Broadcast Attorney Warns Of ‘Chilling Effect’ As FCC Pressure Mounts.

The headlines involving Jimmy Kimmel’s network suspension and the suggestion by Federal Communications Commission Chair Brendan Carr that ABC-TV’s “The View” may come under scrutiny over whether its equal time provision exception should be allowed to remain in place have a familiar ring to a veteran broadcast attorney. Now-retired attorney John Garziglia says with the Kimmel preemption and other governmental content pressures, broadcasters are being teleported back into the days of the now-defunct Fairness Doctrine. 

The Fairness Doctrine was adopted by the Commission in 1949 and remained in place until 1987, when it was unanimously repealed. A federal court later upheld that decision. The policy required radio and television stations to provide balanced coverage of all controversial issues of public importance. However, the equal time rule didn’t need to be a one-for-one in coverage time.

“The practical result of the Fairness Doctrine was that broadcasters largely stayed away from presenting controversial viewpoints,” Garziglia says. “Now, under the current administration pressures, we have the same result as under the former Fairness Doctrine.” He doesn’t believe the FCC will move to reinstitute the policy, in part because the chilling effect makes it unnecessary.

“If a broadcast station fails to present the government’s viewpoint on an issue, it appears to lead to FCC license revocation threats. The same practical result that occurred under the Fairness Doctrine will now ensue,” Garziglia says. “Most prudent broadcasters, not wishing to jeopardize their licenses, will by necessity pull back from any content or viewpoints that could possibly be deemed antithetical to the administration’s point of view. Thus, we now have governmental content suppression – an intrusion into content that was so disparaged decades ago under the Fairness Doctrine— again foisted upon broadcast stations.”

President Trump has long been at odds with the mainstream news media, often suggesting license revocation for broadcasters with whom he disagrees. He said similar statements during his first term in office. But comments in recent days are being heard differently based on how the administration has won concessions from law firms and universities in recent months.

Public interest lawyer Andrew Jay Schwartzman tells CNN that he doubts such a move would be successful, if it were actually attempted, since federal law gives broadcasters broad protections.

"Taking away a broadcast license has so many legal obstacles and takes so long that the FCC doesn't even try," Schwartzman said. "The only exceptions are small radio stations and involve felonious conduct or severe misrepresentations in the application reports to the FCC, and never about program content. No large broadcaster has lost a license since the 1980s, and that was for bribery."

But that is unlikely to stop Trump or Carr from threatening action, and to some critics, that is the point. They believe it is part of an effort to pressure stations into self-censorship.

“Even the threat to revoke a license is no small matter,” Commissioner Anna Gomez said. “It poses an existential risk to a broadcaster, which by definition cannot exist without its license. That makes billion-dollar companies with pending business before the agency all the more vulnerable to pressure to bend to the government’s ideological demands.”

But Carr has said the decision to suspend Kimmel was made by Nexstar and ABC, and sees it as a “step in the right direction” with local operators embracing their public interest obligations for their local communities.

“That’s exactly the way the system is supposed to work from the get-go, but we haven’t seen it in a very long time,” Carr said in an interview with Fox News. “We’ve been clear we are reinvigorating the public interest.”

Some Democrats on Capitol Hill instead see it differently. Rep. Ro Khanna (D-CA) thinks Carr is putting pressure on broadcasters. “This administration has initiated the largest assault on the First Amendment and free speech in modern history. They’re making comedy illegal,” Khanna said. He introduced a motion in the House Oversight Committee on Thursday to subpoena Carr to bring him before the Committee.

Republicans blocked the move, however, in a 24-21 vote along party lines. Oversight Committee Chair James Comer (R-KY) said he believes Carr will appear in front of lawmakers without a subpoena.