Policy

Federal Communications Commission Chairman Brendan Carr is taking a hard line against broadcast TV stations accused of bias against Republicans and President Trump. To pressure broadcasters, Carr is invoking the rarely enforced news distortion policy that was developed starting in the late 1960s and says the FCC should consider revoking broadcast licenses.

The FCC has regulatory authority over broadcasters with licenses to use the public airwaves. But Carr’s two immediate predecessors—Democrat Jessica Rosenworcel and Republican Ajit Pai—both said that punishing stations based on the content of news programs would violate the First Amendment right to free speech.

Rosenworcel and Pai’s agreement continued a decades-long trend of the FCC easing itself out of the news-regulation business. Two other former FCC chairs—Republican Alfred Sikes and Democrat Tom Wheeler—have urged Carr to change course.

Carr has multiple probes in progress, and his investigation into CBS over the editing of an interview with Kamala Harris has drawn condemnations from both liberal and conservative advocacy groups that describe it as a threat to the Constitutional right to free speech. One plea to drop the investigation came in a March 19 letter from conservative groups including the Center for Individual Freedom, Grover Norquist’s Americans for Tax Reform, and the Taxpayers Protection Alliance.

“While we understand the concerns that motivate the complaint, we nonetheless fear that an adverse ruling against CBS would constitute regulatory overreach and advance precedent that can be weaponized by future FCCs,” the letter said. The letter argued that “Democrats and leftwing activist groups have repeatedly worked to weaponize” the government against free speech and that the FCC should “help guard against future abuses by Democrats and leftwing organizations by streamlining license renewals and merger reviews and eliminating the news distortion and news hoax rules.”

“The flimsiest of complaints”

Andrew Jay Schwartzman, an expert on media law and senior counselor for the Benton Institute for Broadband & Society, told Ars that “the CBS complaint is utterly lacking in merit. What is alleged doesn’t come within light-years of a violation of any FCC policy.”

The Foundation for Individual Rights and Expression (FIRE), an advocacy group, called Carr’s investigation of CBS “a political stunt,” an “illegitimate show trial,” and an “unconstitutional abuse of regulatory authority.” Democratic lawmakers are demanding answers from Carr about what they call “bogus investigations” designed to “target and intimidate news organizations and broadcasters in violation of the First Amendment.”

The CBS investigation was also lambasted in comments submitted by Christopher Terry, a professor of media law and ethics at the University of Minnesota, and J. Israel Balderas, a journalism professor at Elon University who is also a First Amendment attorney and a former FCC media advisor.

“The agency under Brendan Carr appears to be, based on the flimsiest of complaints, pursuing media outlets critical of Donald Trump during the 2024 campaign, while ignoring similar complaints from the public about Trump-friendly media outlets,” Terry and Balderas wrote. “Being the speech police is not the FCC’s job, but enforcing any restrictions in a selective, much less a partisan, way is problematic, and likely to lead to extensive legal actions challenging FCC authority.”

FCC’s long shift away from news regulation

The FCC has historically regulated broadcast news with the Fairness Doctrine, which no longer exists, and the news distortion policy, which is still in place. The Fairness Doctrine was introduced in 1949 to guarantee “that the public has a reasonable opportunity to hear different opposing positions on the public issues of interest and importance in the community.” This requirement to air contrasting views remained in place until 1987.

After losing a court case brought by a TV station, the FCC was forced to reconsider its enforcement of the Fairness Doctrine and decided to repeal it. The Reagan-era FCC concluded that the Fairness Doctrine “violates the First Amendment” and works against the public interest. “Despite the physical differences between the electronic and print media, their roles in our society are identical, and we believe that the same First Amendment principles should be equally applicable to both,” the FCC said at the time.

US regulation of broadcast news continued to be lessened through a series of commission decisions and court rulings. “Even the relaxation of non-content regulations, such as the extension of stations’ license terms from three to eight years, and adoption of rules that make challenges to license renewals by the public or potential competitors almost impossible, have bolstered broadcasters’ editorial rights against outside review,” said a 2001 article by Santa Clara University professor Chad Raphael in the journal Communication Law and Policy.

The FCC’s general shift away from regulating news content made it surprising that the news distortion policy survived, Raphael wrote. “Given this deregulatory trend, it is remarkable that the Commission has preserved its little-known rules against licensees’ deliberately distorting the news… The distortion rules have drawn scant commentary in the regulatory literature, especially in contrast to the outpouring of debate over their cousin, the Fairness Doctrine,” the article said.

