Trump Tweet Against NBC License Stirs Outcry But Isn't Likely to Lead to Action

Trump doesn’t have the authority to order the commission or Chairman Ajit Pai to take action against a licensee, and the NBC Network doesn’t operate under an FCC license, as Trump’s tweet appeared to imply, numerous professors and attorneys said. “I don’t think there’s anything he can do,” said Angela Campbell, director of Georgetown's Institute for Public Representation’s Communications and Technology Clinic. Trump’s tweet suggests he would use the power of government to censor if he could, Campbell said. “The FCC has rules designed to provide due process and protect against arbitrary action,” said Garvey Schubert attorney Erwin Krasnow. The FCC and White House didn’t comment.

Trump told a White House reporters' pool later Wednesday a report on nuclear weapons was “fake news by NBC,” adding “which is a lot of fake news lately." Trump said it’s “frankly disgusting the way the press is able to write whatever they want to write, and people should look into it." The news media “should speak more honestly,” Trump said. He said the NBC story was “made up,” and reporters fabricated sources: “They make up the sources. There are no sources."

The FCC's Democrats joined members of the party on Capitol Hill in opposing Trump's sentiment. Commissioner Jessica Rosenworcel replied to Trump in her own tweet with a link to FCC rules, saying that his suggestion was “Not how it works.” Rosenworcel called on her fellow commissioners to protect free speech. "Freedom of the press is a cornerstone of our democracy," she tweeted. "Hope my @FCC colleagues can all be on the same page with respect to 1st Amendment." Revoking a broadcast license "on such grounds will only happen if we fail to abide by the First Amendment," Commissioner Mignon Clyburn tweeted.

Trump’s tweet questioning NBC’s license was retweeted 14,265 times and “liked” 57,709 times. A preceding tweet decrying a Wednesday NBC story on Trump’s plans for hugely expanding the U.S. nuclear arsenal as ”Pure fiction, made up to demean” received 12,366 retweets and 46,061 likes.

Though Comcast and its NBCUniversal own and operate under FCC license TV stations in several major cities, taking away some individual station licenses doesn’t appear to be the intent of Trump’s tweet, said University of Minnesota Hubbard School of Journalism assistant professor of media law Christopher Terry. Individual TV stations don’t oversee network news content, several communications professors noted. “It’s difficult to put much energy in defense against a declaration that on the face of it makes no sense,” said Penn State University Palmer Chair in Communications Sascha Meinrath. NBCU didn't comment.

The FCC traditionally has been loath to regulate licensees based on content, and license revocations of any kind are extremely rare, said Terry. Though it would be possible for Trump to petition the FCC to revoke an NBC station’s license or not renew it when its renewal date comes around, such an action would have no more legal force coming from Trump than from any other citizen, Krasnow said. The president likely would have standing to dispute only the licenses of stations that serve areas he resides in, Campbell said. NBC owns stations in New York and Washington.

The FCC has no formal rules against "fake" news, and an older policy against news distortion has been little used, Campbell said. The FCC’s fairness doctrine was intended to be a barrier to one-sided news reporting but was “systematically gutted” by Republicans, Meinrath said. “Maybe the president would be open to bringing it back,” Meinrath said, though he conceded most of Trump’s party would oppose such a move. Pai is on the record as strongly opposing the fairness doctrine, and raised it under the previous administration as an example of FCC overreach in his campaign against proposed FCC studies of media diversity.

"It is contrary to this fundamental right for any government official to threaten the revocation of an FCC license simply because of a disagreement with the reporting of a journalist,” said NAB CEO Gordon Smith. Broadcasters should be concerned that Trump “continues to make aggressive statements against the role of the fourth estate,” said Robert Thompson, director of Syracuse University’s Bleier Center for Television and Popular Culture.

Precedent

This wouldn’t be “the first time or the last time a president asked the FCC to do something,” former Commissioner Harold Furchtgott-Roth told us.

The former Republican commissioner cited actions by then-President Richard Nixon against a Washington Post-owned TV station, and statements from former President Barack Obama about FCC action on net neutrality. Nell Minow, daughter of former FCC Chairman Newton Minow, tweeted an article her father had written about declining to take action against NBC after being asked to do so by then-President John Kennedy.

The FCC power to regulate broadcasters always will leave open the possibility its authority will be used to chill speech, said Brent Skorup, Technology Policy Program research fellow at the Mercatus Center at George Mason University. He cited a documentary critical of then-Democratic presidential candidate John Kerry that wasn’t allowed to air at full length out of fear that Kerry supporters would block the license renewals of stations that showed it.

Reaction

Sen. Tom Udall, D-N.M., urged the Senate Commerce Committee to “call a hearing.” Trump's statements “attacking the free press as 'fake news' undermines our democracy,” Udall said. Sen. Ed Markey, D-Mass., earlier wrote Pai "to urge you to maintain" the agency's "charter as an independent agency" and repel any influence from Trump. Senate Commerce didn't comment.

Trump's “threat against NBC and other media outlets is far from empty,” said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, in a statement citing the earlier Nixon White House actions. “Today, Donald Trump has threatened to do the same to NBC,” Schatz said. “We raised this possibility” during a July Senate Commerce confirmation hearing for Pai (see 1707190049). “Now, the FCC must show that it is loyal to the law, not the president, and make clear that it rejects this kind of interference,” Schatz said. "Imagine the reaction in the House" if Obama had urged a majority-Democratic FCC to consider revoking Fox stations' licenses over their criticism of Obama's policies, Schatz said in a follow-up tweet.

Top House Commerce Committee Democrats likewise blasted Trump's anti-NBC comments, during a House Communications Subcommittee markup of FCC reauthorization legislation (see 1710110070).

House Commerce ranking member Frank Pallone, D-N.J., was “disturbed” by Trump's tweets, noting that the “threat alone” of possible FCC revocation of stations' licenses “could intimidate the press and lead to skewed” reporting. Pallone urged Pai to “immediately condemn this unwarranted attack." House Communications ranking member Mike Doyle, D-Pa., said he's “deeply concerned” by Trump's comments. The Trump administration has the “right to dispute the veracity” of any news outlet's reports, but it's “unacceptable to threaten” to pull stations' licenses, Doyle said. Committee Democrats “wanted to put Trump on notice” on the tweets and aren't seeking a hearing at this time, Doyle later told us.

Though it’s widely agreed FCC action is unlikely to materialize from Trump’s tweet, industry groups and officials said broadcasters should be concerned about the free-speech implications. Trump’s tweet “is not only dangerous to the American people’s right to access responsible journalism, it represents a clear misunderstanding on his part of how much control the federal government can exercise,” said Dan Shelley, Radio Television Digital News Association and Foundation executive director.

No response from Pai to Trump’s tweet or the reaction to it is expected, industry observers said. It’s entirely appropriate for him not to, said Krasnow. "If something formal were filed at the FCC,” it would be different, he said. “There’s no upside to getting involved in this imbroglio,” said Meinrath. This would be a good opportunity for some civic education, Thompson said, saying Pai should address the issue. “A lot of Americans don’t know exactly what the relationship between the federal government and broadcasting is,” he said. “This is a perfect time to clarify.”