The FCC Strikes Against Free Speech and Privacy

The month of May has begun poorly for the causes of free speech and privacy at the Federal Communications Commission (FCC). The agency, once a mostly unthought-of entity overseeing mostly unthought-of matters of telecommunications policy, has stepped out boldly from the ranks of Washington, D.C.’s alphabet-soup bureaucracies. It is an unfortunate rule of politics—particularly at technical executive-branch agencies—that a job done competently and quietly is often rewarded with the public’s inattention. In a political age in which advancement requires notoriety, and notoriety requires waging militant campaigns enacted against one’s political foes, many bureaucrats in search of advancement see no means by which to distinguish themselves before their patron politicians besides pursuing the kind of policies that produce more media agitation than sound governance. In short, John Adams would easily have made sense of the strange evolution—and the recent machinations—of FCC Chairman Brendan Carr.

The FCC and Free Speech

Carr’s FCC has yanked hard on myriad statutory levers to remake the practices of progressive media organizations to suit the Trump administration’s preferences. Disney and its subsidiary ABC have become special objects of the FCC’s ire. A recent filing, submitted on behalf of KTRK (an ABC station in Houston, Texas), argues that the agency’s activities risk violating the First Amendment.

The dispute at hand began with the FCC suggesting that ABC’s The View might no longer qualify as a bona fide news program and, therefore, no longer enjoy the accompanying exception from the equal opportunities rule. The equal opportunities rule requires covered broadcasters, if they host one candidate in a political race, to host other candidates in the race as well.

The intricacies of the FCC’s and ABC’s respective contentions will, as this controversy unfolds, be teased out, and the merits of competing arguments tested. At this juncture, a few more general observations ought to be made.

First, the equal opportunities rule, which requires the FCC to interfere with the editorial decisions of media entities, persists only as a relic of a bygone time. Any such standard would fall before judicial scrutiny if applied to anyone besides covered broadcasters. KTRK writes:

While the Supreme Court [decades ago] may…have upheld the FCC’s distinct “personal attack” and “political editorial” regulations, the fundamental factual predicates of that decision no longer exist. The decision to hold broadcasters—and broadcasters alone—to a different First Amendment standard was dubious then and unsupportable now. In the absence of any meaningful scarcity of information resources, it is difficult to see how the equal opportunities rule can survive First Amendment scrutiny.

As the Information Technology & Innovation Foundation’s Joe Kane has explained:

[T]he Supreme Court did say that, in a 1943 case called NBC v. United States, later quoted in the more infamous Red Lion v. FCC. In those cases, the Court said that because spectrum is scarce, the FCC has no choice but to look to content to decide who gets to use it.

But while that case is still technically on the books, it is also manifestly wrong. First, its economic reasoning was muddled even at the time. Sure, spectrum is scarce, but so are all resources. But for no other resource do we think that characteristic justifies government control of speech that uses it. Indeed, when faced with regulation of newspapers, the Court had no trouble seeing that, even though paper, ink, and printing presses are scarce, the First Amendment means the government just doesn’t get a say in newspapers’ content. But beyond its doctrinal failings, the scarcity rationale is even more transparently nonsensical today when avenues for news consumption have multiplied dramatically.

Kane’s final point bears emphasis. Once, broadcasters occupied a far greater share of the media landscape. Today, diversity has triumphed: broadcast television, cable television, such video platforms as YouTube and Rumble, audio podcasts, radio, social media—all contend for the attention of the American people. Any rightful interest the federal government might once have claimed in stewarding broadcasters for the purpose of guaranteeing the American people access to differing ideas—dubious at any point in history—has been rendered dead and cold by technological innovation.