But the FCC never issued many findings of news distortion, and such findings have been nearly nonexistent in recent decades. Raphael’s analysis found 120 decisions on news distortion between 1969 and 1999, and only 12 of them resulted in findings against broadcasters. Those 12 decisions were generated by eight cases, as several of the cases “generated multiple decisions as they went through the appeals process.”

“The number of reported decisions drops off dramatically after 1976, and there is only one finding of distortion after 1982, when the Reagan-era FCC began to remove content regulations on broadcast news,” Raphael wrote. The one post-1982 finding of distortion was issued in a letter of admonishment to NBC in 1993 “for staging a segment of a Dateline NBC report on unsafe gas tanks in General Motors trucks,” Raphael wrote.

GM investigated the incident and NBC “admitted to staging the explosion, made an on-air apology to GM, fired three producers who contributed to the segment, and eventually dismissed its news president,” he wrote. The FCC itself sent the letter quietly, with “the first mention of this action appearing in a 1999 decision rejecting a challenge to NBC’s license renewals.”

Investigations rare, penalties even rarer

The rare findings of news distortion were usually accompanied by other infractions. “Most penalties consisted of issuing letters of admonishment or censure that did not figure heavily in subsequent license renewals, all of which were successful,” Raphael wrote.

Despite Raphael’s paper being nearly a quarter-century old, it’s practically up to date. “Since the time of Raphael’s study, it appears that the Commission has only considered allegations of news distortion in a very small number of cases,” said a 2019 paper by Joel Timmer, a professor of film, television, and digital media at Texas Christian University.

Timmer found eight post-1999 cases in which news distortion allegations were considered. Most of the allegations didn’t get very far, and none of them resulted in a finding of news distortion.

The FCC technically has no rule or regulation against news distortion. “Instead, it has a news distortion policy, developed ‘through the adjudicatory process in decisions resolving challenges to broadcasters’ licenses,'” Timmer wrote.

The FCC dismissed an allegation of news distortion over broadcast networks incorrectly projecting that Al Gore would win Florida in the 2000 presidential election, he wrote. The FCC said the incorrect projections were “not a sufficient basis to initiate such an investigation.”

The FCC did investigate an allegation of news distortion in 2007. Two reporters at Florida station WTVT alleged a violation when their employer failed to air reports on the use of synthetic bovine growth hormone by dairy farmers. “The reporters alleged that station management and ownership demanded changes in their report as a result of pressure from Monsanto, the company that produces BGH,” but the FCC decided it was “a legitimate editorial dispute” and not “a deliberate effort to coerce [the reporters] into distorting the news,” Timmer wrote.

There was also a 2007 case involving a Detroit TV station’s report “that a local official and several prominent local business people consorted with prostitutes during a fishing trip to Costa Rica,” Timmer wrote. “It was alleged that a reporter from WXYZ-TV actually paid prostitutes to stay at the hotel at which the trip’s participants were staying, then falsely reported that the participants consorted with them. While the FCC acknowledged that, if true, this could constitute staging of the news, there was a lack of extrinsic evidence to establish that the licensee, its top management, or its news management were involved in an attempt to deliberately distort or falsify the news, causing the news distortion claim to fail.”

Timmer’s paper summarized the FCC’s post-1999 news distortion enforcement as follows:

In addition to the post-1999 cases already discussed—those involving reporting on bovine growth hormone, erroneous projections that Al Gore would win Florida in the 2000 presidential election—and reporting regarding prostitutes in Costa Rica with a public official and business people—charges of news distortion were raised and discussed in only a handful of instances. In addition to these three cases, there were five other cases since 1999 in which the Commission considered allegations of news distortion. In only two of the eight cases was there any detailed discussion of news distortion claims: the BGH story and the story involving prostitutes in Costa Rica. Significantly, in none of the cases was news distortion found to have occurred.

Terry told Ars that he’s not aware of any news distortion findings since the 2019 paper.

The FCC has a separate broadcast hoax rule enacted in 1992. As of 2000, “no broadcaster had ever been fined pursuant to the rule, nor had any stations lost their licenses for violating the rule,” and “it appears that the FCC has considered allegations of broadcast hoaxes only three times since 2000, with none of those cases resulting in the FCC finding a violation of the rule,” Timmer wrote.

