End the FCC
Trump’s attacks on the media via the FCC demonstrate that the federal government has been given too much power
There are many chickens coming home to roost in the second Trump administration. For more than a century, we have been creating weak spots in our constitutional system that pose a huge potential for abuse by a power-hungry chief executive. Now Donald Trump is seeking all of them out and using them.
Let’s zero in on one particularly dangerous area: his abuse of the Federal Communications Commission (FCC), the regulator for the airwaves and therefore for broadcast media.
Shortly after taking office, Trump went on social media to direct his new FCC chair, Brendan Carr, to punish CBS because Trump didn’t like reports about Ukraine and Greenland on “60 Minutes.” He said that the network “should lose their license,” and he urged Carr to “impose the maximum fines and punishment, which is substantial, for their unlawful and illegal behavior.” The FCC does not license the network itself, as Trump seems to think, but it does control the licenses for the network’s individual local TV stations.
Carr himself has accused MSNBC and NBC of “news distortion” for choosing not to air a White House press conference, which supposedly contained “obvious facts of public interest.” In effect, Carr is appointing himself assignment editor for the nation’s newsrooms.
It should go without saying—but apparently it doesn’t—that these are all editorial decisions that belong to news staff and their editors, not to the chair of the FCC. The fact that Carr can act as if this is his role reveals a long history of excessive government power that needs to be reined in.
The ‘Public Interest,’ Whatever That Is
When radio stations first began broadcasting in the early 20th century, there was a scramble for space on the electromagnetic spectrum and a need to set rules establishing and clarifying broadcast rights.
But the government didn’t establish broadcast rights—it issued broadcast licenses. The difference is a fundamental one. A “right” implies that you don’t need the government’s permission; a “license” implies that you do. In America, no one ever had to get a license to buy and operate a printing press. But suddenly, in the new medium of radio (and then television), the government insisted that you needed a license to build and operate an antenna.
The licensing process, as set down in the Communications Act of 1934, further required that the FCC must decide that giving you a license to broadcast is in the “public interest, convenience and necessity.” Try proving to a skeptical regulator that what you have to say is not merely in the “public interest” but is actually a necessity.
The law also insists that this power should not be interpreted “to give the Commission the power of censorship over the communications or signals transmitted by any station.” Yet the “public interest” standard is notoriously vague and subjective. One former FCC chairman describes it as “a pretty malleable concept,” which is precisely what you don’t want when it comes to regulating speech. This standard has never been more specifically defined.
Not only that, but the FCC has been further charged with punishing “news distortion,” which is just as subjective. This power is what Brendan Carr cites in threatening NBC. “News distortion,” as he sees it, includes refusing to pass on Trump’s own distortions.
You will not be surprised to find that the history of the “public interest” requirement for broadcast licenses is full of examples of its abuse. Particularly in the mid-20th century, presidents from John F. Kennedy through Richard Nixon invariably interpreted the “Fairness Doctrine”—a requirement that broadcasters provide a balance of opinions—to imply that what was really “unfair” was criticism of their own administrations.
The FCC’s power has not been entirely unlimited. The structure of the FCC was designed to discourage abuses, putting major decisions in the hands of a commission whose members are supposed to include representatives from the two main political parties. This partisan balance would theoretically prevent the FCC from rigging the game to support one party over the other—or at least give dissenting members a voice and allow them to issue a warning about abuses.
As we will see, that is a protection Donald Trump is trying to break down. But the reason such protections are needed is because the FCC has been given an abusive power it should never have been granted.
The Perfect Storm
The danger of the FCC’s power can be seen most clearly in a case where it connects with a similar abuse of the power of the Federal Trade Commission (FTC).
In 1914, the FTC was given the power to approve corporate mergers, certifying whether or not they are in violation of the antitrust laws. But the antitrust laws are also notoriously vague and subjective. As the old saying goes, if you sell at prices lower than your competitors, that’s predatory pricing; if you sell at prices higher than your competitors, that’s monopolistic pricing; and if you sell at the same price as your competitors, that’s collusion. Anyone can be found guilty if the regulators try hard enough.
In practice, what this does is create a veto point at which executive branch officials can arbitrarily stall an important business deal—and use this power to make extortionate demands. As with the FCC, this abusive potential is supposed to be held back by the FTC’s bipartisan commission. But in this case, Trump has taken the further step of illegally firing the FTC commission’s Democratic members under the guise of an autocratic theory, known as the "unitary executive theory,” that purports to give him sole decision-making power over executive agencies that were designed to be shielded from direct political control.
Trump has, predictably, been using this power to shake down media companies. Here’s where the vague and excessive powers of the FTC merge in a perfect storm with the tyrannical powers of the FCC.
Paramount Global, the parent company of CBS, has long been pursuing a merger with TV and film production company Skydance. But the merger requires FTC approval—and the FTC requires the FCC to certify that transferring the broadcast licenses of CBS stations to Skydance would be in the “public interest.” Which Brendan Carr has indicated he might not do.
Meanwhile, Donald Trump is personally suing CBS over a “60 Minutes” interview with his 2024 rival Kamala Harris, because Harris performed well in the interview, and Trump claims that was only due to “deceptive editing.” This case is an obvious assault on the editorial freedom of CBS and would quickly be rejected in court as a violation of the First Amendment. But Paramount is considering settling the suit anyway and paying millions of dollars to Trump. The idea has gotten far enough that “60 Minutes” producer Bill Owens resigned in protest. This was shortly after Trump demanded FCC action because he was angry at those reports on Ukraine and Greenland—and Paramount Chairwoman Shari Redstone demanded to track other upcoming “60 Minutes” coverage that might anger Trump.
This is how the FCC’s “public interest” requirement gives the U.S. president the power to punish criticism and suppress positive portrayal of his political rivals.
The Liberal Dream Meets Authoritarian Reality
The dream of the 20th century’s “liberals” was that we were going to have a big and expansive government that reaches into every portion of life—but we would still be liberals, meaning that we would still be a free society with freedom of speech. Some of us were always skeptical of this, realizing that the government’s expanded regulatory powers, combined with its ability to dole out funding (for example, to universities), could just as well be laying the foundations for an authoritarian state.
Previous presidents have made piecemeal attempts to abuse this power. In addition to JFK and Nixon abusing the Fairness Doctrine, FDR denied broadcast licenses to newspaper owners, since he viewed the newspapers as hostile to him. Now Trump is showing us the full abusive potential of big government by exploiting it shamelessly—and if he gets away with it in cases like his shakedown of Paramount, this is just the beginning.
Trump’s actions revealed something that will have to be undone. Peeling back the dependence of much of society on massive government grants will be difficult, but there is one easy thing we can do that could be enacted by Congress tomorrow: We can end the arbitrary power of the FCC. Shrink it down into a technical office for the registration of broadcast rights—but revoke its capacity to make judgments about whose broadcasts are in the “public interest” and whose news reporting is “distorted.”
We can’t have both an expansive and active regulatory state and a free society. It is time to start ratcheting back the reach of the state, starting with its most blatantly abusive powers.
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