Carr's Iger Letter Is an About Face, Say Academics, Former FCC'er's

“Brendan Carr may be well-intentioned, but he does not represent all conservative thought on unfair press content, whether ink and paper or air and electrons,” said Mark Fowler, FCC chair under President Ronald Reagan. Reagan vetoed congressional efforts to revive the content-regulating fairness doctrine, Fowler pointed out. Said Stuart Benjamin, co-director of Duke Law School's Center for Innovation Policy, “The language of Carr’s letter gives the impression that concerns about the substance of ABC’s coverage motivated his warning of close scrutiny of ABC’s negotiations with its affiliates.”

In the Iger letter, Carr said the public no longer trusts national news networks, noted ABC’s recent defamation settlement with Trump (see 2412160043) and said assessing stations high affiliation fees to fund network-owned streaming services isn’t in line with congressional intent in the 1992 Cable Act. “It is therefore antithetical to the will of Congress that the retransmission consent process be used to impose burdensome financial demands on local broadcast TV stations for the benefit of a network’s direct-to-consumer subscription streaming service.”

That sentiment appears to be a reversal of the traditional Republican stance on agency rules and Carr’s own, said Benjamin. “Many FCC commissioners, but particularly Republican FCC commissioners, including Brendan Carr, have inveighed against broad readings of FCC authority and reliance on the purpose of FCC statutes,” said Benjamin. Carr, ABC and the FCC didn’t respond to requests for comment.

“There's a simple hypocrisy test here,” said Free Press co-CEO Jessica Gonzalez. “Imagine [FCC Chairwoman] Jessica Rosenworcel or [former FCC Chair] Tom Wheeler or [former FCC Acting Chair] Mignon Clyburn [all are Democrats] doing this ... and try to imagine the invective that [Republicans] Carr and [former FCC Chair Ajit Pai] would spew about interfering in journalistic decisions and private contracts.” Carr, in a 2021 release responding to Democratic lawmakers questioning media outlets on their coverage of the Jan. 6 attack on the U.S. Capitol, said, “[A] newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them.”

The FCC regulates retransmission consent, and it isn’t unusual for the agency to take an interest in those negotiations, several broadcast attorneys told us. The current FCC has held proceedings on blackout reporting and requiring MVPD consumers to be compensated for retrans negotiation-related pauses in MVPD service. “If and when those negotiations break down -- or blackouts ensue -- in the past, the FCC has signaled that it could get involved in the public interest,” said Adonis Hoffman, a former aide to Clyburn when she was serving as a commissioner. All four major network affiliate station groups asked the FCC to rebalance the relationship between networks and affiliates in ex parte filings in 2022 (see 2203170056).

"I applaud your interest to review the effect of outdated #RetransmissionConsent rules and how #broadcasters have abused them," wrote former ACA Connects CEO Matthew Polka in a post aimed at Carr on X. "Remember that local broadcast affiliates extract outrageous retrans fees from cable ops and consumers."

Carr’s letter “sounds more like intimidation and a reaction against one individual company's action than a real effort to improve retrans,” said former Democratic FCC Commissioner Michael Copps. “Whatever lawful interests the FCC may have in ABC’s negotiations with affiliates are somewhat beyond the point of this letter,” said Ari Cohn, Foundation for Individual Rights and Expression lead counsel-tech policy. “Carr’s letter serves, once again, primarily as a vehicle for his complaints about media content he doesn’t like and his threats to use whatever tools he can find lying around at the FCC to go after those responsible for it.”

Carr is “too slick to come out and directly say, ‘You reported critically on Trump; therefore I'm going to revoke your license,’" said Gonzalez. “Instead, he'll meddle in the business and regulatory dealings of broadcast owners who report critically on Donald Trump, breaching all protocol and precedents to hassle them and play partisan politics." Communications attorneys told us that FCC chairs criticizing broadcaster content isn't unheard of, with one pointing to 1960s Chairman Newton Minnow’s famed “vast wasteland” speech castigating them for what he saw as overall poor quality programming. Said Hoffman, “Chairman Carr's message to networks is to work out the agreements in such a way that does not harm the locals.” He added, “That message does not border on threatening to chill speech.”

A Carr-led FCC is likely to have trouble enforcing broad interpretations of FCC rules against broadcast networks because of U.S. Supreme Court decisions against administrative agencies, such as Loper Bright v. Raimondo and SEC v. Jarkesy, several attorneys pointed out. The FCC “can no longer point to a merely permissible construction of a statute to prevail in court,” Carr said in his dissent from the FCC’s Wi-Fi school bus order in July. Said Andrew Schwartzman, senior counselor at the Benton Institute for Broadband & Society, “The good news, such as it is, is that longstanding First Amendment doctrines and recent Supreme Court decisions make it almost impossible for Chairman-designate Carr to effectuate his threats.”

Carr is warning networks that they can’t prop up their nonprofitable streaming services at the expense of local news, said Clay Calvert, a nonresident senior fellow at the American Enterprise Institute. He said the letter merely warns of “heavy-touch” regulation, rather than the “light-touch” often espoused by conservatives, and it isn't overreach because Carr invokes the public interest and localism. The letter serves as an “early warning shot" for the networks, he said. “Why else” would the letter mention ABC’s recent defamation settlement with Trump? Calvert asked. “There’s no other reason to add that.”