The 60 Minutes investigation

In one of her last official acts before Trump’s inauguration and her departure from the FCC, Rosenworcel dismissed complaints of bias against Trump related to ABC’s fact-checking during a presidential debate, the editing of a CBS 60 Minutes interview with Harris, and NBC putting Harris on a Saturday Night Live episode. Rosenworcel also dismissed a challenge to a Fox station license alleging that Fox willfully distorted news with false reports of fraud in the 2020 election that Trump lost.

Carr quickly revived the three complaints alleging bias against Trump, which were filed by a nonprofit law firm called the Center for American Rights. Of these, the ABC and CBS complaints allege news distortion. The NBC complaint alleges a violation of the separate Equal Time rule. The complaints were filed against individual broadcast stations because the FCC licenses stations rather than the networks that own them or are affiliated with them.

Carr has repeatedly expressed interest in the complaint over 60 Minutes, which alleged that CBS misled viewers by airing two different responses to the same question about Israeli Prime Minister Benjamin Netanyahu, one on 60 Minutes and the other on Face the Nation. CBS’s defense—which is supported by the unedited transcript and video of the interview—is that the two clips show different parts of the same answer given by Harris.

On February 5, the Carr-led FCC issued a public notice seeking comment on the CBS investigation. The FCC’s public notices aren’t generally seen by many people, but the FCC tried to encourage participation in this proceeding. The agency temporarily added a banner message to the top of the consumer complaints page to urge the public to submit comments about the 60 Minutes interview.

“Interested in adding your comments to the proceeding investigating news distortion in the airing of a ’60 Minutes’ interview with then Vice President Kamala Harris?” the banner message said, linking to a page that explained how to submit comments on the proceeding.

Former chairs blast Carr

One filing was submitted by the former chairs Sikes and Wheeler, plus three other former FCC commissioners: Republican Rachelle Chong, Democrat Ervin Duggan, and Democrat Gloria Tristani. “These comments are submitted to emphasize the unprecedented nature of this news distortion proceeding, and to express our strong concern that the Federal Communications Commission may be seeking to censor the news media in a manner antithetical to the First Amendment,” the bipartisan group of former FCC chairs and commissioners wrote.

The FCC has historically “enforced the [news distortion] policy very rarely, and it has adopted guardrails requiring that complaints be summarily dismissed in all but the most exceptional circumstances,” they wrote, adding that there are no exceptional circumstances warranting an investigation into CBS.

“The Commission’s departures from its typical practice and precedent are especially troubling when viewed in context. This Administration has made no secret of its desire to revoke the licenses of broadcasters that cover it in ways the President considers unfavorable,” the filing said.

Pointing to the Raphael and Timmer analyses, the former FCC leaders wrote that the agency “issued findings of liability on news distortion in just eight cases between 1969 and 2019—and in fact in just one case between 1985 and 2019. None of the cases that found news distortion concerned the way a broadcaster had exercised its editorial discretion in presenting the news. Instead, each case involved egregious misconduct, including the wholesale fabrication of news stories.”

The FCC’s news distortion policy applies a multi-part test, the group noted. A finding of news distortion requires “deliberate distortion” and not mere inaccuracy or differences of opinion, “extrinsic evidence (i.e., beyond the broadcast itself) demonstrating that the broadcaster deliberately distorted or staged the news” and that “the distortion must apply to a ‘significant event,’ rather than minor inaccuracies or incidental aspects of the report.” Finally, FCC policy is to “only consider taking action on the broadcaster’s license if the extrinsic evidence shows the distortion involved the ‘principals, top management, or news management’ of the licensee, as opposed to other employees.”

The FCC has historically punished licensees only after dramatic violations, like “elaborate hoaxes, internal conspiracies, and reports conjured from whole cloth,” they wrote. There is “no credible argument” that the allegations against CBS “belong in the same category.”

CBS transcript and video supports network

The Center for American Rights complaint says that an FCC investigation of”extrinsic evidence” could include examining outtakes to determine whether “the licensee has deliberately suppressed or altered a news report.” The complaint criticized CBS for not providing the complete transcript of the interview.

In late January, the Carr-led FCC demanded that CBS provide an unedited transcript and camera feeds of the interview. CBS provided the requested materials and made them available publicly. The transcript supports CBS’s defense because it shows that what the Center for American Rights claimed were “two completely different answers” were just two different sentences from the same response.

“We broadcast a longer portion of the vice president’s answer on Face the Nation and broadcast a shorter excerpt from the same answer on 60 Minutes the next day. Each excerpt reflects the substance of the vice president’s answer,” CBS said.

