Brendan Carr’s FCC Rewrites Media Ownership Law Only Congress Can Actually Change

from the what-third-branch? dept

There are many ways to describe the Trump Era, but the executive branch’s conviction that it can simply ignore the legislative branch’s entire existence has become something close to a governing principle. From impounding funds designated by Congress to launching a war without Congress’s authority, Trump has basically decided that the legislative branch is a vestigial organ of the federal government.

This latest one may seem smaller than those stories, but it’s another demonstration of how little the executive branch thinks the laws Congress wrote actually matter. Specifically in this case, the FCC has voted to scrap the congressionally-mandated limits on broadcast TV ownership. This, despite a long list of people who’d normally be on Carr’s side — Republican members of Congress, the former FCC commissioner who helped negotiate the cap in the first place, the House Majority Leader who cut the final deal — all saying the FCC can’t do this. Even Ted Cruz says he’s skeptical.

But Carr has done it anyway.

And while I’m sure the usual coterie of MAGA Trump defenders will insist this is all fine, it’s obviously an end-run around Congress’s authority. Congress set that number itself, writing directly into statute that no single company may own stations reaching more than 39% of American households. It was in a 2004 appropriations bill that raised this limit from the previous 35% to 39%.

That’s Congress clearly putting into law that the FCC must have a cap of 39% reach for TV ownership.

But Brendan Carr says he can change this because it’s “outdated.” Here’s how Carr previewed the vote last month in an oped for Breitbart:

On August 6, the FCC will vote on eliminating the outdated national cap in favor of a new case-by-case approach. Previously, the cap operated as a blanket prohibition on any and all deals that would combine stations in excess of the 39 percent limit—regardless of whether it was a good deal or a bad one for the country. Our new proposal would allow the FCC to approve deals that exceed the 39 percent cap, but only if doing so would promote the public interest.

Even if you agree with Carr that the 39% ownership cap is “outdated” and that it’s not in the public interest, that’s not Carr’s decision to make.

He is saying, out loud, that the FCC can ignore an act of Congress whenever the FCC decides that act has gotten stale — with the FCC, conveniently, being the sole judge of staleness.

Of course, all this comes right after Nexstar and Tegna — two giant, reliably GOP-friendly broadcast companies — merged into something massively exceeding that 39% cap (thanks to Carr’s support). You know full well (as does Carr) that if the two companies merging here were the kind he likes to call “leftist” or “woke,” there is no chance he’d wave them past the 39% cap. He’d suddenly put on his attempt at a solemn face and talk about how unfair it would be to the public interest of America to let one company control that much broadcast spectrum.

The lone remaining Democrat on the Commission, Anna Gomez (who Trump likely hasn’t fired yet only because the FCC needs a quorum to do anything at all), has pointed out that this is all quite obviously unlawful.

Today’s decision to eliminate the 39 percent national audience reach cap is unlawful on its face and a profound departure from both statutory boundaries and longstanding broadcast policy. Congress set this cap in federal law, and only Congress can change it. I cannot support an action that so plainly exceeds the Commission’s authority while simultaneously overlooking the real-world consequences for the public we serve.

She goes into further detail about how the wording in the Telecommunications Act is pretty clear that the FCC can’t just ignore this cap or change it without congressional approval. And cites a bunch of Republicans including former FCC officials, along with both current and former elected officials in Congress:

Further, knowledgeable republicans with direct experience shaping, and later interpreting, the national audience reach cap agree that today’s action is plainly foreclosed by law. Former FCC Commissioner Mike O’Rielly, who was personally involved in the negotiations that produced the 39 percent cap, has stated unequivocally that the Commission ‘does not have the authority to modify the national audience reach cap,’ explaining that Congress expressly codified the cap in statute, removed it from the Commission’s periodic ownership review, and never revisited that limitation. Former House Majority Leader Tom DeLay, who negotiated the final compromise with Senator Ted Stevens, has likewise emphasized that the 39 percent cap was deliberately enacted to prevent FCC revision absent a future act of Congress, underscoring that ‘regulatory agencies cannot defy or modify laws enacted by Congress’ and reaffirming that the cap is ‘a statute, not a suggestion.’ And while Senator Ted Cruz did not serve in Congress during those negotiations, his present role as Chair of the Senate Commerce Committee gives him direct oversight over this very issue. He has made clear that he is ‘skeptical a change can be made absent an act of Congress,’ signaling that Congress’s intent remains unchanged today. Taken together, these perspectives from the architects of the cap, the regulators who implemented it, and the congressional leaders who now oversee it underscore a bipartisan, durable, and deeply informed consensus that the law prohibits the Commission from eliminating the national audience reach cap. No amount of policy preference can substitute for statutory authority

Gomez also points out that if Carr were actually concerned about the public interest in these deals, the FCC sure has a funny way of showing it. For all of Carr’s talk about weighing the public interest deal by deal, his Media Bureau has refused, every single time, to look at what these mergers actually do to the public — specifically, what they do to the retransmission fees that show up on your cable bill:

What is notable about such reviews is the studied avoidance thus far of addressing the impact of the transaction at issue on retransmission consent fees on the merits every single time it is raised. The Media Bureau routinely summarily dismisses such issues as outside the scope of what it should be considering. For example, in the Nexstar Tegna decision, despite evidence that the transaction would result in millions of dollars in increased fees on consumers, the Media Bureau determined that it was inappropriate to consider the issue in that “case-by-case” review because “allegations regarding retransmission consent do not raise a substantial and material question of fact as to whether grant of the Applications would serve the public interest” and such questions should be considered in a rulemaking proceeding. Clearly the Commission does not want to address the challenging questions retransmission consent raises, but passing the buck to another proceeding when the impact is significant, direct, and current can only go so far without becoming the very essence of arbitrary and capricious. The Commission has crossed that line here. This is indefensible.

