Brendan Carr to Become Next FCC Chair – What is Next for Regulation Affecting Broadcasters? 

President-elect Trump this week selected sitting FCC Commissioner Brendan Carr to be the new Chairman of the FCC starting on Inauguration Day, January 20.  As a sitting Commissioner, Carr can become permanent Chair immediately – no Senate confirmation is necessary.  Current FCC Chair Jessica Rosenworcel announced that, as is traditional, she will not only step down from her position as Chair on January 20 and will also leave the Commission on that date – leaving one empty seat on the FCC to be filled by the new President (to permanently fill that vacancy,  Senate confirmation is needed).  Until that third Republican seat is filled, Chairman Carr will be operating with a Commission split 2-2 on party lines, suggesting that initially any major Commission actions will need to be ones that are bipartisan.  However, when Commissioner Carr becomes Chair, he can appoint the heads of the Bureaus and Divisions at the FCC that do most of the routine processing of applications and issuing most of the day-to-day interpretations of policy.  As Carr has been at the FCC since 2012 and has served as a Commissioner since 2017, one would assume that he already has in mind people to fill these positions – and thus his team should be able to hit the ground running.  What policies should broadcasters and those in the broader media world be looking for from a Carr administration at the FCC?

Immediately after the election, we wrote this article about several of the specific FCC issues where we anticipated that a Republican administration would move forward with policies different than those that have been pursued by the current administration.  Since his nomination, we have seen nothing that would suggest that the issues that we highlighted earlier in the month will not be on the Carr agenda.  In our last article, we noted that the FCC could be expected to take a different tact on the reinstatement of FCC Form 395-B, the EEO form that would require broadcasters to break down their employees by employment position and report on the gender, race, and ethnicity of the employees in each employment category.  In one of his first tweets on X after his nomination was announced, Carr said that the FCC would no longer be prioritizing “DEI” (Diversity, Equity, and Inclusion) efforts – seemingly confirming, among other things, that a reversal of the action on the Form 395-B could be in the works (which could easily be done, as there are pending Petitions for Reconsideration of the reinstatement along with pending appeals in the courts).

Carr has also called for reining in Big Tech platforms and ending what he has referred to as the “censorship cartel” between tech companies, the government, and major advertisers.  He has already sent letters to the heads of four major tech companies asking for details of their cooperation with a company that provides fact-checking and identification of disinformation to many media and tech companies (see his post to X here with a copy of those letters).  Having the FCC review the protections of social media platforms under Section 230 of the Communications Decency Act, as proposed in the first Trump administration (see our posts here and here) is one way in which this policy goal may be addressed.

Many have also suggested that Carr may quickly move to relax media ownership rules – as that was the one broadcast policy that he specifically identified in his chapter on FCC reforms in the Project 2025 report from the Heritage Foundation (the Project 2025 report is here, with the FCC discussion beginning at page 845).  As we noted in our earlier article, there is a court appeal pending challenging the FCC’s December 2023 decision to not relax media ownership rules, and the 2022 Quadrennial Review is also underway – either of which may give Carr an opportunity to review these rules.

But broadcasters should not assume that they can ignore FCC rules, or that they will be immune from FCC enforcement under a Carr administration.  Carr has said that he sees the public’s trust in media as being at an all-time low (see, for instance, this tweet) and suggested that a review of the FCC’s “public interest” standard that governs all of its regulatory activity should be a focus of its review of media policy, as that standard can be used to help restore the public’s trust in broadcast media.  Carr has been critical of several broadcasters’ activities that he saw as favoring one political or policy position over another, so his moves to break up what he sees as the “censorship cartel” may well extend to traditional media activities as well as those from online tech companies.

As we have written before (see for instance our articles here, here, here, and here), the FCC is limited by the First Amendment and Section 326 of the Communications Act from censoring broadcasters or abridging their freedom of speech.  Thus, the ability of the FCC to penalize broadcasters for their decisions on what to broadcast is very limited.  Certainly, any new administration is unlikely to form its own “censorship cartel.”   But the Chairmanship of the FCC provides a “bully pulpit” that can be used to influence the activities of broadcasters and others who, in some way or another, rely on FCC regulatory actions, even without regulatory change.  Examples are legion – one can look back to 1961 when FCC Chairman Newton Minnow delivered his “vast wasteland” speech at an NAB Convention, condemning the quality of broadcast programming and arguing that it was missing its potential to truly serve the American public – to see how long the tradition of FCC Chairs using their positions to influence what is transmitted to the public, and how lasting the impact of the activities of FCC chairs can be.  With the advent of digital media, the pulpit of the FCC Chair has grown in its reach, and its potential targets have grown perhaps even faster.  It appears that we will see the use of this bully pulpit, and perhaps of the regulatory machinery of the FCC, to address controversial issues in all media.  We will be watching to see what is next.