Two FCC documents caught my attention this month. The first was a notice, captioned “In re Delete, Delete, Delete,” that proposes to eliminate legacy FCC rules “for the purpose of alleviating unnecessary regulatory burdens.” The substance of this proceeding is familiar and commendable. At the direction of Congress, the FCC has periodically conducted similar proceedings since 1996 with an eye towards eliminating outdated rules as competition supplants the need for regulation.
The second document was Chairman Brendan Carr’s open letter to Google, posted exclusively on X. The letter chastised Google’s YouTube TV service for failing to carry the Great American Family network, and it threatened to “expand” the FCC’s existing “program carriage” obligations as a solution to that supposed problem. This is odd. The program carriage rules are a relic of the cable monopoly days of the 1990s and have become obsolete with the rise of video competition. They are an obvious candidate for the Delete, Delete, Delete chopping block, not for “expansion.” And any FCC effort to force YouTube TV to carry this channel would violate both the Communications Act and the First Amendment, as discussed below.
Chairman Carr presumably knows this. He is no stranger to the Act or the First Amendment. So why would he float a legally untenable proposal at war with the deregulatory ambitions of the new Delete, Delete, Delete proceeding? The answer appears to lie in the political orientation, not the substance, of these two documents.
Let’s start with a quick review of the program carriage regime. In 1992, most consumers had no alternative to the local cable company when selecting a pay-TV provider, known in the jargon as a “multichannel video programming distributor.” These cable monopolists had begun featuring their own programming networks in their channel lineups, sometimes at the expense of unaffiliated programming. Congress feared that they would leverage their downstream monopoly in the video distribution market to harm competition in upstream programming markets. Thus, in section 616 of the Communications Act, Congress directed the FCC to prevent “multichannel video programming distributors” from “unreasonably restrain[ing] the ability of an unaffiliated [programmer] to compete fairly by discriminating in video programming distribution on the basis of affiliation or nonaffiliation of [programmers].”
Over the ensuing decades, competition in the pay-TV market has surged, first with the successful entry of the major satellite MVPDs (DirecTV and Dish) and now with a boom in online streaming options. With that rise in competition, the program carriage rules, rooted in concerns about “unreasonable” foreclosure by vertically integrated monopolists, have appropriately faded into irrelevance. Consumers dissatisfied with the channel lineup of one pay-TV provider can readily switch to a rival provider, and video programming options have never been more numerous or diverse than they are now. It is thus no surprise that program carriage complaints today are very rare and that no complainant has prevailed in recent memory.
The target of Chairman Carr’s letter to Google is YouTube TV, which is a so-called “virtual MVPD” (and should not be confused with YouTube’s better-known social-media platform). Like a traditional MVPD, a virtual MVPD provides a curated set of linear TV channels in exchange for monthly subscription fees. But unlike cable and satellite TV providers, a virtual MVPD does not own last-mile transmission facilities; it offers over-the-top streams of linear TV programming to anyone with an independent broadband connection. YouTube TV and its virtual MVPD rivals—including Hulu, Sling, and Fubo—are not today subject to section 616’s program carriage requirements because the FCC has not classified them as “multichannel video programming distributors” within the pre-internet statutory definition of that term.
Chairman Carr nonetheless appears willing to shoehorn virtual MVPDs into that statutory category so that the FCC can subject them to regulatory burdens designed for 20thcentury cable monopolists. Why? Because, according to Carr’s letter, the Great American Family network has alleged that Google TV “discriminates against faith-based programming,” and Carr wants to combat “faith-based discrimination.”
This proposed expansion of the program carriage regime is legally unsound on several independent levels.