It’s almost certain that a lawsuit will be filed challenging this unilateral move by the FCC to simply rewrite congressional law. But either way, this shows (yet again) how the current administration sees Congress’s role as entirely ceremonial. At least when a Republican is president. The second that a Democrat is back in the White House you can absolutely guarantee that partisan dipshits like Carr will suddenly rediscover the need for Congress to set all the rules.

After all, when Biden was in office, Carr was one of the most vocal in pointing out that Congress limits the FCC’s authority and you can’t just ignore Congress. Here he is complaining about the FCC pretending it has “freewheeling authority” to ignore Congress:

Today’s NPRM appears to me to be part and parcel of that broader effort, which I cannot support. It relies on Section 616(a) of the Communications Act, which lists six very specific things the FCC can regulate in MVPD carriage agreements. That list provides a good clue of how Congress intended to circumscribe our statutory authority. But the NPRM asserts that we may go beyond that list and exercise freewheeling authority over private carriage agreements. I am dubious.

Huh. How odd. In that same dissent he says that the FCC must wait for Congress to act:

Unless and until Congress decides to delegate additional authority to the FCC over OTT streaming, we should act with the appropriate dose of regulatory humility.

What happened to that regulatory humility, Brendan?

Or how about his concerns about Congress when he dissented from the Biden FCC’s attempt to deal with digital discrimination? Back then, he was super duper concerned that Congress had not approved this.

Needless to say, Congress never contemplated the sweeping regulatory regime that President Biden asked the FCC to adopt—let alone authorized the agency to implement it. Nonetheless, the FCC is voting to put President Biden’s plan in place. I oppose the plan for several reasons.

In that dissent, he’s clear about not going beyond congressional authority:

Of course, Congress did not give the FCC the power to do any of this—the agency just creates it out of whole cloth.

But now that Trump is in charge, Carr is happy to erase a rule Congress wrote and to replace it with his own judgment.

Oh, and when the Biden administration’s FCC tried to bring back net neutrality? You sure know that Brendan Carr was furious that they would ignore the will of Congress. Indeed, he used that to whine about Chevron deference, allowing agencies like the FCC to ignore the will of Congress. But, of course, the Supreme Court got rid of Chevron deference in Loper Bright, a decision Carr celebrated. But before that, in dissenting from the FCC’s moves on net neutrality he went on an extended rant about how the FCC should require explicit consent from Congress:

Congress never passed a law saying that the Internet should be heavily regulated like a utility, nor did it pass one giving the FCC authority to make that monumental determination. The Executive Branch pressured the agency into claiming a power that remained—and remains—with the Legislative Branch.

Gosh. It’s almost as if Brendan Carr thinks that when Democrats are in power, the FCC should be limited in what it can do by Congress, and when Republicans are in power, Congress is entirely there for show.

For the past decade, the central project of the conservative legal movement has been convincing courts that federal agencies constantly grab powers Congress never handed them. That’s what West Virginia v. EPA was about. That’s what Loper Bright was about. The entire premise of the major questions doctrine is that when an agency makes a decision of real economic and political significance, it had better be able to point to clear authorization from Congress.

Carr cannot point to clear authorization from Congress on this. He can point to the precise opposite: a specific number, written into a specific statute, after a specific fight, for the specific purpose of taking this decision away from the FCC. He isn’t stretching an ambiguous grant of authority. There’s nothing here to stretch. He’s crossing out a figure Congress chose and penciling in “whatever I think is good for the country.”

And he’s replaced it with a process where he is the judge. Deals get approved if they “promote the public interest,” with Carr deciding what that means, deal by deal, with no cap, no standard, and (as Gomez points out) a Media Bureau that refuses to look at the one concrete public harm anyone actually raises.

Remember when Carr set up his “delete, delete, delete docket” in which he promised to delete unnecessary “regulatory underbrush”? This is the opposite. It’s the FCC chair converting a bright-line rule Congress wrote into a regulatory permission slip he personally issues. Companies that want to get very large now have an obvious incentive to make sure Carr is happy with them, which is presumably the feature rather than the bug. 2023 Brendan Carr would be livid.

Maybe 39% is the wrong number in 2026. That’s an argument someone could make honestly. There’s even a body specifically designed to hear it, weigh it, and write a new number into law if it’s persuaded. It meets a few blocks from the FCC. Carr, with Trump in the White House, would rather pretend it isn’t there.

Filed Under: anna gomez, brendan carr, congress, fcc, media ownership