FCC Under Trump Creates More Questions Than Answers For Media
UKRAINE - 2021/11/25: In this photo illustration, U.S. Federal Communications Commission (FCC) seal ... More is seen on a smartphone screen with the US flag in the background. (Photo Illustration by Pavlo Gonchar/SOPA Images/LightRocket via Getty Images)
I doubt too many of my media brethren paid a lot of attention to the Federal Communications Commission in the last four years. And with the flood of tumultuous changes throughout the federal government, you might still not be focused on the FCC – but you need to. Whether you are a legacy broadcasting or cable company, a broadband provider, or Big Tech, you're likely to have a lot more questions than answers about what the new FCC will mean for your business in the next four years.
You might well have expected – or still expect - the Trump FCC 2.0 to deliver a massive deregulatory blitz. For those with long memories (or good Googling skills), you might have anticipated a stripping away of legacy regulations akin to what took place under the Reagan Administration-era FCC.
Reagan-era FCC Chairman Mark Fowler famously quipped that 'TV is just a toaster with pictures,' and the Commission dramatically curtailed significant long-standing regulations of the broadcasting business. It eliminated the Fairness Doctrine leading to the explosion of partisan talk radio, financial syndication ('fin-syn') rules that protected the market for independent TV producers, relaxed the limits on the concentration of TV station ownership, and facilitated Rupert Murdoch's purchase of the TV stations that became the foundation of the Fox network. Pretty major stuff.
On the surface, you might think the Trump-era FCC, led by Chairman Brendan Carr, is of the same type of regulatory slashing mindset. The Commission issued a Notice of Proposed Rulemaking entitled In Re: Delete, Delete, Delete – no you can't make this stuff up – inviting unlimited comments on "every rule, regulation or guidance document that the FCC should eliminate.' This is the ultimate spray and pray (de)regulatory approach, but at least according to DC insiders I spoke with, it isn't clear what specific deregulatory agenda is at work in that proceeding. The FCC also recently relaxed longstanding rules requiring maintenance and operation of copper wire telecom infrastructure, but here too we can't say this is yet reflective of some broader effort to deregulate the mobile and wireline phone businesses.
For years, conservatives railed against the 'public interest' standard of the Communications Act of 1934 being used to justify broad and activist FCC actions in areas such as the Fairness Doctrine, children's TV programming, cable and satellite programming regulations and net neutrality. Yet now we have an FCC Chairman employing as broad a definition of 'public interest' as we've ever seen. Rather than reflecting a consistent deregulatory agenda, the initial indicators under the Trump-driven FCC actually suggest a selective but energized hands-on rather than hands-off approach to media and communications regulation. It just happens to be a vastly different set of hands operating than we've seen before.
The Commission has directly initiated investigations of DEI practices at Comcast and Disney, suggesting that their practices may violate equal employment opportunity commission rules. Putting aside the irony of aggressive EEOC enforcement by a Trump Administration agency, the one thing you can't call these actions is deregulatory. The Carr FCC isn't making a move to limit its authority to regulate media companies – quite the contrary. This is activist government in action, adding a new arrow to its quiver of arrows to sling at media opponents.
Remember when after the election so many thought, and some like Warner Bros. Discovery's David Zaslav hoped out loud, that it was going to be a media dealapalooza? But according to a recent statement from Chairman Carr, when it comes to approving media and communications mergers, 'if there's businesses out there that are still promoting invidious forms of DEI discrimination, I really don't see a path forward where the FCC could reach the conclusion that approving the transaction is going to be in the public interest." This should put a chill down the spine of companies with deals in the pipeline such as Skydance and Paramount Global, as well as T-Mobile and U.S. Cellular, not to mention the lengthy list of companies who had been expecting to pass 'Go' quite easily with a Trump FCC.
Upon appointing Chairman Carr, Trump called him a 'warrior for free speech.' Yet we now have the FCC actively investigating CBS over its editing of a 60 Minutes interview with Kamala Harris, claiming that its editing represents a 'news distortion.' This is of course all the more dangerous when you realize that Paramount Global is depending upon the FCC to eventually approve of its merger with Skydance. If you get into selective enforcement of news organizations with parent companies that have a host of business before the federal government, it's hard to see where this ends.
The CBS action has even raised the ire of a coalition of politically conservative advocacy organizations, including The Center for Individual Freedom, Americans for Tax Reform, and the Taxpayers Protection Alliance, which recently implored the Commission to drop its CBS investigation. This isn't about right vs. left here. Trump was certainly right to call Carr a 'warrior' but what happened to the 'free speech' part?
If you have a Trump FCC that loosens rather than tightens the meaning of 'public interest,' the potential for regulatory uncertainty grows exponentially. Despite strong constituencies for deregulation from the industries involved, regulations such as ownership concentration, and enforcement of regulations on programming negotiations, retransmission consent and must carry and even compliance with the limited content-related rules on the books are all fair game for an activist 'let's make a deal' regulatory approach.
Earlier in my career as a General Counsel, my boss would always ask in a dispute which side had the better legal argument. Today the answer to such a question would be merely one data point among many where mischievous and politicized enforcement appears to rule the day. As someone who teaches a graduate-level course in media dealmaking and negotiation, I'm afraid that skillset, well beyond a careful legal interpretation, has never been more desperately needed by a host of media and communications industry players at the mercy of government regulatory whims.
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