First, the FCC probably lacks statutory authority to classify virtual MVPDs as “multiple video programming distributors” subject to section 616. Congress defined that term decades ago mean services that transmit “multiple channels” and defined “channel” in narrow engineering terms to mean “a portion of the electromagnetic frequency spectrum.” Traditional cable and satellite providers transmit TV signals this way, but virtual MVPDs do not. To be sure, the Obama FCC did briefly propose to jam virtual MVPDs within this legacy regulatory category, albeit to bestow them with regulatory benefits rather than saddle them with new burdens. But as Biden FCC Chairwoman Jessica Rosenworcel told Congress in 2023, the FCC long ago placed that proposal in deep freeze because it had serious concerns about its legality. Those concerns are even more pronounced today, now that the Supreme Court has renounced the Chevron doctrine of judicial deference to questionable agency interpretations of ambiguous statutory language.
Second, even if the FCC could subject virtual MVPDs to program carriage rules, those rules do not even cover “discrimination against faith-based programming” or any other type of content, which is Chairman Carr’s stated concern. As noted, section 616 rests on antitrust-oriented concerns about vertical integration and thus narrowly prohibits only unreasonable discrimination based on “affiliation or nonaffiliation” with the MVPD—not viewpoint discrimination. A case in point is Tennis Channel’s unsuccessful complaint against Comcast 15 years ago for refusing to carry it on the most popular channel tiers alongside the Comcast-owned Versus and Golf channels. The FCC initially granted Tennis a rare program carriage victory, but the D.C. Circuit swiftly vacated the ruling. As the court observed, “the statute prohibits only discrimination based on affiliation,” and the FCC had identified no sound evidence that Comcast excluded Tennis to favor its own affiliated sports channels.
Here, no one even suggests that YouTube TV seeks to protect an affiliated faith-based channel from competition by Great American Family. To the contrary, Carr’s letter suggests that YouTube TV carries no faith-based channels at all, affiliated or not. Such content-based decisions may be politically controversial, but they fall entirely outside section 616’s scope.
Third, even if it had wanted to, Congress could not have more broadly prohibited “discrimination” on the basis of viewpoint or genre (rather than mere affiliation status) because doing so would have been unconstitutional. It has been established since the 1990s that the First Amendment protects any MVPD’s editorial decisions about which channels to carry and which to omit. Indeed, the Second Circuit held in 2013 that section 616 (as actually written) survives constitutional scrutiny precisely because it “prohibits only discrimination on the basis of affiliation,” “confers no protections based on the content of an unaffiliated network’s programming,” and allows any MVPD to “decline to carry an unaffiliated network, whatever the content of its programming, because it opposes the views expressed by the network[.]”
In sum, Chairman Carr’s notional case against YouTube TV is trebly flawed: (1) a virtual MVPD service is not subject the program carriage regime; (2) that regime would not apply to “discrimination against faith-based programming” anyway; and (3) misapplying the regime to combat such “discrimination” would violate the First Amendment.
We should be grateful that the FCC cannot meddle in the editorial choices of MVPDs except in the narrow antitrust-type circumstances governed by section 616. The markets for video programming and distribution are working just fine without bureaucratic oversight. Consumers who want to watch the Great American Family network are hardly captive to YouTube TV’s editorial choices. They can readily watch the network by signing up, in the network’s own words, with any of the “major cable providers” or a wide variety of “affordable streaming services,” including YouTube rivals “Frndly TV, Fubo TV, Philo, Hulu, DirecTV Stream and Sling TV.” Indeed, anyone can watch the network’s shows on YouTube itself via Great American Family’s YouTube page.
At the same time, the narrow scope of the current program carriage regime also benefits conservative and faith-based subscription-TV providers because it enables them to curate their programming line-ups as they wish, consistent with their values. It thus insulates them from intrusive FCC scrutiny when they “discriminate” against programming they might disfavor, ranging from CNN and MSNBC to Al Jazeera.
None of this is likely to be news to the Chairman. He has a sharp legal mind and a deep background in communications law; indeed, he once served as the FCC’s general counsel. One can only conclude that he posted the letter about YouTube TV with full knowledge that the proposed expansion of the program carriage rules would be dead on arrival in court. And he likewise could not have missed the obvious inconsistency between this push for expanding legacy regulation and his broader deregulatory goals announced in the Delete, Delete, Delete public notice.
