The FCC's 'Public Interest' Standard Has Become a Loyalty Test
Brendan Carr said the quiet part out loud, then said it again. After ABC reinstated Jimmy Kimmel this fall, the FCC chairman promised "we're not done yet." He told an interviewer to expect "a massive shift in dynamics in the media ecosystem," one that would proceed under what he called the "permission structure that President Trump's election has provided." Read that phrase twice. A federal regulator describing an election as a permission slip to reshape what broadcasters may say.
The FCC did not invent its authority over broadcast content out of nothing, and it is worth remembering the bargain Congress actually struck in 1934. Spectrum is scarce and licensed by the public; in exchange, broadcasters operate "in the public interest, convenience, and necessity." But the same Communications Act, in Section 326, forbids the Commission from imposing "any regulation or condition" that interferes with the right of free speech over the air. The FCC's own published policy on news distortion narrows the exception further still: a complaint must involve "a significant event," and there is, in the agency's own words, "a crucial distinction between deliberate distortion and mere inaccuracy or difference of opinion." Congress built a leash. It was meant to be short.
The steelman here deserves its full weight, because it is not a fringe argument. Broadcasters use a public resource that has no substitute; a handful of owners can crowd out the plurality of ideas that resource was supposed to guarantee. In a media landscape narrowing through consolidation, a regulator with teeth is the difference between oversight and a shrug. The public interest standard exists precisely because "the market will sort it out" has not always sorted it out, and the FCC's defenders are right that a toothless mandate is not a mandate at all. If the choice were between an active FCC and no FCC, I would not be writing this column.
That is not the choice on offer. The chairman's own language gives away which direction the teeth are pointed. "Broadcast licenses are not sacred cows," Carr posted early in his term. "These media companies are required by law to operate in the public interest. If they don't, they are going to be held accountable." No precise legal definition of "public interest" exists, which means the discretion collapses into the judgment of one appointee. That is not a safeguard against distortion. That is a lever, and the hand on it changes with the election.
Watch where the lever has actually been pulled. Carr's pressure on ABC/Disney over a single Kimmel monologue line preceded an unprecedented early review of ABC's station licenses — a review with no obvious statutory trigger beyond the chairman's displeasure. In late January the Commission issued a public notice reminding stations that the interview portions of daytime and late-night programs — The View, Saturday Night Live, Kimmel's own show among them — may not be exempt from the equal opportunities rule after all, and encouraging broadcasters to "obtain formal assurance" that they qualify. Harold Field of Public Knowledge called the process "a tool for harassment and intimidation." Seth Stern of the Freedom of the Press Foundation put the mechanism plainly: broadcasters facing that kind of uncertainty start rethinking which perspectives to air before any complaint is ever filed. I have no brief for the Kimmel monologue itself, which by most accounts was not exactly Swiftian; that has nothing to do with whether a regulator should be able to punish it.
The legal scaffolding here is thinner than Carr's confidence suggests. Government content regulation ordinarily faces strict scrutiny — a compelling interest, pursued by the least restrictive means available — and the Supreme Court has struck down plenty of media rules on exactly that ground. Section 326's promise not to "interfere with the right of free speech" reads, on its face, like a flat prohibition on exactly what the FCC is now doing. The Court's own Pacifica precedent narrowed that promise to bar only prior restraints, leaving room for the kind of after-the-fact license review and equal-time notice the Commission is currently deploying. Carr is not breaking new legal ground so much as walking into a gap the Court left open decades ago and never expected anyone to use this way.
Put it on the books, then, rather than argue past each other about intent. Either "public interest" means something a court can define and a broadcaster can rely on before it speaks, or it means whatever the sitting chairman says it means after the fact — in which case it is not a standard, it is a mood. A regulatory power that changes content depending on who won the last election is not oversight. It is licensure by loyalty, and the loyalty runs to whoever holds the chair.
Nobody suspends a network by fiat in this version of the story. A station simply starts asking, before it books a guest, whether the interview is worth the letter that might follow — and that letter never has to arrive to do its work.