The FCC has long understood the constitutional fragility of its equal opportunities mandate. To dodge these difficulties, the agency distributed exemptions to a broad swath of broadcast programming. “The View has been broadcasting under a bona fide news exemption granted to it more than twenty years ago, consistent with longstanding Commission interpretations designed to minimize the serious First Amendment problems inherent in the equal opportunities regime,” KTRK notes. Carr, a self-proclaimed captain in President Trump’s campaign against the “fake news media,” seeks to deploy the equal opportunities rule more often.

The United States is planted thick with statutes which vest the administrative state with vast, often vague, and almost certainly unconstitutional powers. When bureaucrats restrain their ambitions and their policy making, America has, over the last century, proven itself capable of enduring the status quo in relatively good cheer. People would, as a rule, “rather bear those ills we have // Than fly to others that we know not of,” as Hamlet put it. The status quo little resembles Madisonian republicanism, but it has functioned somewhat satisfactorily. But when a long train of abuses and usurpations reveals the full scope of the administrative state’s vast powers, when the unelected occupants of various and sundry agencies and commissions make use of their full authorities at the expense of sound economics, the Constitution, and good governance generally, the overreach provokes a counterinsurgency.

The Federal Trade Commission, during the tenure of Biden-appointed progressive darling Lina Khan, began to discover as much, before Biden and were tossed from office. The Carr FCC fancies itself a champion of Republican politics, but—as calls to “Abolish the FCC” ring across the digital pages of diverse publications from Reason to National Review to The Washington Post—Carr himself may well have initiated a sequence that will end in a severe curtailment of his own agency’s powers, if not its destruction.

The FCC and Privacy

In a Further Notice of Proposed Rulemaking adopted on the last day in April, the FCC put forward a series of measures to combat illegal robocalls. The agency writes:

Specifically, we seek comment on requiring originating providers to, at a minimum, obtain and retain the name, physical address, government issued identification number, and an alternate telephone number of any new and renewing customer before granting access to its services. For high-volume customers, including business and foreign customers, we seek comment on requiring originating providers to also collect the intended use of the service (e.g., marketing, education, political campaign) and the customer’s IP address from which each call will be placed (if applicable).

The proposal may produce regulations to govern even prepaid services. The FCC: “We seek comment on whether customer information requirements should vary depending upon whether the customer is seeking a prepaid or postpaid service plan.” It may also require the provision of official documentation: “We seek comment on requiring originating providers to obtain supporting records to verify the customer’s identity, such as copies of government-issued identification.” Originating providers may, moreover, be constrained to re-verify the information of their customers as time passes.

The question before regulators in many sectors of public policy is whether the American citizen is to be allowed even a modicum of the privacy he once enjoyed as a matter of course. Particularly in a digital age, the government wields technologies to snoop on, monitor, and manage the everyday doings of the American people as never before—often undetected, and often intruding upon parts of life to which, in previous times, bureaucrats and policemen had no access.

Privacy benefits criminals, it is true. But excising privacy lays charges at the very foundations of liberty. The FCC surely has good reason to pursue criminals, but its means must not condition access to the basic communications services of modern life on a surrendering of privacy and anonymity.

The FCC relates its “know your customer” proposals to standards found in the financial services sector. “For example, the Bank Secrecy Act (BSA) of 1970, as amended, and its implementing rules, impose record retention and reporting requirements on financial institutions to help detect and prevent money laundering,” the agency says. The comparison is invidious: The BSA weds the worst of the surveillance state with the worst of the administrative state. It is, in a certain sense, a perfect icon of modern bureaucratic governance.

Conclusion

When considering all this, the Taxpayers Protection Alliance cannot help but wonder whether the FCC should simply be abolished. The agency carries out some important duties, but many can be eliminated or distributed among other agencies. Those duties that cannot be eliminated or distributed can be given to a new communications regulator unburdened by the FCC’s near-century of unconstitutionally vast delegations of powers, internal precedents and norms, and dubious jurisprudence.

An agency’s character consists of its statutory powers and its conduct over time; and if, like a politician’s, an agency’s character is destiny, the FCC ought to be removed from public life.