When President Donald Trump appointed Brendan Carr to lead the Federal Communications Commission, he called Carr a “warrior for free speech.”
But it’s not free speech, but censorship — or lack thereof — that has thrust the FCC into the spotlight in recent weeks.
First came the Super Bowl halftime show: Florida Rep. Randy Fine and others have called on the FCC to punish NBC and Bad Bunny for a performance they said violated standards of decency. After an initial review, the FCC declined to do so.
Then came late-night host Stephen Colbert’s claim that the FCC strong-armed CBS into canceling a segment with Texas politician James Talarico, who is running against Jasmine Crockett to be the Democratic nominee for a U.S. Senate seat.
Although CBS and the FCC denied censorship took place, that’s the storyline that took off. A headline in The Atlantic, for example, read “Censorship comes for Stephen Colbert,” and social media was rife with outrage.
It turned out the story was much more nuanced than that, and the headlines began to change. “The FCC (probably) didn’t censor Stephen Colbert,” said a Vox article published Wednesday.
The same day, CNN media analyst Brian Stelter suggested the FCC isn’t as powerful as it might seem. Referring to reports that the FCC is investigating the ABC talk show “The View,” which had Talarico as a guest earlier this month, Stelter wrote, “The FCC’s enforcement powers are limited. At most, ABC might have to pay a fine, and ABC’s parent company Disney can certainly afford it.”
Indeed, the most famous FCC action in recent years, a response to Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show — resulted in a $550,000 fine that was eventually thrown out in court.
So should anyone be afraid of the FCC? And does the agency play any role at all in getting broadcasters to conform to standards of decency, given that Americans don’t agree on what constitutes indecency? (Consider last year’s Academy Award for Best Picture, which went to a sexually explicit film rife with profanity.)
Like the Colbert story, which some saw as evidence of authoritarianism and others saw as a hoax, the truth can’t be contained in a sound bite.
Why Colbert wasn’t ‘censored’
The Colbert story erupted after the host said during his Monday show that “we were told in no uncertain terms by our network’s lawyers, who called us directly, that we could not have (Talarico) on the broadcast.”
“Let’s just call this what it is: Donald Trump’s administration wants to silence anyone who says anything bad about Trump on TV because all Trump does is watch TV,” Colbert said.
CBS disputed Colbert’s account, putting out a statement that said, “The show was provided legal guidance that the broadcast could trigger the FCC equal-time rule for two other candidates, including Rep. Jasmine Crockett, and presented options for how the equal time for other candidates could be fulfilled.”
Colbert responded to that statement by tearing it up on the air, and the 15-minute Talarico segment aired on The Late Show’s YouTube channel, where it had more than 7 million views.
The Talarico campaign said it had received $2.5 million in contributions after the segment aired on YouTube. The 36-year-old seminarian also benefited from the national exposure he got after his Feb. 2 appearance on “The View” triggered FCC scrutiny. He has embraced the controversy, posting the video on X with the caption “the interview Donald Trump didn’t want you to see.”
At issue is whether the two shows, in platforming Talarico (who is considered a credible threat to the GOP’s prospects of keeping the Senate seat in November) violated the “equal time” rule that prevents news broadcasts from favoring one political candidate over another. (The equal-time rule is why there will be a Democratic response to Trump’s State of the Union address next week; Virginia Gov. Abigail Spanberger will counter Trump’s speech.)
The rule stems from the Communications Act of 1934, which said in Section 315 that if a radio or TV station gives airtime to a political candidate, it must also give time to other candidates in the race, if they request it.
But there’s a catch: if the broadcast is considered “bona fide” news, an exception can be made. At issue is what is “bona fide” news programming.
When is the ‘equal-time rule’ enforced?
The equal-time rule is so rarely enforced that few can name the last time it came up. Fox News host Laura Ingraham, in conversation with the FCC chairman on Wednesday, said she couldn’t remember, and asked Carr, who said, “It’s been a while” and moved on.
Blair Levin, a former FCC chief of staff in the ‘90s, said in an interview with the Deseret News that he couldn’t recall any enforcement of the rule in more than three decades, and that enforcement is not triggered by a politician’s appearance but by an opposing candidate asking for air time and being refused.