The Center for American Rights complained that in one clip, Harris answered the question about Netanyahu by saying, “Well, Bill, the work that we have done has resulted in a number of movements in that region by Israel that were very much prompted by, or a result of many things, including our advocacy for what needs to happen in the region.”

In the second clip, Harris responded to the question by saying, “We are not going to stop pursuing what is necessary for the United States to be clear about where we stand on the need for this war to end.”

“Same interview, same question, two completely different answers,” the Center for American Rights’ complaint said.

But the CBS transcript and video shows that Harris spoke these two sentences as part of one answer to the question. CBS aired the two sentences in different clips, but neither contradicts the other.

Center for American Rights stands by complaint

The Center for American Rights declined to comment on the transcript and video when contacted by Ars, but it pointed us to the final comments it submitted in the FCC proceeding. The filing argues for an expansive approach to regulating news distortion, saying that “slanting the news to benefit one political candidate violates the distortion doctrine.”

“The core of our concern is that 60 Minutes‘ slice-and-dice journalism was an act of slanting the news to favor a preferred candidate and part of a pattern of CBS News consistently favoring a candidate and party… The Commission is uniquely positioned as the relevant authority with the power to investigate to determine whether CBS engaged in intentional news slanting,” the filing said.

The Center for American Rights filing also complained that “Fox and Sinclair [we]re subject to relentless regulatory pressure under the prior chair… but then everyone screams that the First Amendment is being eviscerated when CBS is subject to attention under the same policy from the new chair.”

“‘Selective enforcement’ is when Fox and Sinclair are constantly under regulatory pressure from Democrats at the FCC and in the Congress and from their outside allies, but then unchecked ‘press freedom’ is the sacrosanct principle when CBS allegedly transgresses the same lines when Republicans are in power,” the group said, responding to arguments that punishing CBS would be selective enforcement.

As previously mentioned in this article, Rosenworcel rejected a news distortion complaint and license challenge that targeted Fox’s WTXF-TV in Philadelphia. “Such content review in the context of a renewal application would run afoul of our obligations under the First Amendment and the statutory prohibition on censorship and interference with free speech rights,” Rosenworcel’s FCC said.

The conservative Sinclair Broadcasting Group was fined $48 million for portraying sponsored TV segments as news coverage and other violations in the largest-ever civil penalty paid by a broadcaster in FCC history. But that happened under Republican Ajit Pai, the FCC chair during Trump’s first term. Pai’s FCC also blocked Sinclair’s attempt to buy Tribune Media Company.

Carr defended his investigation of CBS in a letter to Sen. Richard Blumenthal (D-Conn.). “During the Biden Administration, the FCC and Democrats across government repeatedly weaponized our country’s communications laws and processes. In contrast, I am restoring the FCC’s commitment to basic fairness and even-handed treatment for all,” Carr wrote.

Carr said he “put the CBS complaint on the same procedural footing that the Biden FCC determined it should apply to the Fox complaint.” By this, he means that the previous administration held a proceeding to consider the Fox complaint instead of dismissing it outright.

“The Biden FCC’s approach to the Fox petition stands in stark contrast to the approach the Biden FCC took to the CBS petition. Unlike the Fox petition, the Biden FCC just summarily dismissed the CBS one,” Carr wrote. Carr also said the Biden-era FCC “fail[ed] to process hundreds of routine Sinclair license renewals” and that the FCC is now “clearing and renewing those licenses again.”

The Fox case involved very different allegations than the CBS one. While CBS is facing investigation for airing two parts of an interviewee’s answer in two different broadcasts, a Delaware judge ruled in 2023 that Fox News made false and defamatory statements claiming that Dominion Voting Systems committed election fraud by manipulating vote counts through its software and algorithms. Fox subsequently agreed to pay Dominion $788 million in a settlement instead of facing trial.

Carr could test FCC authority in court

The Rosenworcel FCC said the CBS complaint was meritless in its dismissal. “Opening a news distortion enforcement action under Commission precedent—as rare as it is—turns on the important question of whether any information or extrinsic evidence was submitted to the Commission indicating an ‘intentional’ or ‘deliberate’ falsification of the news,” the decision said. “The Complaint submitted fails to do so. The Commission simply cannot wield its regulatory authority in a manner completely inconsistent with long-settled precedent that the Commission not ‘second guess’ broadcast decisions.”

