intervene in employment and substantive content preparation by private parties? How would the right wing handle more than “regulation by lifted eyebrow” by a Democratic FCC Chairman?  

How close to an official governmental shake down would it take to cry foul? President Obama’s keen interest in network neutrality regulation and President Biden’s concern about Big Tech self-censorship do not come close. 

Now we have private and public censorship masquerading as a demand for fairness and viewpoint diversity.  ABC has to assuage a disgruntled network affiliate demanding financial contributions and other reparations for perceived unacceptable, but clearly legal speech of an “at will” employee.  

What do you make of the millions demanded and paid in cash and billable hours to draw down threats and withholding already congressionally allocated research funds? When does a strategic lawsuit dampen public participation in governance and enrich public and private players?

I understand how uncivil society has become. There are many culprits and not a clear path to civility, humility, and agreeing to disagree.  But demanding financial reparations, firing employees expressing personal viewpoints, and shaming to the point of cancelling discourse is not the way forward.

Just last year, a unanimous Supreme Court endorsed a decision written by Justice Sotomayor, in NRA v. Vullo; https://www.supremecourt.gov/opinions/23pdf/22-842_6kg7.pdf.

The Court unanimously rejected threats of regulatory sanctions and investigations by a New York state governmental official against lawful Second Amendment advocacy by the National Rifle Association. Sadly, I do not have confidence that when the shoe is on the other foot, currently at the FCC and elsewhere, the Court unanimously would apply its newly minted precedent that builds on decades of universally supported First Amendment jurisprudence.

Sad.

Side-by-Side Truth and Mistruth in the Wall Street Journal

             Even as the Wall Street Journal continues to provide important news reporting, its opinion pieces grow ever snarkier and more deceitful.  In the April 23, 2021 edition, readers will see varying degrees in the representation of the truth contained in two opinion pieces, each referring the American Civil Liberties Union.

             In an opinion authored by the Editorial Board,  the Journal notes that the ACLU, true to its longstanding mission, has joined conservative groups in opposing legislation in California requiring organizations qualifying as charities to disclose the identity of their contributors.  (See https://www.wsj.com/articles/donor-disclosure-arrives-at-the-supreme-court-11619217816).

           In this opinion, one could infer that the Journal authors see the ACLU as fair minded, still willing to take controversial and perhaps counterintuitive sides in litigation.

             In another opinion piece in the same online edition, (see https://www.wsj.com/articles/how-to-have-more-police-shootings-11619213893?mod=trending_now_opn_1), Holman W. Jenkins, Jr. appears to suggest that any arrested person risks death by resisting, even after police have subdued the arrestee.  Did Mr. Jenkins imply that any degree form of resisting arrest entitle police to punish the arrestee, seemingly with no constraint? 

             Mr. Jenkins also even parts company with his usually like-minded editorial writers at the Journal, at least insofar as his perception of the ACLU.  Unlike the Editorial Board opinion noting the ACLU remains an advocate, even for conservative-championed privacy and First Amendment freedom, Mr. Jenkins characterizes the current ACLU as “lately morphed into a pro-censorship promoter of progressive causes.”

             Has Mr. Jenkins concluded that he should continue to target and vilify the ACLU even when it shares his views?

Freedom of Speech Hypocrites

Conservatives’ whining about a liberal bias in social media strikes me as hypocritical.  When Fox et al receive criticism about a conservative bias, defenders rally around the First Amendment and libertarianism.  Fox can be as biased and censorious as it wants to be.  Fox can serve as a conduit for Russian disinformation so long as the company does not act maliciously, or grossly negligent.  Fox can target, vilify and disparage.  The New York Post can come up with a questionable “October Surprise,” clearly intending to help re-elect President Trump.

These very same First Amendment advocates expect social networks like Facebook and Twitter to serve as neutral conduits, without any “right” to censor, curate or manage uploaded content from subscribers.  Really?  Conservatives loath efforts by a Democrat-led Federal Communications Commission to impose “network neutrality” obligations on Internet Service Providers.  The Republican majority at the FCC championed deregulation as “Restoring Internet Freedom.”

Now, conservatives want to impose a fairness mandate on social networks who apparently have no First Amendment rights in curating, filtering and algorithmic monitoring.  Settled “SUPER PRECEDENT” recognizes a First Amendment right to curate, filter and monitor content.  Librarians do that,  so do web-based news aggregators and surely Fox, the New York Post and yes, the New York Times as well, do that when they deviate from a commitment to  best practices in journalism.  Additionally, a nonpartisan majority provided web carriers and content distributors significant immunity from liability when providing a conduit for harmful content.  This “safe harbor” helped incubate the Internet, particularly when it was technologically infeasible to monitor the torrent of traffic.

