Trump-Inspired First Amendment Debate, Sinclair/Tribune Dominate House FCC Hearing
The House Communications Subcommittee's Wednesday FCC oversight hearing featured a sometimes contentious exchange over President Donald Trump's recent comments threatening to challenge NBC licenses, criticism of recent FCC actions that could affect Sinclair's proposed buy of Tribune, and discussion about a mix of lower-temperature issues, as expected (see 1710240065). FCC Chairman Ajit Pai again repeated his commitment to the First Amendment without specifically citing the president. Pai invoked the controversy to announce the details of media ownership reconsideration order that he plans to publish Thursday (see 1710250037 and 1710250049). "If you believe as I do that the federal government has no business intervening in the news, then we must stop the federal government from intervening in the news business" via the order, he said.
House Commerce Committee ranking member Frank Pallone, D-N.J., and other Democrats criticized Pai for the tenor of his initial response to the Trump license comments controversy and his comments at the hearing about the issue (see 1710170022). Pai told Pallone he wouldn't attempt to “characterize the views of anyone else” and said under his leadership, the FCC “stands on the side of the First Amendment.” Pallone said he believes Pai was exercising a “double standard” by not commenting on Trump's remarks while having previously criticized then-President Barack Obama for his comments that endorsed the need for net neutrality rules based in reclassification of broadband as a Communications Act Title II service ahead of the FCC's 2015 adoption of its current rules. Pai said he criticized Obama because his remarks appeared to compromise the FCC's independence.
Pai and House Communications Chairman Marsha Blackburn, R-Tenn., tied the controversy over Trump's comments to earlier media criticisms by Democrats. Pai invoked President John Kennedy's criticism of NBC and The Washington Post coverage during his term and more recent examples of Democratic attempts to investigate media organizations. Blackburn and Pai noted the controversial critical information needs studies the FCC attempted to do under then-Chairman Tom Wheeler, which aimed to identify barriers to entry into the communications market. The agency canceled the studies in 2014 amid criticism from Pai and lawmakers (see report in the March 3, 2014, issue). Blackburn characterized the studies as potentially “unconstitutional.” Pai said the studies were “not compatible with the agency's obligations under the First Amendment.” Commissioner Mignon Clyburn rejected criticisms of the studies, saying their cancellation meant the regulator is now “making decisions by putting a finger up in the wind and seeing where the political winds are flowing.”
Outcry over Trump's comments "is an attempt to distract" the FCC from "delivering on its mission to unleash American innovation," Blackburn said. The controversy stands “in sharp contrast to the silence” she believes congressional Democrats have observed “as Twitter cuts off the voices of conservatives, sexual assault victims, and potentially anyone who posts something they don't like for whatever reason.” Blackburn noted attempts by “some left-wingers” to get Twitter to ban Trump's account, saying she “wouldn't put it past” Twitter after the company's now-reversed block earlier this month of her Senate campaign launch video. Reps. Bill Flores, R-Texas, and Bill Johnson, R-Ohio, also cited examples of what they believe is Democratic hypocrisy on First Amendment issues.
Doyle and Pallone led fellow Democrats in criticizing Pai and the FCC for recent media policy actions that they believe are tailored to benefit Sinclair/Tribune. Pallone said it's “curious” that the hearing was occurring a day before public release of the media ownership recon order, and faulted Pai for not sharing the order's contents with House Communications before the hearing. Doyle concluded a lengthy colloquy with Commissioner Mike O'Rielly on his past Capitol Hill role in crafting the current 39 percent national cap by saying the FCC's recent media policy actions, including its restoration of the UHF discount, show the agency is on a “dangerous path” toward contravening congressional intent. Commissioner Jessica Rosenworcel said the agency's media ownership rules should “comply” with existing congressional intent.
Rep. Tony Cardenas, D-Calif., was meanwhile seeking additional signatures on a forthcoming letter to Sinclair CEO Chris Ripley raising concerns about the Tribune deal's potential impact on local news operations, consumers and local communities. “It is troubling that, given the complexity of this proposed transaction, its potential historic reach, and the transaction’s failure to comply with the FCC’s media ownership rules, that you expect the merger to go through by the end of the year,” Cardenas said in the draft letter. “We would like to review additional information about why Sinclair believes this merger would be in the public interest, as well as the impact it would have on the broader media landscape.” Cardenas wants Sinclair to respond to a range of questions about its potential impacts, along with information about any correspondence between the broadcaster and FCC officials “using non-governmental/personal email addresses and/or messenger applications or social media.” Cardenas also invoked concerns Pallone raised during the hearing about a lack of sufficient response from the FCC on Democrats' Sinclair/Tribune concerns.
House Commerce Chairman Greg Walden, R-Ore., said he remains interested in trying to “negotiate a compromise” on net neutrality legislation despite resistance from congressional Democrats. Rep. Jerry McNerney, D-Calif., and others also invoked ongoing concerns about the FCC's proposal to rescind the 2015 net neutrality rules, but the issue was far less dominant that during a July House Communications hearing (see 1707250059). Walden later noted his ongoing interest in pursuing legislation aimed at providing additional funding for post-incentive auction repacking and related issues, saying House Commerce is examining its “options.”
Hearing Notebook
Clyburn and O'Rielly jousted in prepared statements about agency decision making at the commission level versus on delegated authority at the staff level. Clyburn said there had been a number of "process fouls" since Q1, beginning with a "Friday News Dump," when FCC bureaus over her protests undid numerous actions taken under the prior Democratic leadership (see 1702030070). "There have been several instances, in which our office should have been made aware and given the opportunity to review an item, but we were not afforded that chance," she said. "And now, Commissioners are subject to a new process that will result in the release of a Commission-level item on delegated authority, even when Commissioners have asked for edits and voted on the item." She didn't identify the item.
O'Rielly said a "perpetual struggle over the use of delegated authority and its limits" continues. "Like the previous Commission, current Commissioners seek a greater ability to pull items to the Commissioner-level that are scheduled to be released by staff under delegated authority," he said. "There must be reasonable time limits for any item elevated from delegated authority and a process for addressing potential delays. Commissioners should use the elevation of an item to actively engage in a proceeding, not as a delay tactic." He didn't identify proceedings, noting he put forward a "balanced plan to accommodate the different interests" on delegated-authority decisions, which he outlined in a February blog post. Among pending items on the FCC's circulation list are an order on the planned sale of Securus to SCRS Acquisition and CenturyLink's planned buy of Level 3. Clyburn tweeted Monday she believed the Securus deal should have "strong conditions" attached but predicted there would be none (see 1710230045).
CenturyLink CEO Glen Post talked with Pai by phone Monday about the status of FCC review of its Level 3 deal. "The parties are prepared to close as soon as the Commission acts, and ... the Commission therefore should conclude its review and approve the merger expeditiously," said a filing Wednesday in docket 16-403. He "also discussed the costs to the companies of further delay, and noted that timely action will help bring the merger’s benefits -- including the creation of a more robust competitor in the provision of enterprise and wholesale services, increased investment in new and innovative services, and the development of a stronger network and combined company." O'Rielly has voted to approve the deal, an aide said recently (see 1710180037).