Reply Comments of Jeffrey Westling[1]

Introduction

The Federal Communications Commission (FCC) issued a public notice seeking comment on a complaint filed against WCBS asserting the station violated the news distortion rule.[2] Though the complaint focuses on the specific case of a “60 Minutes” interview with then-Vice President Kamala Harris, some commenters have raised questions about the underlying rule itself.[3] The news distortion rule runs counter the both the Constitution and good policy, and the FCC should begin a rulemaking to eliminate the rule entirely, as well as other rules that affect the speech broadcasters choose to air.

The FCC’s News Distortion Rule Conflicts with the First Amendment

The FCC’s policy on news distortion stems from congressional direction to regulate radio broadcasting in the public interest.[4] Prior to the passage the Radio Act of 1927, the precursor to the Communications Act of 1934, radio broadcasters frequently interfered with one another because the federal government placed few if any limitations on who could obtain a license, and only so many operators could co-exist in a given time, location, and frequency.[5] As a result, Congress decided to step in and create the Federal Radio Commission, the precursor to the FCC with the authority to license individual stations and manage operations to prevent harmful interference.[6] Because the management of radios would require the FCC to essentially pick winners and losers, Congress charged the Commission with regulating radios to promote the public interest.

But doing so necessarily conflicts with the First Amendment. If the FCC decides who can and cannot operate, it must make a judgment about the relative merits of those broadcasts. The First Amendment would otherwise protect individuals from such judgment, but the Supreme Court has made clear that due to the inherent scarcity of broadcast licenses, the First Amendment standards for broadcasters are lower than for other mediums of speech.[7] This tension prompted Congress to make clear that the Commission could not regulate in a way or impose conditions that would interfere with the right of free speech by means of radio communication.[8]

As then-Commissioner Bellows explained in 1927, “[i]t is a rather appalling responsibility. The law tells us that we shall have no right of censorship, but the physical facts of radio transmission compel what is, in effect, a censorship of the most extraordinary kind.”[9]

Perhaps the news distortion rule may have made sense in the early days of broadcasting, as the ability of a broadcaster to reach consumers was inherently limited by the physics of broadcasting. And with a limited number of licenses in a market, ensuring that news stations didn’t intentionally distort facts could serve the public interest because consumers had fewer alternatives.

But today, the alternatives are endless. While the number of broadcast licenses remains limited, most consumers receive their news online through blogs, podcasts, and online video shows and livestreams.[10] If consumers want content that broadcasters aren’t providing, they can simply switch services. This in turn forces broadcasters to air the content that consumers want to see. Imposing rules on what broadcasters must do with their licenses necessarily distorts that marketplace for content and may no longer be justified even under existing First Amendment jurisprudence.[11]

The News Distortion Rule Is Rife for Misuse to Chill Speech

In isolation, the news distortion rule may not seem like the most burdensome regulation; after all, if a broadcaster doesn’t deliberately lie to its audience, it will not violate the rule. But there is potential for abuse if the FCC decides to chill speech regardless of the merits of the underlying complaint.

The news distortion rule has a very high bar for a reason, and as explained in the record, a successful news distortion complaint must assert and show that a broadcaster deliberately distorts the news or mislead the audience.[12] This high bar exists because of Congress’ instruction to the FCC not to abridge the free speech rights of broadcasters, as well as the Court’s application of the First Amendment to broadcasters. And as a result, a news distortion complaint rarely results in action against a broadcaster.

