• In targeting broadcasters for disrespectful commentary, the FCC’s attempts at jumping the shark–turning a legitimate concern into a spectacle of authoritarian overreach–does not stand the sniff test.
• The attempt to silence dissenting broadcasters wasn’t just heavy-handed, it was a bridge too far, undermining the very principles of free expression.

From the FCC’s website:  https://www.fcc.gov/consumers/guides/fcc-and-speech

The FCC has limited legal authority to act on complaints relating to the content of television or radio programming.

What is the FCC’s responsibility?

The limitations on the FCC’s power to restrict or ban speech begin with the First Amendment to the U.S. Constitution, which decrees that the federal government “shall make no law … abridging the freedom of speech, or of the press.” Accordingly, Congress through Section 326 of the Communications Act, 47 U.S.C. § 326, explicitly declared that nothing in the statute shall be understood or construed to give the Commission the power of censorship over the [broadcast] communications or signals transmitted by any [broadcast] station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of [over-the-air] broadcast communication.

Pursuant to these legal mandates, the FCC has long held that “the public interest is best served by permitting free expression of views.” Rather than suppress speech, communications law and policy seeks to encourage responsive “counter-speech” from others. Following this principle ensures that the most diverse and opposing opinions will be expressed, even though some views or expressions may be highly offensive.

Nevertheless, what power the FCC has to regulate content varies by electronic platform. Over-the-air broadcasts by local TV and radio stations are subject to certain speech restraints, but speech transmitted by cable or satellite TV systems generally is not. The FCC does not regulate online content.

The FCC does impose certain restraints and obligations on broadcasters. Speech regulations are confined to specific topics, which usually have been identified by Congress through legislation or adopted by the FCC through full notice-and-comment rulemaking or adjudicatory proceedings. These topics include:

• indecency,
• obscenity,
• sponsorship identification,
• conduct of on-air contests,
• hoaxes,
• commercial content in children’s TV programming,
• broadcast news distortion,
• accessibility to emergency information on television, and
• inappropriate use of Emergency Alert System warning tones for entertainment or other non-emergency purposes.

Legal Boundaries of FCC Content Oversight

1. First Amendment Protections

• The FCC cannot censor broadcast material or regulate programming based on viewpoint or political content.
• Courts have consistently held that the public interest standard does not override constitutional protections for speech.

2. Section 326 of the Communications Act

• This section states that “nothing in this Act shall be construed to give the Commission the power of censorship” over broadcast communications.
• The FCC is barred by law from trying to prevent the broadcast of any point of view.

3. Permissible Content Regulation

• The FCC may regulate content only in specific, narrowly defined areas, such as those mentioned above.

4. News Distortion Policy https://www.fcc.gov/broadcast-news-distortion

• The FCC can investigate deliberate falsification of news, but not bias, opinion, or editorial slant.
• Enforcement requires documented evidence (e.g., internal memos, outtakes, or whistleblower testimony).

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Recent Controversies and Jurisdictional Concerns

Under Chairman Brendan Carr, the FCC has taken a more aggressive stance on broadcaster conduct, including threats to investigate programming like Jimmy Kimmel Live for alleged bias or distortion. However:

• Legal experts and commentators argue that such actions risk exceeding the FCC’s statutory authority.
• A recent Fifth Circuit Court decision emphasized that the FCC’s “public interest” mandate must be grounded in specific statutory duties, not general notions of better service or fairness.
• The Supreme Court unanimously reaffirmed that government officials may not coerce private entities to suppress disfavored speech. One Justice wrote: ‘Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors’ (Sotomayor). This decision has implications for any FCC actions perceived as pressuring broadcasters over content.

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In Summary:

Old warhorses like us were brought up on the concept of public interest, convenience, and necessity and the philosophy that the FCC does not control programming and what control they do have is over certain limited areas and is conducted through the individual licensees, not the networks and certainly not non-broadcast-licensee entities such as satellite services and cable providers.

We were raised in an era where even the expletive “damn” could cause a hapless announcer to quake in his boots.  That, my friends, is based on personal experience.

While we may strongly agree with the sentiments of the conservative side of the political spectrum and we are not necessarily fans of Kimmel, Olbermann and Colbert, but we are also staunch defenders of the free speech protections that are granted to broadcasters. 

In our opinion, while the FCC can and should enforce certain content-related rules, it cannot and should not regulate programming choices, political viewpoints, or editorial decisions unless there is a clear statutory basis and evidence of deliberate misconduct. Attempts to expand this authority—especially under the guise of the public interest—are likely to and should face constitutional challenges and judicial pushbacks.

We believe the FCC as it is being guided by the current Commissioner is going too far.  When Mr. Carr says:  “…we can do this the easy way or the hard way…” that just sounds so much like a bad line from some cop thriller and certainly has a chilling effect on constitutionally protected free speech.

That’s our opinion…for what it’s worth.

That’s 30 for now and thanks for your consideration.