If News Is Fake, Shouldn’t Their Licenses Be Too?: Trump Seeks To Revoke NBC’s “FCC License”

In this month’s fake news, President Trump sought refuge in Twitter: “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”

Specifically, Trump tweeted “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”

In response to Trump’s plentiful tweets this month regarding the Fake News and calling on the revocation of their licenses, and various Democrats within Congress requesting the Federal Communications Commission (FCC) to comment, the FCC Chairman, Ajit Pai, stated, “I believe in the First Amendment. The FCC, under my leadership, will stand for the First Amendment. Under the law, the FCC does not have the authority to revoke licenses of a broadcast station based on the content of a particular newscast.”

The First Amendment, as interpreted by the Supreme Court, is “a profound national commitment to having a robust, uninhibited and wide open debate,” which can allow critical rhetoric against both samaritans and public officials alike. Furthermore, Jessica Rosenworcel, one of the FCC commissioners appointed by Trump, highlights that “[i]t’s essential that the FCC in all that it does is careful to abide by the First Amendment when it engages in any kinds of policies engaging broadcast licensees.”

Consequently, the FCC rarely revokes a broadcasting licenses. This rarity arose when “a woman died from water intoxication after competing in a contest called ‘Hold Your Wee for a Wii.’” The FCC terminated that California radio station’s license, however there are not “many contemporary historical examples, but the best example is killing someone.”

Accordingly, in the 1970s former President Nixon suggested revoking the Washington Post’s license for its coverage of Watergate was ultimately unsuccessful. While these licenses renew every eight years and the FCC can reject renewal if broadcast engaging in illegal activity, that determination is solely left to the FCC. Moreover, the FCC seldom proactively revokes a license, much less on the basis of supposedly objectionable content.

While Pai effectively and objectively set the record that the President does not have the power to revoke broadcasting licenses, there are further legal technicalities overlooked. The FCC is an independent agency, which means it is not a part of the executive branch and domain of the president. Additionally, while the FCC sets broadcast rules, FCC does not license networks. The FCC licenses individual broadcast stations; the owner of the stations privately contract with networks.

With respect to administrative law concerns, the extent to which a president can inject his/her power within independent agencies is through the nomination of the chairman from sitting commissioners, which is then subject to Senate confirmation. Therefore, the threat that the FCC faces, specifically Pai, is that Trump has the power to keep Pai as chairman or demote him come 2019.

All five FCC commissioners are expected to attend a hearing October 25th, by the Subcommittee on Communications and Technology. In considering the oversight of the FCC; the Subcommittee’s commitment to an accountable FCC through “’. . . eliminating onerous regulations, reforming programs, and creating the right conditions to help expand broadband access across America’;” and whether the FCC might prevent a station’s license renewal due to political pressures, relevant parties should consider the President’s own words,

“The most important truth our FOUNDERS understood was: FREEDOM is NOT a gift from Govt. FREEDOM is a GIFT from GOD.”