FCC Chairman Brendan Carr faced his first congressional grilling over his comments about Jimmy Kimmel on Wednesday, as Democrats claimed that he has operated the agency to go after critics of Donald Trump.
Carr at once claimed that he was not threatening broadcast licenses with the Kimmel comments, but at the same time defended the FCC’s right to wade into broadcast content.
“You are kind of tiptoeing through the tulips here,” said Sen. Brian Schatz (D-HI), as he tried to pin Carr down on his Kimmel comments and his investigations of broadcasters.
In a heated exchange at the Senate Commerce Committee hearing, Sen. Edward Markey (D-MA) called on Carr to resign, citing not just the Kimmel incident but an FCC investigation of a Bay Area radio station that reported on a Trump administration ICE raid.
“He is turning the Federal Communications Commission into the federal censorship commission,” Markey said. “It’s a betrayal of the FCC mission.”
In September, Kimmel said on his late night show, “We had some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and with everything they can to score political points from it.”
Later in the week, Carr, appearing on Benny Johnson’s podcast, called Kimmel’s remark “some of the sickest conduct possible.”
Carr said: “Frankly, when you see stuff like this, I mean, we can do this the easy way, or the hard way. These companies can find ways to change conduct, to take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.”
In the podcast interview, Carr also brought up the possible revocation of licenses. He said that “it’s time that a lot of these licensed broadcasters themselves push back on Comcast and Disney and say, ‘Listen, we’re going to preempt, we’re not going to run Kimmel anymore, and so you straighten this out because we, licensed broadcasters are running into the possibility of fines or license revocation from the FCC if we continue to run content that ends up being a pattern of news distortion.’”
Later that day, the Nexstar station group said that it was pulling Kimmel’s show, and ABC announced that it was putting it on hiatus. Sinclair Broadcast Group also announced that it was sidelining the broadcast. Kimmel returned to the show the following week, but Carr drew criticism from Democrats and a few Republicans that he was “jawboning,” or making regulatory threats in order to elicit voluntary action. Sen. Ted Cruz (R-TX), the chair of the Senate Commerce Committee, even compared Carr’s comments to that of a mob boss.
Throughout the hearing, Carr said that what he was doing was enforcing the FCC’s public interest standard and a news distortion rule. He also repeatedly tried to turn the tables on Democrats, noting that Markey was among those who signed a letter in 2018 calling on the FCC to investigate Sinclair Broadcast Group on the basis of the “news distortion” rule, citing the company’s mandates that local news teams read mandated scripts.
In his opening remarks and questioning, Cruz alluded to his previous criticism of Carr, but tried to turn attention to Democrats, noting that they were “persistently silent” as Joe Biden’s administration pressured social media companies to remove content about Covid and voter fraud.
But Cruz also called into question the contradictions of FCC’s public interest standard and news distortion policy and the First Amendment. There have been some calls on the FCC to better define what the public interest standard is, while a group that includes former FCC chairs has called for the repeal of the news distortion policy.
“Another area of agreement between you and I is that Jimmy Kimmel is angry, overtly partisan and profoundly unfunny,” Cruz said at the hearing. “That sadly is true for most late night comedians today, who seem to have been collectively broken by President Trump’s election. Jimmy Kimmel’s remarks were tasteless, and ABC and its affiliates would have been fully within their rights to fire him or simply to no longer air his program. That was their choice.”
“But what the government cannot do is force private entities to take actions that the government cannot take directly. Government officials threatening adverse consequences for disfavored content is an unconstitutional coercion that chills protected speech.”
“My question is this: So long as there is a public interest standard, shouldn’t it be understood to encompass robust First Amendment protections to ensure that the FCC cannot use it to chill speech?”
Carr said, “Yes, and I agree with you there,” claiming “weaponization” during the Biden years. He cited the Media and Democracy Project challenge of the broadcast license renewal of a Fox affiliate in Philadelphia, over the disclosures that emerged in the Dominion Voting Systems lawsuit against Fox News. While that renewal was delayed as the FCC took public comment, then-FCC chairwoman Jessica Rosenworcel, appointed by Biden, ultimately dismissed the MAD petition.
Carr then went on to make a distinction between broadcast, which the FCC regulates, and cable, where its authority is limited.
“The FCC has to write, within the four corners of our precedents, to be consistent with the Communications Act and the First Amendment concerns as well,” Carr said.
But Democrats raised concerns that Carr was using the threat of FCC action to extract concessions from broadcasters on content or to chill speech, even though courts likely would overturn any fines or other sanctions because of the First Amendment.
Anna Gomez, the sole Democratic commissioner on the FCC, said that the GOP-controlled agency was taking “actions to intimidate government critics, pressure media companies and challenge the boundaries of the First Amendment.”
Sen. Amy Klobuchar (D-MN) asked Carr, “Do you think it is appropriate to use your position to threaten companies that broadcast political satire?”
Carr responded, “I think any licensee that operates on the public airwaves has a responsibility to comply with the public interest standard, and that has been the case for decades.”
Klobuchar pressed further, “I asked if you think it’s appropriate for you to use your position to threaten companies, and this incident with Kimmel wasn’t an isolated event. You launched investigations into every major broadcast network except Fox. Is that correct?”
Carr responded, “I think the FCC has walked away from enforcing the public interest standard and I don’t think that’s OK.”
