Mark Twain noted that “everybody talks about the weather, but nobody does anything about it.” The same could be said of the broadcast industry’s reaction to the Trump administration’s threats to yank the broadcast licenses of disfavored media companies. Even Republican Senator Ted Cruz opined last year that it was “dangerous as hell” for FCC Chairman Brendan Carr to imply that “we’re going to ban you from the airwaves if you don’t say what we like.” But Carr’s threats keep coming, with the intended effect of suppressing political dissent. And nobody in the broadcast industry has done much about it.
That needs to change. Broadcasters should not wait for the FCC to cancel actual licenses before going to court. They should sue now and challenge the root of the problem: an obsolete statutory scheme that gives the FCC immense discretion to grant or deny broadcast licenses based on whatever the ruling party deems the “public interest.” When I was a young lawyer at the FCC in the mid-1990s, everyone knew that this scheme was already on shaky constitutional ground. It has now become a textbook First Amendment violation.
Let’s begin with the facts. Over his two terms, President Trump has publicly threatened dozens of times to revoke the broadcast licenses of his media critics. Trump cannot revoke those licenses directly; he has to rely on the FCC. His first FCC chairman, Ajit Pai, resisted the call because, as he reassured the public in 2017, he “believe[s] in the First Amendment.” But Pai could get away with such insubordination only because the FCC was then regarded as an independent agency insulated from White House control.
Those days are gone. Chairman Carr, who depicts himself on his coffee mug as Trump’s “media pit bull,” now insists that the FCC is “not an independent agency” after all and that he serves at Trump’s pleasure. Carr put his loyalty on display when, in March, Trump railed on Truth Social about the media’s coverage of the Iran War. Carr duly reposted Trump’s post on X and added: “Broadcasters that are running hoaxes and news distortions—also known as the fake news—have a chance now to correct course before their license renewals come up” and “will lose their licenses if they do not.”
It’s not clear whether Chairman Carr plans to follow through and revoke any broadcast licenses. He would face formidable legal challenges if he tried. But “the threat is the point,” as lone Democratic FCC Commissioner Anna Gomez observes; “the value of a sword of Damocles is that it hangs, not that it drops.”
How did we get here? The Communications Act of 1934 grants the FCC nearly unbridled discretion to determine who can operate a broadcast station, depending on the FCC’s view of the “public interest, convenience, and necessity.” In the mid-twentieth century, the Supreme Court upheld this hyper-discretionary scheme on so-called “scarcity” grounds. In those days, programmers had to use the airwaves to reach mass audiences because there were no cable TV channels, let alone websites and podcasts. The FCC had allocated only a small portion of the airwaves for broadcasting, and there were more applications for frequency slots than available slots. Some mechanism was needed to choose among competing broadcast applicants. And Congress assigned that task to the politically insulated technocrats of the FCC, who (the theory went) would dispassionately nurture America’s marketplace of ideas during this era of media scarcity by imposing various programming obligations on radio and TV broadcasters.
This scarcity rationale for broadcast content regulation has several problems. To begin with, it never made much sense as a policy matter even when the distribution channels for programmers were in fact scarce. As Ronald Coase explained in 1959, most valuable resources are “scarce” in an economic sense, but our capitalist system normally relies on market forces rather than government fiat to allocate them to their most valuable uses, and spectrum should be treated no differently. Policymakers ignored Coase’s insight for more than three decades until, in 1993, Congress authorized the FCC to allocate spectrum via auction. But Congress excluded broadcasting from the new auction mechanism, and thus broadcast licenses remain subject to the legacy public interest regime.
Whatever its original merits, the constitutional rationale for broadcast content regulation has collapsed in the face of new technological and legal realities. The Supreme Court has repeatedly reaffirmed that no government actor may regulate the content of cable channels or websites, which first appeared in the 1980s and 1990s and soon eclipsed broadcasting as the dominant means of mass communication. Indeed, only about 15% of households with a television still receive programming over the broadcast airwaves; everyone else watches shows over the internet or through cable or satellite TV services. These profound changes in the media landscape undermine the traditional “scarcity” rationale for treating broadcast regulation differently from other electronic media for First Amendment purposes.
There is thus a general consensus that, if the issue were forced, the Supreme Court would overrule its mid-century decisions upholding the FCC’s customary role in regulating broadcast content under the “public interest” standard. That is why the FCC did not force the issue for half a century. From the Reagan administration until 2024, the FCC mostly avoided content regulation altogether. Indeed, then-Commissioner Carr himself insisted in 2021 that a “newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official” under “bedrock principles of free speech and journalistic freedom.” He was right then and is wrong now.
Any lingering doubts about the unconstitutionality of FCC content regulation would be dispelled by another legal development that, ironically, the Trump administration has brought on itself. When the Supreme Court upheld the FCC’s hyper-discretionary public interest authority in the mid-twentieth century, the Commission was regarded as an independent technocratic body insulated from day-to-day White House control. As noted, Chairman Carr has now repudiated that characterization, and more generally the Supreme Court is poised to abolish the last vestiges of agency independence, with President Trump’s enthusiastic support. And just as the First Amendment would not permit the president himself to silence disfavored broadcasters, it also does not permit his political fixer to do the job for him.
The broadcast industry can challenge this unconstitutional regime today; it should not wait for the FCC to follow through on its threats. The Supreme Court has already lit the path for an immediate challenge. In Lakewood v. Plain Dealer (1988), a newspaper brought a facial challenge to a city ordinance giving the mayor broad discretion over news rack permits. The city argued no suit could proceed until the mayor actually denied an application. The Supreme Court rejected that argument and invalidated the ordinance.
As the Court explained, the mayor could deny any application on any trumped-up pretext, leaving rejected applicants with “no way of proving that the decision was unconstitutionally motivated.” The ordinance thus pressured all newspapers “to conform their speech to the licensor’s unreviewable preference”—for example, by “endors[ing] the incumbent Mayor in an upcoming election” or “refrain[ing] from criticizing him.” And the same is true of the provisions of the Communications Act of 1934 that grant the FCC—once an independent agency but now a political marionette—full discretion to grant or deny broadcast licenses in whatever it deems “the public interest.”
President Trump and his defenders sometimes claim that abolishing enforceable “public interest” obligations would grant broadcasters an unfair windfall because they use the public airwaves for “free.” But this is a red herring even if we assume that broadcasters should be subject to special programming obligations in the first place. Once the existing regime is invalidated, Congress can enact new legislation holding broadcasters to well-defined and viewpoint-neutral public interest duties—for example, a duty to air a certain number of hours of locally originated programming each week. What Congress may not do is what it has done since 1934: confer carte blanche on the FCC to define the “public interest” however it wishes, and in ways that invite covert viewpoint discrimination.
The Supreme Court closed its Lakewood opinion with words that resonate today, as the broadcast industry mulls its next move against an increasingly aggressive FCC. The Court observed: “waiting for an alleged abuse before considering a facial challenge would achieve nothing except to allow the law to exist temporarily in a limbo of uncertainty, and to risk censorship of free expression during the interim.” The time to call the administration’s broadcasting bluff is now. All it takes is political will.
Jon Nuechterlein is a Washington, DC-based attorney and writer with broad experience in government and the private sector. He is a Distinguished Scholar at George Washington University’s Competition Law Center, an adjunct professor at Georgetown Law School, where he teaches seminars in antitrust and telecommunications law, and a Nonresident Senior Fellow at the Technology Policy Institute. 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 Howard Shelanski) of the recently released third edition of Digital Crossroads: Telecommunications Law and Policy in the Internet Age(MIT Press 2026).