In prior blog entries, I have noted that algorithms make mistakes, including the refusal to issue me a credit card in light of my “insufficient credit experience.”  I will readily acknowledge that the algorithms and staff assessments of social networks may overshoot, or undershoot the mark in curation.

I will never accept the view—conservative or liberal—that ISPs, social networks and telecommunications networks have to assess the political consequences of allowing, or blocking specific content.  Do we really want a regulator or judge to second guess decisions made to allow or block content without allowing the conduit operator to assess the veracity and compliance with the terms of service?  

Have conservatives lost respect for the “sanctity of contract”?  Do they really think the Constitution supports revocation of social networks’ management of the content they disseminate?

Chilling.

New Publication--Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits

The University of Pennsylvania's  Journal of Constitutional Law (Vol. 12 No. 5 ) has published my analysis of the diverging roles of Internet Service Providers as neutral conduit and content aggregator.  Here's the abstract:

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner.   Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination.  The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.

While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers.  Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others.  Yet the FCC has summarily dismissed any concerns that the Commission’s regulatory regime inhibits First Amendment protected expression.

For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights.  Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content.  While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content.   In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly “walled garden,” and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets.

Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers.  No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity.  Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification.  The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight.  For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas.

This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content.  The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content.  The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content.  The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.      

Content Deregulation and the Second Circuit Court Opinion on Fleeting Expletives

Acting on a remand from the Supreme Court, which had upheld on procedural grounds the FCC’s increasingly stringent rules limiting broadcast indecency, [1] the Second Circuit Court of Appeals considered First Amendment arguments and concluded that the FCC’s new rules are unconstitutionally vague. [2] Unlike the Supreme Court, which had deferred to the FCC’s decision to tighten its rules, including sanctioning broadcast stations for failing to bleep out spontaneously uttered, “fleeting” expletives, the Second Circuit held that the FCC created a chilling effect [3] that goes far beyond whether broadcasters can let slip the occasional profane word.


The Second Circuit held that the FCC owes broadcasters the same degree of clarity about the Commission’s rules regardless of whether content regulations trigger a lower level of scrutiny by courts [4] as the Supreme Court had deemed appropriate in F.C.C. v Pacifica Foundation, 438 U.S. 726 (1978), where the Court approved an FCC fine for the 2 p.m broadcast of a George

Carlin monologue containing several expletives based on the uniquely pervasiveness of broadcasting and its accessibility by children.

The Second Circuit documented how the FCC shifted its enforcement without clear guidance and with inconsistent application. With an emphasis on context, the FCC found no violation when profane words were used in the film Saving Private Ryan yet the very same words were considered actionable when uttered in a documentary about the Blues music genre. Such inconsistency “raises grave concerns under the First Amendment” [5]  because “nothing would prevent the FCC from applying its indecency policy in a discriminatory manner in the future.” [6]

With such a clear endorsement of media First Amendment freedom, some observers have speculated or hoped that the judiciary, including the Supreme Court, will be inclined to reject more limitations on expression and medium-based analysis of the First Amendment. [7] While acknowledging that it must apply Supreme Court precedent, the Second Circuit strongly implied that “today’s realities” [8] do not support a dichotomy in the degree of permissible government regulation and nature of judicial scrutiny between broadcasting and other media such as the Internet and cable television. [9] Asserting that broadcast television no longer has a uniquely pervasive presence, the court emphasized the substantial changes in the media landscape since the Supreme Court decided the Pacifica case:

The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast-almost 87 percent of households subscribe to a cable or satellite service-and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. . . . The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs.. . . As the FCC itself acknowledges, “[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago.” [10]

The Second Circuit argues that broadcasters should qualify for the same insulation from government content regulation as other media in light of enhanced consumer choice and the ability of parents to program their televisions, using the V-Chip, to block children’s’ access to harmful content. [11]

Notwithstanding the Second Circuit’s determination of changed circumstances and the diminution of broadcasters’ market power and influence, [12] the Supreme Court may not follow through with decisions resulting in diminished continuing government oversight and regulation of content potentially harmful to children. The FCC may not appeal the case and the Court may not grant certiorari on appeal. Despite significant changes in the media marketplace, the Court did not grant certiorari in Cablevision Systems Corp. v. F.C.C. [13] where a lower court affirmed the FCC’s must-carry rules that resulted in the carriage of an upstate New York television station by cable systems serving cities on Long Island.

