As chair of the Federal Communications Commission, Alfred Sikes took the agency’s duty to foster broadcasting in “the public interest” seriously. Sikes, a conservative who was appointed by George H. W. Bush in 1989, engaged in a long-running battle against Howard Stern’s employer, Infinity Broadcasting, levying repeated fines against its stations for violating rules against broadcasting “indecent” material when children were in the audience. (The legal tangle helped convince Stern to move to satellite radio, where he faced no such editorial restrictions.) One thing he never did, however, was seek to revoke licenses for Infinity’s stations.
In a recent interview, Sikes told me that current FCC Chair Brendan Carr’s threats against the late-night host Jimmy Kimmel and TV networks are antithetical to the agency’s founding mission. Carr, he said, seems to be opposed to “too much free speech. In my view, the public interest is for free expression.”
Like his political patron, Donald Trump, Carr is fond of threatening TV networks whose programs displease him. “We can do this the easy way or the hard way,” Carr said on a podcast last week. “These companies can find ways to change conduct and take actions on Kimmel, or there’s going to be additional work for the FCC ahead.” He seemed to be suggesting that the FCC would go after licenses held by ABC’s parent company, Disney, if the network didn’t discipline Kimmel for comments he’d made following the murder of the conservative activist Charlie Kirk. After two of ABC’s major broadcasting affiliates announced that they would be dumping Kimmel, the company caved, suspending him “indefinitely.”
Then, yesterday, ABC reversed itself, announcing that Kimmel would return to the air this evening. One fact that might have given the network courage: It’s highly unlikely that Carr could do what he has threatened to do.
Revoking a broadcasting license is the FCC equivalent of the death penalty. Networks rely on their owned and affiliated stations to beam news and entertainment programs to the entire country. Losing even one link in this chain—especially at a station in a big city such as New York, Los Angeles, and Chicago—would undermine an already-deteriorating business model. But, like the actual death penalty, license revocations are legally complicated, time-consuming, and subject to multiple judicial appeals. (Moreover, broadcast and cable networks, such as ABC and CNN, don’t have licenses; only local stations do.) For these reasons, the FCC almost never tries to take a license away, preferring lesser disciplinary measures such as fines. Carr likes to say that “broadcast licenses are not sacred cows,” but the FCC has tended to treat them as such.
For the FCC to pull a license on the basis that Carr and Trump have suggested—that is, for programs or comments deemed offensive or objectionable—is rarer still. Calls to cancel station licenses over controversial programs have flared ever since the government began regulating radio broadcasts, a century ago. Critics demanded CBS’s license for airing Orson Welles’s sensational radio play, The War of the Worlds, in 1938; for Howard Stern’s bawdy radio bits in the 1990s; and for the Super Bowl telecast of Janet Jackson’s “wardrobe malfunction” in 2004. Those demands led nowhere.
In the second Trump administration, predicting exactly what norms will hold, and what the courts will or won’t allow, is a tricky game. But history strongly suggests that the First Amendment prevents the FCC from becoming America’s programming police. In the nearly century-long history of the agency, only three stations out of thousands have ever lost a license due to something they aired. The first and last time it happened to a TV station (as opposed to radio) was in 1969, when the United Church of Christ, after years of effort, successfully sued the FCC to revoke the license of a Jackson, Mississippi, TV network over its racist business practices.
Sikes, the former FCC chair, was part of a group that in 2023 challenged the license renewal of a Philadelphia TV station owned by Fox Corp. The group argued that the station’s principal owners, Rupert and Lachlan Murdoch, lacked the requisite “character” to hold the license because of Fox News’s promotion of Trump’s repeated lies following the 2020 election. Was this consistent with Sikes’s view that “the public interest is for free expression”? The FCC chair at the time, Jessica Rosenworcel, a Democrat, evidently thought not. She dismissed the petition this past January, saying that it was “fundamentally at odds with the First Amendment.” Carr agreed, and declined to reinstate the Fox-license challenge—but revived previously dismissed complaints against ABC, CBS, and NBC.
Carr, a communications lawyer and former FCC staffer, surely knows how difficult it is to revoke a license. (Neither he nor an FCC representative responded to requests for comment.) He should also realize that his targets—including Disney—know it too. So why issue threats that both sides know aren’t realistic? One answer is that Carr is playing to an audience of one. Muscling media companies dovetails perfectly with Trump’s fulminations about “unfair” TV news coverage and the sanctions the networks should receive for it.
Another answer is that Carr’s license crusade isn’t really about licenses at all. In attempting to coerce Disney into muzzling Kimmel, Carr’s real implied threat was about the regulatory apparatus under his control. The FCC is a choke point for media and communications companies that seek to grow by merger or acquisition. Deals need to be reviewed and approved, and licenses need to be transferred. Carr is in charge of those decisions. This dynamic appeared to explain Paramount Global’s decision to pay Trump $16 million in July to settle a legally dubious lawsuit he’d filed against Paramount-owned CBS News and 60 Minutes. Without that payoff, Paramount knew that its chances of steering its long-delayed merger with Skydance Media through the FCC were nil. In fact, the agency signed off on the Paramount-Skydance merger shortly after Paramount paid off Trump. Disney probably had the FCC’s merger power in mind when it, too, paid Trump $16 million to settle a frivolous defamation claim involving the anchor-host George Stephanopoulos.
The Kimmel fiasco demonstrated that other companies are attuned to Carr’s agenda and power as well. The day after Carr called Kimmel’s program “garbage” and suggested that ABC-affiliated stations “push back” and preempt it, Nexstar and Sinclair—both owners of dozens of ABC stations—obliged. Both said that they would dump Kimmel even if Disney stood by him. As aggressive buyers of broadcast stations, Nexstar and Sinclair have every incentive to remain in Carr’s good graces. Both companies have lobbied the FCC to amend rules that prevent them from buying even more stations. Indeed, Nexstar’s pending $6.2 billion deal to buy a competitor, Tegna, depends on the rule change.
Disney’s decision to reinstate Kimmel suggests that this kind of censoriousness might have its limits. Even some staunch Trump allies, including Senator Ted Cruz, have publicly criticized Carr’s behavior. “It might feel good right now to threaten Jimmy Kimmel, but when it is used to silence every conservative in America, we will regret it,” he said on his podcast, comparing Carr to “a mafioso.” (Yesterday morning, after a week spent taking a victory lap over Kimmel’s cancellation, Carr attempted to backtrack, claiming that he hadn’t actually threatened anyone.)
As of this writing, however, Nexstar and Sinclair say that they will continue to refrain from broadcasting Kimmel’s show on their ABC affiliates. This is not because they are at serious risk of losing their license if they put him back on the air. Fear is one explanation for these companies’ decisions. Greed is a better one.
The post Brendan Carr’s Half-Empty Threat appeared first on The Atlantic.