“I just don’t think broadcast folks are going to say no. They just don’t do that,” Levin said.
But with Carr at the helm, the FCC has signaled that it will be paying closer attention. Last fall, after Jimmy Kimmel’s suspension, Carr told Sean Hannity that over the years, the agency had “walked away” from its duty to ensure that licensed stations operate in the public interest.
“I don’t think we’re better off as a country for it,” he said, adding, “Late-night shows, something’s gone seriously awry there. They went from going for applause, from laugh lines to applause lines. They went from being court jesters that would make fun of everybody in power to being court clerics and enforcing a very narrow political ideology.”
In January, the FCC released four pages of guidance on the history and purpose of the equal-time rule.
The guidance says, in part:
“The federal equal opportunities regulations operate to prevent broadcast television stations, which have been given access to a valuable public resource (namely, spectrum), from unfairly putting their thumbs on the scale for one political candidate or set of candidates over another. These regulations, which do not apply to cable channels or other forms of distribution, represent, in codified form, the decision by Congress that broadcast television stations have an obligation to operate in the public interest — not in any narrow partisan, political interest.”
The guidance went on to note that in 2006, an interview on “The Tonight Show With Jay Leno” had been determined to qualify as an exception, and that going forward, the industry had taken the “staff-level decision” to apply to other talk shows.
“That is not the case,” the guidance said. “As noted above, these decisions are fact specific and the exemptions are limited to the program that was the subject of the request. Importantly, the FCC has not been presented with any evidence that the interview portion of any late night or daytime television talk show program on air presently would qualify for the bona fide news exemption. Moreover, a program that is motivated by partisan purposes, for example, would not be entitled to an exemption under long-standing FCC precedent.”
It was a memo that, in retrospect, seemed to invite a challenge like the one that Colbert and Talarico provided.
The FCC under Brendan Carr
Reporting on Carr’s appointment as chair in 2024, NPR said both allies and adversaries described Carr as “smart, personable and highly qualified.”
To that, Levin adds the term “politically savvy” and says that Carr has been more political than his predecessors have been.
The FCC did not respond to repeated requests from the Deseret News for interviews, but Carr has gone on conservative talk shows and Fox News. Appearing Wednesday on “The Ingraham Angle” on Fox News, he echoed Trump’s “fake news” mantra and agreed with host Laura Ingraham that the Colbert story had turned into a “full-blown authoritarian fever dream.”
“It’s why people have more trust and faith in gas-station sushi today than they do in the legacy news media,” Carr said on “The Ingraham Angle.”
“CBS was very clear that Colbert could run the interview with that candidate if he wanted, but said you may have to comply with equal-time, which would have meant giving air time to Jasmine Crockett and another candidate. But instead of doing that, they claimed they were victims. This was all about a political candidate trying to get attention and clicks,” he said.
Carr told radio host and podcaster Glenn Beck that Colbert had engineered a “hoax” and that he knew nothing about what had happened until he saw it trending on social media Tuesday morning.
Is the FCC a paper tiger?
The recent controversies have renewed discussion about whether the FCC needs to exist at all, given that its power is concentrated on a relatively small swath of media in the age of social media and podcasts. Last fall, essays in both National Review and Reason magazine called for the agency to be abolished.
It is operating right now with just three members on what is supposed to be a five-person board, with no apparent plans for the two vacancies to be filled, and Levin said he would be surprised if any other commissioners were nominated during Trump’s term. “The president is getting 100% of what he wants from Brendan Carr. Why would he use any political capital to put two other people on the commission?” Levin said, noting that new commissioners have to be confirmed by the Senate.
The commissioners serving with Carr are Anna M. Gomez, nominated by Joe Biden, and Olivia Trusty, nominated by Trump. Gomez has issued statements critical of any investigation of “The View” and calling the pressure on Colbert “censorship.”
“Let’s be clear on what this is. This is government intimidation, not a legitimate investigation. Like many other so-called ‘investigations’ before it, the FCC will announce an investigation but never carry one out, reach a conclusion, or take any meaningful action,” Gomez said in her statement on “The View” investigation.
In her statement on Colbert, she said, “The FCC is powerless to impose restrictions on protected speech, and any attempt to intimidate broadcasters into self-censorship undermines both press freedom and public trust.”
