Joe Kane: The FCC Has No Mandate to Police Speech in the 'Public Interest'

TV and radio broadcasters have licenses from the Federal Communications Commission—“and that comes with it an obligation to operate in the public interest,” according to FCC Chairman Brendan Carr, who has often insinuated threats to the licenses of companies that broadcast views with which he disagrees.

Most recently, Chairman Carr argued that a September 15 broadcast of a Jimmy Kimmel monologue—in which Kimmel said “the MAGA gang [were] desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them”—was incompatible with licensees’ public interest obligations. Carr went on to say, “we can do this the easy way or the hard way.” The implication was that broadcast content should change, or the FCC would go after broadcasters’ licenses. 

But it isn’t that simple. As the Supreme Court recently reaffirmed, the “public interest” standard is limited by the text of the Communications Act. Therefore, it doesn’t have the breadth to support Chairman Carr’s threatened actions. Rather, such actions would likely run afoul of a constitutional rule known as the  nondelegation doctrine, not to mention the First Amendment.

Under the nondelegation doctrine, the FCC has only the authority properly delegated to it by Congress, and proper delegations must include an “intelligible principle” for the agency to apply in exercising that authority. In the case of broadcast spectrum, the FCC is authorized to issue licenses in the “public interest, convenience, or necessity.” This standard is colloquially shortened to the “public interest standard.”

At first glance, the public interest standard seems like the type of broad, yet vague grant of authority the nondelegation doctrine is supposed to prohibit. Regulators always think their preferences are in the interest of the public. Courts, too, have blessed it in this and other contexts. 

But that blessing always comes with a limitation: The standard is bounded by the statute from which it comes. Courts don’t say, “The public interest standard is super broad, but it’s constitutional anyway.” They say, “The public interest standard is constitutional because it isn’t actually that broad.”

The Supreme Court summed up this jurisprudence last term in FCC v. Consumers’ Research, clarifying that: “For we have long held that the words ‘public interest’ in a regulatory statute do not encompass the general public welfare but rather take meaning from the purposes of the regulatory legislation.”

This hemming-in of the public interest standard goes way back. In New York Central Securities Corporation v. United States, the Supreme Court held that a public interest standard is not “a mere general reference to public welfare without any standard to guide determinations” because “the purpose of the Act, the requirements it imposes, and the context of the provision in question show the contrary.”

This pattern continues in the realm of spectrum regulation. In Federal Radio Commission v. Nelson Brothers, the Supreme Court held (regarding the public interest standard of the predecessor agency to the FCC) “In granting licenses, the Commission is required to act ‘as public convenience, interest, or necessity requires.’ This criterion is not to be interpreted as setting up a standard so indefinite as to confer an unlimited power.”

It went on to hold that the public interest standard is restricted by “its context” and “the nature of radio transmission and reception.” In other words, the public interest standard cannot define itself. The Court found content of the standard to be regulatory fairness: radio stations are “not to be the victims of official favoritism.”

Even in NBC v. United States, in which the Court permitted content-based regulation thanks to a bungled understanding of spectrum scarcity, the statutory citations the Court  said justify the public interest standard look more like authorizations of technical management than content selection. They contemplate the FCC distributing “licenses, frequencies, hours of operation, and power” in a “fair, efficient, and equitable” way. And while the statute goes on to permit the FCC to examine “such other matters as the Commission may officially notice” that catch-all language must be read in the context of the technical attributes in the section it cross references; otherwise, it is a delegation so broad as to be without intelligible principle. 

But when Chairman Carr purports to wield the public interest standard against broadcast content, he routinely speaks as though it was a standalone power of the Commission. That’s just the kind of statutorily unmoored use of “public interest” that courts have warned against.

For example, in speaking of comments made by a TV personality on ABC stations, Carr intimated that such content transgressed licensees’ “obligation to operate in the public interest.” Elsewhere, he has suggested that editorial decisions of a news broadcast amounted to lack of “adherence to the public interest standard.” Such invocations of the public interest standard as a generic opportunity for the FCC to condemn the content of broadcasted speech are incompatible with the statutory intelligible principles that allow the public interest standard to survive nondelegation challenges.

FCC content regulation based on the public interest standard is trying to have it both ways. It needs the public interest standard to be broad enough to allow generalized regulation of what the FCC thinks is best but narrow enough to survive nondelegation. It can’t be both.

Joe Kane is director of broadband and spectrum policy at the Information Technology and Innovation Foundation. Previously, he was a technology policy fellow at the R Street Institute, where he covered spectrum policy, broadband deployment and regulation, competition, and consumer protection. Earlier, Joe was a graduate research fellow at the Mercatus Center, where he worked on Internet policy issues, telecom regulation, and the role of the FCC. This piece is exclusive to Broadband Breakfast.  

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