As American Enterprise Institute Nonresident Senior Fellow Mark Jamison noted in an opinion piece penned in April, “[f]or decades, well-functioning independent regulatory agencies have been a stabilizing force.”
Though primarily addressing the Federal Trade Commission following President Donald Trump’s firing of two Democratic commissioners, Jamison highlighted four “core principles of stability, predictability, legitimacy, and credibility” for the FTC’s success that also could apply to another independent agency, the FCC.
Unfortunately, as Clay Calvert writes in this follow-up column, “the predictability that exists at the FCC under Republican Chairman Brendan Carr’s leadership is that most Democrats (and some Republicans) will view many of its prominent investigations as blatantly partisan efforts to aid Trump and attack press freedom. This perception erodes the FCC’s legitimacy and credibility.”
The FCC’s reinstatement of investigations into “news distortion” on programs produced by television networks CBS, ABC, and NBC; a news story pertaining to ICE agents and their precise location airing on Audacy’s KCBS Radio in San Francisco; and underwriting announcement probes of NPR and PBS are among these actions seen as highly partisan by detractors of the White House and Republican leadership in Washington.
Furthermore, Calvert says, “By investigating the diversity, equity, and inclusion (DEI) policies at Comcast/NBCUniversal and Disney/ABC in the name of stopping ‘invidious forms of DEI discrimination,’ Carr is expanding the FCC’s enforcement mission into a realm already policed by multiple federal entities that uphold anti-discrimination laws.” They include the Federal Bureau of Investigation, the Equal Employment Opportunity Commission, and the Justice Department’s Civil Rights Division, Calvert notes, as he quotes soon-to-depart Democratic FCC Commissioner Geoffrey Starks as saying, “From what I know, this enforcement action is out of our lane and out of our reach” in response to the Carr Commission’s investigation into Comcast/NBCUniversal’s DEI policies and practices.
Calvert writes that Carr’s letter to Comcast/NBCUniversal explains that he’s merely following in Trump’s footsteps: “Trump took quick and decisive action to root out the scourge of DEI” by signing an executive order on January 20. “As Trump goes, so goes Carr,” Calvert concludes. “In short, the FCC’s mission creep panders to the president, eroding the Commission’s stability because it’s hard to predict the regulatory direction in which it will head next, other than a pro-Trump one.”
“In short, the FCC’s mission creep panders to the president, eroding the Commission’s stability because it’s hard to predict the regulatory direction in which it will head next, other than a pro-Trump one.”
It was Carr’s prerogative to end the FCC’s promotion of its own DEI initiatives, which he did on January 21, Calvert writes. Now, he continues, Carr is spending the Commission’s resources examining “Comcast’s and NBCUniversal’s DEI initiatives, preferences, mandates, policies, programs, and activities.” Carr’s legal hook is that “the Communications Act and Commission rules prohibit regulated entities . . . from discriminating on the basis of race, color, religion, national origin, age, or gender,” thus tethering DEI efforts to illegality.
For Calvert, “Carr is leveraging his role as Trump’s anti-DEI enforcer in the media realm by threatening to block mergers.” Calvert notes that Carr stated in March that “[a]ny businesses that are looking for FCC approval, I would encourage them to get busy ending any sort of their invidious forms of DEI discrimination.”
Calvert also takes aim at Carr’s choice of phraseology when discussing his predecessor’s leadership at the FCC. He says, “When Carr now writes about the FCC under Jessica Rosenworcel, he repeatedly brands it ‘the Biden FCC.’ He focuses on its ‘weaponization’ against conservative-affiliated businesses such as Elon Musk’s Starlink, a satellite-constellation internet service. Carr calls it ‘political retribution plain and simple.’”
Thus, Calvert says, “The U.S. Supreme Court once wrote that ‘one man’s vulgarity is another’s lyric.’ With the FCC today, one might say that one man’s political payback is another’s fair play … When Trump elevated Carr as chair, Carr said he looked ‘forward to collaborating with the Trump Administration.’ Carr is taking collaboration to a hand-in-glove level that’s eroding the credibility of — in Carr-like parlance — “the Trump FCC” while shredding any semblance of independence.
Clay Calvert is a nonresident senior fellow in technology policy studies at the American Enterprise Institute. He is also a professor of law emeritus at the Levin College of Law and Brechner Eminent Scholar Emeritus at the College of Journalism and Communications, both at the University of Florida.
Considered one of the foremost experts on First Amendment law, Dr. Calvert is often a source in writings about the First Amendment and freedom of expression.
