FCC’s Gomez Critical of Dismissal of Petition to Repeal News Distortion Policy
Federal Communications Commission commissioner Anna M. Gomez is criticizing a summary dismissal of a Petition for Special Relief with the Commission seeking a repeal of the Commission’s news distortion policy filed last fall by a bipartisan group of former 
FCC officials. Gomez filed a petition for mandamus with the United States Court of Appeals for the District of Columbia seeking to compel action by the FCC on such petition. Instead, of responding to the mandamus petition, on June 22 the Commission filed its response and included a copy of an unpublished letter dismissing the News Distortion Petition that was signed by the Acting Chief of the Media Bureau on delegated authority.
Gomez writes, “The Commission has increasingly used its regulatory authority as a cudgel against broadcasters whose coverage it dislikes rather than as a neutral enforcement tool, and license renewals and merger approvals have been treated as leverage over editorial judgment rather than as the objective processes the Communications Act requires them to be. This is not an isolated tactic, and the Commission has repeatedly reached for rarely used or long dormant authority to discipline broadcasters it views as critical, including reviving a license renewal mechanism that had not been invoked in over half a century apparently to target a single company’s news coverage. This includes repeated reliance on the previously rarely invoked news distortion policy at issue here. That pressure has had a real effect, and station groups and local broadcasters across the country have asked my office what topics are now considered too risky to cover, a question that should never need to be asked in a country with a First Amendment. When a federal agency with the power to grant or revoke broadcast licenses starts weighing in on editorial content, the chilling effect reaches far beyond any single station or story, and it is compounded here by the Commission’s choice to resolve this particular petition through an unpublished staff letter rather than a public vote of the full Commission.
“The Commission regularly uses delegated authority to get the work of the Commission done, issuing licenses, seeking comment, granting rule waivers, etc. These are instances where the bureaus and offices of the agency take actions consistent with established Commission precedent. Delegated authority allows the Commission to operate efficiently.
“Delegated authority, however, can be abused to shield significant actions from judicial review as only final Commission actions can be appealed. That is what appears to be happening in this instance and the consequences for our democracy are serious. The Commission has repeatedly used the Media Bureau to take actions that are inconsistent with longstanding Commission precedent that violate both the Communications Act and the First Amendment.
“I am cognizant that my dissent on the substance will not change the outcome of the News Distortion Petition by the Commission. Not providing the Commissioners with an opportunity to vote on this important petition, however, shields the Commission’s actions from critical judicial review. Accordingly, I stand ready to vote on an order addressing the issues raised in the News Distortion Petition to facilitate the timely advancement of this matter to a final appealable order that will allow the appellate review process to move forward without unnecessary delay.”
made clear, broadcasters are different than every other distributor of media. Specifically, broadcasters are required by both the Communications Act and the terms of their FCC-issued licenses to operate in the public interest. This sets them apart from cable channels, podcasts, streaming services, social media, and countless other types of distributors that have no public interest obligation. The FCC’s broadcast hoax rule, its news distortion policy, its political equal opportunity regulation, its prohibition on obscene, indecent, and profane content, its localism requirements — all of those and more apply uniquely to broadcasters. Congress has instructed the FCC to enforce public interest requirements on broadcasters. The FCC should do exactly that.” Carr added, “To ensure that broadcasters can meet their public interest obligations, the FCC has taken a number of actions, including seeking public comment for the first time in more than 15 years on the relationship between the large, national programmers on the one hand and the many local broadcast television stations on the other. Comments in that proceeding suggest that many local broadcasters are concerned that the national programmers have amassed enormous power and influence in recent years and have made it more challenging for local broadcasters to fulfill their public interest obligations. The FCC is going to continue its efforts to empower local broadcasters to meet their public interest obligations.”
working to empower local broadcasters to serve the public interest and meet the needs of their communities. As Congress, the Supreme Court, and the FCC have all made clear, broadcasters are different than every other distributor of media. Specifically, broadcasters are required by both the Communications Act and the terms of their FCC-issued licenses to operate in the public interest. This sets them apart from cable channels, podcasts, streaming services, social media, and countless other types of distributors that have no public interest obligation. The FCC’s broadcast hoax rule, its news distortion policy, its political equal opportunity regulation, its prohibition on obscene, indecent, and profane content, its localism requirements – all of those and more apply uniquely to broadcasters. Congress has instructed the FCC to enforce public interest requirements on broadcasters. The FCC should do exactly that.
Amendment protects journalistic choices from government intimidation. Nevertheless, this FCC has deployed a vague and ineffective News Distortion policy as a weapon to stretch its licensing authority and pressure newsrooms. The First Amendment is a pillar of our democracy. As federal regulators, we must respect the rule of law, uphold the Constitution, and ensure that a free press is never subjected to regulatory interference by the FCC.” The FCC’s News Distortion Policy was created in 1949 and has been criticized from time to time over the years. It has rarely been invoked until now. A Petition for Special Relief before the FCC signed by 11 people, including former FCC Chairman Thomas E. Wheeler, asks that the Commission repeal the news distortion policy. They cite case law, saying, “In Moody v. NetChoice, LLC, the Supreme Court, applying the First Amendment, reaffirmed that the government has no role in ‘un-biasing’ the media. In direct contradiction to that decision, the news distortion policy seeks to mold the speech of private broadcasters to the FCC’s own view of what is correct, complete, and accurate news. The First Amendment forbids the government from embarking on such a project.”