News

In its nearly 100-year history, the Federal Communications Commission has rarely invoked the news distortion rule – and hasn’t invoked it at all in more than 30 years. But FCC Chair Brendan Carr has recently suggested applying it, and doing so in an unprecedented way.

“In general, the FCC has been wary about trying to push its public interest authority over the airwaves,” said Duke Law professor Stuart Benjamin. “I think a shift may be happening.”

Benjamin teaches telecommunications, First Amendment, and administrative law at Duke Law School and co-directs its Center for Innovation Policy. He served two terms as an advisor to the FCC.

The FCC regulates commercial and non-federal uses, such as radio and television broadcasts, of the electromagnetic spectrum, the range of frequencies over which radio waves travel. It has statutory authority to issue licenses for use, most commonly for an eight-year term, and must approve license renewals and transfers if they meet a certain standard that Benjamin describes as “unusually broad.”

“The standard is whether the public interest, convenience, and necessity would be served by the renewal or by the transfer,” Benjamin said. “This is an unusual kind of power. Such power would be unconstitutional if applied to any form of communication other than broadcasting, but the Supreme Court has held that broadcasting is subject to much weaker constitutional scrutiny.”

The agency also can revoke licenses and deny a renewal or transfer if it’s deemed not in the public interest. But Benjamin said that over the past 25 years it has exercised restraint, doing so only a handful of times, and only for egregious violations of objective statutory standards governing licenses (for example, a licensee lying to the FCC about his fraud conviction).

This fall Carr proposed revoking the licenses of broadcasters who carry the late-night show Jimmy Kimmel Live! over comments the comedian made during a monologue, citing the news distortion rule.

The news distortion rule isn’t an actual rule but a set of standards created by the FCC, Benjamin explains.

The FCC has stringent requirements as to what conduct qualifies as news distortion. The program must be dedicated to news. The agency must show that the management or ownership of a station engaged in intentional manipulation or misrepresentation of news, and it must be backed by extrinsic evidence “such as written or oral instructions from station management, outtakes, or evidence of bribery.”

The allegation must be both substantial — deliberately intended to slant or mislead and involving a significant event. It also must be material, whereby “the licensee itself is said to have participated in, directed, or at least acquiesced in a pattern of news distortion,” Benjamin writes.

Since 1982 there has been only one case where the FCC invoked the news distortion rule (the case involved a news report on a truck’s “unsafe” gas tank in which the program attached incendiary devices to the tank), and even then FCC’s penalty was only a letter of admonishment that had no impact on the station’s renewal. Benjamin said that such mild actions that do not impede renewal have been the norm.

“It's very hard to satisfy those criteria for what counts as news distortion,” Benjamin noted. “These standards, basically by design, have been fairly toothless or, if you will, a paper tiger.”

Leaving aside whether those criteria could be met, treating Kimmel’s show as a news program would be unprecedented in the FCC’s history, Benjamin said.