Similarly, Bob Corn-Revere, an attorney specializing in the First Amendment and chief counsel at the Foundation for Individual Rights and Expression, accused Carr of “naked partisanship” in a statement and told the Deseret News that Carr is behaving like a “mafia don.”
“Nothing about what Brendan Carr is doing is normal,” Corn-Revere said.
“Ever since 1959, the FCC has expanded what the exceptions covered because it wants to err on the side of free speech. This is the first time, since 1959, that the FCC has backtracked and narrowed the exemptions,” Corn-Revere said.
“It has applied exemptions on the radio to shows like the Howard Stern Show — even if it is not a ‘news’ show, if you are in an interview format, it’s been treated as exempt,” he added.
In its guidance issued in January, however, the FCC stressed that exemptions are just that: exemptions granted on an individual basis, not industrywide.
“Consistent with the legislative history of section 315, the Commission considers the following factors in determining whether a program qualifies as a bona fide news interview program: (1) whether the program is regularly scheduled; (2) whether the broadcaster or an independent producer controls the program; and (3) whether decisions on the content, participants, and format are based on newsworthiness, rather than partisan purposes, such as an intention to advance or harm an individual’s candidacy.”
The regulations exist, the guidance says, “to prevent broadcast television stations, which have been given access to a valuable public resource (namely, spectrum), from unfairly putting their thumbs on the scale for one political candidate or set of candidates over another.”
But Levin said that under existing regulations, “Late Night With Stephen Colbert” is a bona fide news source, and therefore eligible for exemption.
He added: “Carr is, in legal parlance, de jure correct that he did not engage in any censorship: that is to say, he did not tell them ‘don’t run that segment.’ But what Carr has done is create an atmosphere of fear among broadcasters in an attempt to have more Trump-friendly content, whether it be in news or late-night television or otherwise.”
Some, of course, would argue that making such content more “Trump friendly” is simply making broadcasters play fair. Conservatives have long argued that news networks have suppressed their views and values. And Levin acknowledged that “Trump friendly” to him means “fair” to Carr.
“Where we would disagree is whether that’s the role of an FCC chair, to make the broadcast media more friendly towards his political party,” Levin said. He is also concerned about the real power the chairman has to strong-arm the companies that have to come before the FCC for various approvals, as in mergers.
“When there is a merger pending, the FCC chair has almost unbridled powers to hold up the merger. He can hold it up forever; the courts can’t force him to rule, there’s no clock, and he can say no, and he can do it in a way that makes it very hard for the courts to overturn,” Levin said.
Both Levin and Corn-Revere mentioned last year’s effort by former FCC officials of both parties to rein in Carr’s embrace of the “news distortion policy” that allows the FCC to take action if “it can be proven that (broadcasters) have deliberately distorted a factual news report.” The former officials petitioned the FCC to repeal the policy, saying, “Even if the FCC never tries to take enforcement action in these cases, the specter of government interference alone chills broadcasters’ speech and suppresses their message.”
Levin called Carr’s response on social media “disrespectful” and added, “I would never say he’s not smart; I would never say he’s not skilled. I would say his priorities do not appear to be assuring that America has the communications infrastructure it needs in this century. That’s just not where he’s putting his time.”
He added, “In the week in which we’ve been celebrating the 30th anniversary of the (Telecommunications) Act, I’ve been on a number of panels, and people have asked me, what are you nostalgic about? Here’s what I’m nostalgic about:
“There were a lot of Republicans who criticized what we did, but they were serious people. They did not criticize us with a tweet — there was no such thing. They didn’t criticize us with a sick burn, a sound bite. They criticized us with like 20 pages of a briefing or economic analysis or whatever. That’s a political process that is much better for the country, and for industry as well,” he said.
Meanwhile, Carr on Friday issued a statement asking broadcasters to offer “patriotic, pro-America content” as the nation’s 250th anniversary approaches.
Among his suggestions: that networks run PSAs and specials promoting civic education and American history, and that they broadcast “The Star-Spangled Banner” or Pledge of Allegiance at the start of the broadcast day and air music by American composers such as John Philip Sousa, Aaron Copland, Duke Ellington and George Gershwin.