Free speech

Six days later, FCC chair says Trump can’t order FCC to revoke TV licenses

Pai response is “better than nothing,” but critics want stronger rebuke of Trump.

Jon Brodkin – Oct 17, 2017 1:49 pm | 131

FCC Chairman Ajit Pai. Credit: Getty Images | Bloomberg

Federal Communications Commission Chairman Ajit Pai initially resisted calls to tell President Trump that the FCC won’t revoke broadcast licenses from stations whose news coverage Trump dislikes.

But today, six days after Trump first said that NBC and other networks should have their licenses challenged, Pai said the FCC won’t pull licenses based on the content of news reports.

Pai was on a panel at a telecom law conference hosted by the Mercatus Center when moderator Greg Ip of The Wall Street Journal referred to Trump’s statements that news stations are spreading “fake news” and should have their licenses challenged.

“Should broadcasters be held to account for their content when it comes to whether they get to keep a license or win a new one?” Ip asked Pai (video).

Pai did not make any direct reference to Trump but said the following:

I believe in the First Amendment. The FCC under my leadership will stand for the First Amendment. And 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.

Ip also asked Pai if there is any role for the FCC to determine what is “fake news.”

“Traditionally that has not been within the FCC’s jurisdiction,” Pai said. “I’m a lawyer by training, of course. I tend to hew as closely as I can to the terms of the Communications Act and to other applicable legal principles, and so that’s the standard that we adopt, at least going forward.”

“An affront to the First Amendment”

Pai also discussed the FCC’s history with the Fairness Doctrine, which was eliminated in 1987. When in force, the doctrine required stations to devote some programming to controversial issues of public importance and to air contrasting views on those issues.

“We learned that it was an affront to the First Amendment to have the government micromanaging how much time a particular broadcast outlet decided to devote to a particular topic,” Pai said today.

Moreover, “it was an administrative nightmare. You had FCC employees literally spending hours upon hours listening to broadcasts, watching them, and logging to the second how much time a broadcaster spent on one side of the issue vs. the other,” Pai said. (Pai’s statement may also be referring to the separate Equal-time Rule.

FCC Commissioner Michael O’Rielly, a Republican, defended Trump’s criticism of the media but said that “politics” should not interfere with FCC decision-making.

Democrats Jessica Rosenworcel and Mignon Clyburn were the first FCC commissioners to respond to Trump last week, saying that the FCC must support First Amendment free speech protections.

“Better than nothing”

Democratic lawmakers and press freedom advocates had been urging Pai to speak out on this topic for days. Today, they said that Pai should have acted more quickly and should have made a stronger statement.

“This statement is better than nothing, but it is merely a reiteration of the FCC’s authorities under the law,” Senator Brian Schatz (D-Hawaii) said in a statement issued today. “What we needed is a full-throated defense of the independence of the FCC against political interference. When the president announced his intent to retaliate against a broadcaster based on content, the FCC should have rejected it.”

Rep. Frank Pallone, Jr (D-N.J.) also wants a stronger commitment from Pai.

“Chairman Pai was right to assure the public that the FCC cannot revoke any broadcast licenses based on the content of a specific newscast, but I am disappointed that the chairman continues to remain silent on the president’s ongoing efforts to intimidate and threaten news outlets,” Pallone said. “The chairman should therefore be prepared to commit—under oath, if necessary—that he will take no actions whatsoever to retaliate against news outlets in response to the President’s pressure.”

CEO Craig Aaron of advocacy group Free Press offered a similar response:

I’m not sure why it took Ajit Pai almost a week to say anything about President Trump’s dangerous comments, but I’m glad he is willing to acknowledge that the First Amendment still applies at the FCC.

This isn’t the first time Pai has had to respond to a Trump attack against journalists. And it likely won’t be the last. Trump’s assault on press freedom will continue until enough people—including those like Pai who are aligned with his administration—renounce the president in stronger and more direct terms.

Georgetown Law lecturer Andrew Schwartzman, an attorney who specializes in media and telecommunications policy, said that “Pai’s statement is a profile in cowardice.” Pai should have offered a more direct rebuke of Trump, Schwartzman said.

“Unlike his predecessors, who have forthrightly stood up to presidential interference, he continues to equivocate,” Schwartzman told Ars. “He needs to say that President Trump has no right to interfere in the FCC’s licensing process and he will ignore the president’s pressure.”

Walking a tightrope

Pai’s supporters said the chair’s opposition to revoking licenses based on news content was already publicly known and that there could be pitfalls in responding to Trump directly.

Yesterday, a Politico story quoted some of Pai’s supporters and said that Pai “could issue a cautious statement and face criticism for not saying enough, or take a bolder stand, which might require him to recuse himself if the FCC ends up reviewing a license issue connected to Trump’s tweets.”

Senate Commerce Committee Chairman John Thune (R-S.D.) told Politico today that Pai’s statement should be enough to end the controversy.

“If he gets in the habit of responding to all of Trump’s tweets… as we all know, that can become kind of an all-consuming process,” Thune told Politico. “I think he probably said what needs to be said, I think we know what his position on the First Amendment is, and he would have a different view than what was articulated by the president in his tweet.”

Listing image: Getty Images | Bloomberg

Jon Brodkin Senior IT Reporter

Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry.

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