My colleague Mark Jamison recently observed that “[f]or decades, well-functioning independent regulatory agencies have been a stabilizing force.” Though primarily addressing the Federal Trade Commission (FTC) following President Donald Trump’s firing of two Democratic commissioners, Jamison highlights four “core principles of stability, predictability, legitimacy, and credibility” for the FTC’s success that also could apply to another independent agency, the Federal Communications Commission (FCC).
Unfortunately, the predictability that exists at the FCC under Republican Chairman Brendan Carr’s leadership is that most Democrats (and some Republicans) will view many of its prominent investigations––ones into programming on CBS, ABC, and NBC, a news story on KCBS radio, and underwriting announcements on NPR and PBS––as blatantly partisan efforts to aid Trump and attack press freedom. This perception erodes the FCC’s legitimacy and credibility.
Furthermore, by investigating the diversity, equity, and inclusion (DEI) policies at Comcast/NBCUniversal and Disney/ABC in the name of stopping “invidious forms of DEI discrimination,” Carr is expanding the FCC’s enforcement mission into a realm already policed by multiple federal entities that uphold anti-discrimination laws. They include the Federal Bureau of Investigation, the Equal Employment Opportunity Commission, and the Justice Department’s Civil Rights Division. “From what I know, this enforcement action is out of our lane and out of our reach,” remarked Democratic Commissioner Geoffrey Starks after Carr announced the FCC’s investigation into Comcast/NBCUniversal’s DEI policies and practices.
Carr’s letter to Comcast/NBCUniversal explains that he’s merely following in Trump’s footsteps: “Trump took quick and decisive action to root out the scourge of DEI” by signing an executive order on January 20. As Trump goes, so goes Carr. In short, the FCC’s mission creep panders to the president, eroding the Commission’s stability because it’s hard to predict the regulatory direction in which it will head next, other than a pro-Trump one.
It was Carr’s prerogative to end the FCC’s promotion of its own DEI initiatives, which he did on January 21. Now, he’s spending the Commission’s resources examining “Comcast’s and NBCUniversal’s DEI initiatives, preferences, mandates, policies, programs, and activities.” Carr’s legal hook is that “the Communications Act and Commission rules prohibit regulated entities . . . from discriminating on the basis of race, color, religion, national origin, age, or gender,” thus tethering DEI efforts to illegality.
Carr is leveraging his role as Trump’s anti-DEI enforcer in the media realm by threatening to block mergers. He stated in March that “[a]ny businesses that are looking for FCC approval, I would encourage them to get busy ending any sort of their invidious forms of DEI discrimination.”
Karl Bode recently contended in TechDirt that “Carr isn’t really interested in doing his actual job as head of the FCC” and addressing matters such as “protecting consumers or markets from harmful consolidation.” Instead, Carr’s interest lies in “[h]arassing companies that don’t adequately bend the knee to Trump.” Whether that’s right or wrong, it’s an intensifying perception undermining regulatory credibility.
When Carr now writes about the FCC during Joe Biden’s presidency, he repeatedly brands it “the Biden FCC.” He focuses on its “weaponization” against conservative-affiliated businesses such as Elon Musk’s Starlink, a satellite-constellation internet service. Carr calls it “political retribution plain and simple.”
Some view similarly (but with the shoe now on the other foot) the FCC’s news-distortion investigation into CBS’s 60 Minutes interview with Kamala Harris––an investigation that, like those against ABC and NBC, was previously dismissed but reinstated under Carr’s watch. Democratic Senators Ben Ray Luján (N.M.), Edward Markey (Mass.), and Gary Peters (Mich.) assert that the investigations into ABC, CBS, NBC, NPR, and PBS collectively “appear politically motivated and designed to punish, censor or intimidate members of the free press based on political disagreement with editorial choices.” Carr denies this, proclaiming “[w]e are ensuring that everyone receives fair and even-handed treatment from the FCC.”
The US Supreme Court once wrote that “one man’s vulgarity is another’s lyric.” With the FCC today, one might say that one man’s political payback is another’s fair play.
A bipartisan group of five former FCC commissioners (three Democrats and two Republicans, including two chairs) filed comments in March regarding the FCC’s investigation of the complaint against CBS over the Harris interview. Rachelle Chong, Ervin Duggan, Alfred Sikes, Gloria Tristani, and Tom Wheeler assert that:
By reopening this complaint, the Commission is signaling to broadcasters that it intends to act at the behest of the White House by closely scrutinizing the content of news coverage and threatening the regulatory licenses of broadcasters whose news outlets produce coverage that does not pass muster in the President’s view.
When Trump elevated Carr as chair, Carr said he looked “forward to collaborating with the Trump Administration.” Carr is taking collaboration to a hand-in-glove level that’s eroding the credibility of––in Carr-like parlance––“the Trump FCC” while shredding any semblance of independence.
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