Bear in mind that when the Supreme Court first considered the fleeting expletives case, a majority of the Court endorsed the FCC’s actions, albeit on administrative law grounds. Justice Scalia, the author of the majority decision, made it clear that he believes broadcasters continue to have the ability to harm children. Justice Scalia believes that potential harm in subjecting this assumption to scientific inquiry obviates the need for the FCC to acquire empirical evidence:

There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency. . . . Here it suffices to know that children mimic the behavior they observe-or at least the behavior that is presented to them as normal and appropriate. Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives. Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the Commission. If enforcement had to be supported by empirical data, the ban would effectively be a nullity. [14]

Justice’s Scalia’s concern for children may have constituted one of the reasons the Court has agreed to consider whether states can restrict minors’ access to potentially harmful video games.

[1] F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1813 (2009)(the FCC’s shift in rules deeming single, non-literal use of an expletive not actionably indecent to one where it is subject to possible exceptions for bona fide news coverage and artistic necessity considered no arbitrary or capricious).


[2] Fox Television Stations, Inc., v. F.C.C., __F.3d __, 2010 W.L. 2736937 (2d Cir. July 13, 2010).

[3] “Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose. Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech.” Id. at *14 (Westlaw pagination).

[4] “Broadcasters are entitled to the same degree of clarity as other speakers, even if restrictions on their speech are subject to a lower level of scrutiny. It is the language of the rule, not the medium in which it is applied, that determines whether a law or regulation is impermissibly vague.” Id. at *10.

[5] Id. at *14.

[6] Id.

[7] “The Supreme Court, if it takes up the case, should end all government regulations on the content of broadcasts. Technological change has undermined any justification for limiting the First Amendment rights of broadcast media outlets but not others.” Free Speech for Broadcasters, Too, THE NEW YORK TIMES, editorial (July 16, 2010); available at: http://www.nytimes.com/2010/07/18/opinion/18sun1.html?_r=1&ref=todayspaper.

[8] Fox Television Stations, Inc. 2010 W.L. 2736937 at * 8.

[9] The court compared the assumptions made by courts when evaluating the degree of First Amendment protection applied to indecent speech transmitted by different media with Internet speakers entitled to full protection, citing Reno v. ACLU, 521 U.S. 844, 874-75 (1997), telephone companies not required to ban entirely “dial-a-porn” calling, citingSable Communications of California v. F.C.C., 492 U.S. 115, 131 (1989), and cable television companies free to transmit sexually oriented content at any hour. First Amendment infringing broadcast regulation is subject to a lower level of judicial scrutiny based on “the twin pillars of pervasiveness and accessibility to children.” Fox Television Stations, Inc. 2010 W.L. 2736937 at * 7 citing Pacifica, 438 U.S. at 748-49.

[10] Fox Television Stations, Inc. 2010 W.L. 2736937 at * 7 (citations omitted).

[11] We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available. Id. at *8.

[12] Other courts have undertaken a more nuanced assessment of media competition and market power. For example in Prometheus Radio Project v. FCC, 373 F. 3d 372 (3d Cir. 2004), the Third Circuit Court of Appeals, rejected the FCC’s methodology for determining media market competitiveness which counted the number of outlets regardless of size and impact. This court also noted that major incumbent media ventures had established a significant presence on the Internet thereby challenging the assumption that the Internet provides new content independent of other media.

[13] 570 F.3d 83 (2d Cir. 2009), cert. den. Cablevision Systems Corp. v. F.C.C., __ S.Ct.__, 2010 W.L. 322891, (U.S. May 17, 2010) (NO. 09-901).

[14] F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1813 (2009).

[15] Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009) , cert. granted sub nom., Schwarzenegger v. Entertainment Merchants Ass’n, 130 S.Ct. 2398, (U.S. Apr 26, 2010) (NO. 08-1448).

New Work in Progress

I have completed a draft of a paper that examines how Internet Service Providers claim First Amendment speaker rights even as they also claim to operate as neutral conduits. By claiming to operate as conduits, ISPs can secure “safe harbor” exemption from tort and copyright liability.

I argue that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.

Here's the abstract:

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.

While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission’s regulatory regime inhibits First Amendment protected expression.

For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly “walled garden,” and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets.

Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas.

This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.

You can access the paper at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=102928, and http://works.bepress.com/robert_frieden/