Dig a little deeper into these two documents, however, and you see some interesting consistencies—not in substance, but in political orientation. Both are written and advertised in ways that seem intended to appeal to President Trump, Elon Musk, and the MAGA faithful. Consider the odd title of the new regulatory review proceeding: “In re: Delete, Delete, Delete.” The title appears to originate in a quote from Elon Musk in Walter Isaacson’s 2023 biography: “Step one should be to question the requirements. Make them less wrong and dumb, because all requirements are somewhat wrong and dumb. And then delete, delete, delete.” Why does the same catchphrase appear as the caption for the new FCC review proceeding (albeit without attribution)? Perhaps to signal enthusiastic loyalty to Musk and, by extension, President Trump.
The same partisan considerations may have influenced the odd choice of forum for the Google letter. The last time we checked, that letter does not appear on the FCC’s website. Instead, you’ll have to head over to Elon Musk’s proprietary platform, X, if you want to read it. Were you planning to take a break from that platform? You can’t if you want to follow the FCC’s views about expanded bureaucratic intervention in streaming TV services.
In all likelihood, Chairman Carr does not seriously intend to expand the scope of the program carriage rules because he knows that he legally cannot and because, in any event, he does not want to give the likes of CNN and Al Jazeera a basis for suing pay-TV services that refuse to carry them. It’s more likely that he posted this letter (1) to showcase his fidelity to President Trump by championing evangelical conservatives against Big Tech and coastal elites and (2) to strongarm Google into submission without creating broader legal precedent that disfavored programmers could later invoke.
The second of these explanations is the more troubling one. Bureaucratic overreach is a problem whether it takes the form of outright regulation or, as here, bully-pulpit jawboning designed to coerce outcomes that an agency cannot lawfully require. A jawboning target cannot simply call the FCC’s bluff because the Commission, and the Administration as a whole, enjoy great discretion to kneecap any disobedient company down the road in unrelated contexts, ranging from merger-approval proceedings to litigation settlements to the award of government benefits. Meanwhile, similarly situated market actors will take heed and quietly submit to the new unwritten rules. So in practical result, extralegal jawboning is no better than overbroad regulation. Indeed, it can be worse because it evades judicial review—and thus enables an agency to exercise unchecked power to pursue whatever unlawful ends it seeks to achieve.
These are early days in Brendan Carr’s tenure as chairman, and it would be unfair to extrapolate too much from this episode. But there comes a point when any new agency head, of whatever ideological persuasion, must put the political virtue-signaling aside, align rhetoric with substance, and get down to the hard business of pursuing a coherent set of sensible regulatory policies. Two months in, there is no time like the present.
Jon Nuechterlein is a Washington, DC-based attorney and writer with broad experience in government and the private sector. He is currently a Nonresident Senior Fellow at the Technology Policy Institute and adjunct professor at Georgetown Law School, where he teaches seminars in antitrust and telecommunications law. In December 2024, he retired from Sidley Austin LLP after nearly nine years as a partner and co-leader of the firm’s Telecom and Internet Competition practice. From 2013 to 2016, Jon served as General Counsel of the Federal Trade Commission, where he oversaw the Commission’s appellate litigation activities and provided legal counsel on a range of antitrust and consumer protection issues. Jon’s extensive government experience also includes positions as Deputy General Counsel of the FCC (2000-2001), as Assistant to the Solicitor General (1996-2000), and as law clerk to D.C. Circuit Judge Stephen Williams (1990-91) and Supreme Court Justice David Souter (1991-92). He is a graduate of Yale Law School (1990) and Yale College (1986).
Jon is the author, with Phil Weiser, of the first two editions of Digital Crossroads: Telecommunications Law and Policy in the Internet Age (MIT Press 1st ed. 2005 & 2d ed. 2013). He and Georgetown Law Professor Howard Shelanski are finishing work on the third edition of that book, which is scheduled for publication in early 2026.