The comments submitted by former chairs and commissioners said the “transcript confirms that the editing choices at issue lie well within the editorial judgment protected by the First Amendment.” TechFreedom, a libertarian-leaning think tank, told the FCC that “if the new standard for triggering a news distortion analysis is that any edits of raw interview video can be subject to challenge, then the FCC will spend the next four years, at least, fielding dozens, hundreds, thousands of news distortion complaints. Since every taped interview is edited, every taped interview that is aired will be ripe for an FCC complaint, which will have to be adjudicated. The news distortion complaint process will be weaponized by both political parties, and the business of the FCC will grind to a halt as it will have to assign more and more FTEs [full-time employees] to processing these complaints.”

Although CBS appears to have a strong defense, Carr can make life difficult for broadcasters simply by opening investigations. As experts have previously told Ars, the FCC can use its rules to harass licensees and hold up applications related to business deals. Carr said in November that the news distortion complaint over the 60 Minutes interview would factor into the FCC’s review of CBS owner Paramount’s transfer of TV broadcast station licenses to Skydance.

Jeffrey Westling, a lawyer who is the director of technology and innovation policy at the conservative American Action Forum, has written that the high legal bar for proving news distortion means that cases must involve something egregious—like a bribe or instructions from management to distort the news. But Westling has told Ars it’s possible that a “sympathetic” court could let the FCC use the rule to deny a transfer or renewal of a broadcast license.

“The actual bounds of the rule are not well-tested,” said Westling, who argues that the news distortion policy should be eliminated.

An FCC webpage that was last updated during Rosenworcel’s term says the FCC’s authority to enforce its news distortion policy is narrow. “The agency is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press,” the FCC said, noting that “opinion or errors stemming from mistakes are not actionable.”

1960s FCC: “No government agency can authenticate the news”

The high bar set by the news distortion policy isn’t just about issuing findings of distortion—it is supposed to prevent many investigations in the first place, the Rosenworcel FCC said in its dismissal of the CBS complaint:

Indeed, the Commission has established a high threshold to commencing any investigation into allegations of news distortion. It is not sufficient for the Complainant to show that the material in question is false or even that the Licensee might have known or should have known about the falsity of the material. A news distortion complaint must include extrinsic evidence that the Licensee took actions to engage in a deliberate and intentional falsification of the news.

The comments submitted by Terry and Balderas said that “case law is clear: news distortion complaints must meet an extraordinary burden of proof.”

“The current complaint against CBS fails to meet this standard,” Terry and Balderas wrote. “Editing for clarity, brevity, or production value is a standard journalistic practice, and absent clear evidence of deliberate fabrication, government intervention is unwarranted. The current complaint against CBS presents no extrinsic evidence whatsoever—no internal memos, no whistleblower testimony, no evidence of financial incentives—making it facially deficient under the extrinsic evidence standard consistently applied since Hunger in America.”

Hunger in America was a 1968 CBS documentary that the FCC investigated. The FCC’s decision against issuing a finding of news distortion became an important precedent that was cited in a 1985 court case that upheld another FCC decision to reject an allegation of news distortion.

“The FCC’s policy on rigging, staging, or distorting the news was developed in a series of cases beginning in 1969,” said the 1985 ruling from the US Court of Appeals for the District of Columbia Circuit. “In the first of these, Hunger In America, CBS had shown an infant it said was suffering from malnutrition, but who was actually suffering from another ailment.”

The 1960s FCC found that “[r]igging or slanting the news is a most heinous act against the public interest” but also that “in this democracy, no government agency can authenticate the news, or should try to do so.” As the DC Circuit Court noted, in Hunger in America and “in all the subsequent cases, the FCC made a crucial distinction between deliberate distortion and mere inaccuracy or difference of opinion.”

Carr: FCC “not close” to dismissing complaint

Despite this history of non-enforcement except in the most egregious cases, Carr doesn’t seem inclined to end the investigation into what seems to be a routine editing decision. “Carr believes CBS has done nothing to bring the commission’s investigation to an end, including a fix for the alleged pervasive bias in its programming, according to people with knowledge of the matter,” said a New York Post report on March 28.

The report said the Paramount/Skydance merger “remains in FCC purgatory” and that the news distortion investigation is “a key element” holding up FCC approval of the transaction. An anonymous FCC official was quoted as saying that “the case isn’t close to being settled right now.”

We contacted Carr and will update this article if we get a response. But Carr confirmed to another news organization recently that he doesn’t expect a quick resolution. He told Reuters on March 25 that “we’re not close in my view to the position of dismissing that complaint at this point.”