But the mere existence of the news distortion rule allows the FCC to exert undue influence undue influence over a broadcaster’s editorial judgements. If a broadcaster airs content that an administration dislikes, the FCC can use the threat of a news distortion investigation to influence future broadcasts. As the Supreme Court has explained, the existence of discretion on the part of a regulator can intimidate parties into censoring their own speech out of fear of the possibility of retaliation, even if that speech is protected by the First Amendment.[13]

To illustrate the point, in 2020 Free Press filed a petition with the FCC requesting an investigation into coverage of COVID-19, in particular alleging that broadcasters across the country had been airing false or misleading information about the pandemic.[14] Though the petition alleged violations of the broadcast hoax rule, which slightly differs from the news distortion analysis considered here, it highlights the same issue. Then-Chairman Ajit Pai immediately dismissed the petition, stating that:

[W]e will not second-guess broadcasters (much less deploy the formal investigative power of the state against them) that are serving a critical function in providing the public comprehensive coverage of the current public health crisis and the government’s response. We leave to the press its time-honored and constitutionally protected role in testing the claims made by our political leaders—as well as those made by national advocacy organizations.[15]

Just three years later, the Media and Democracy Project filed a petition to deny a license renewal for a Fox News affiliate due to its coverage of the 2020 presidential election.[16] Under the Biden Administration, the petition remained active at the FCC for over a year and was only denied when tied together with a variety of news distortion complaints from conservative groups, which were filed and dismissed within three months.[17]

The outcome of news distortion complaints should not depend on the party in power. While it may be appealing for various interest groups to invoke the rule, they should consider that when political winds shift, these types of rules can just as easily be used against them.

Removing the News Distortion Rule Promotes Competition

Finally, both Congress and the Commission have continually stressed the importance of local broadcasting. Because of the nature of the technology, broadcasting tends to focus more on local stories and audiences than on other television options, but local broadcasting has struggled in recent years largely due to the competition from internet-based alternatives. Removing the rule, as well as the threat of long, drawn-out investigations into how a broadcaster chooses to air the news, will make it easier for broadcasters to compete with these alternative technologies, especially if the Commission continues to deregulate in other areas to ensure that broadcasters can deliver the content that consumers want to see.

 

[1] Jeffrey Westling is the Director for Technology & Innovation Policy at the American Action Forum. These comments represent the views of Jeffrey Westling and not the views of the American Action Forum, which takes no formal positions as an organization.

[2] FCC Establishes MB Docket No. 25-73 and Comment Cycle for News Distortion Complaint Involving CBS Broadcasting Inc., Licensee of WCBS, New York, NY, Public Notice, DA 25-107 (Feb. 5, 2025 MB); Center for American Rights, Petition to Condition Grant by the Center for American Rights, MB Docket No. 24-275 (filed Dec. 16, 2024).

[3] Comments of National Association of Broadcasters, MB Docket 25-73 p.10 (Mar. 7, 2025), https://www.fcc.gov/ecfs/document/10307109522139/1.

[4] Section 309 directs the Commission to determine whether an application for a license would serve the public interest, convenience, and necessity. 47 U.S.C. § 309(a).

[5] Joe Kane, “The Role of Markets in Spectrum Policy,” R Street Policy Study No. 146 p. 2 (June 2018), https://www.rstreet.org/wp-content/uploads/2018/06/Final-No.-146-for-posting.pdf.

[6] Jeffrey Westling, “Rivalrous Regulators: Historical Analysis of the Dual Agency Approach to Spectrum Management,” R Street Policy Study No. 241 p. 2 (Oct. 2021), https://www.rstreet.org/wp-content/uploads/2021/10/4Oct21_RSTREET241.pdf.

[7] See Red Lion Broadcasting Co. v. Fed. Comm. Comms’n., 357 U.S. 367 (1969).

[8] 47 U.S.C. § 326.

[9] “Statement of Commissioner Bellows before the League of Women Voters,” 1st Annual Report of the Federal Radio Commission to Congress p. 6 (July 1, 1927). https://www.fcc.gov/document/1st-annual-report-federal-radio-commission-congress-1927.

[10] “News Platform Fact Sheet,” Pew Research Center ( Sept. 17, 2024), https://www.pewresearch.org/journalism/fact-sheet/news-platform-fact-sheet/.

[11] See Jeffrey Westling, “The FCC’s News Distortion Rules Highlight Need for Updates,” American Action Forum (Oct. 8, 2024), https://www.americanactionforum.org/insight/the-fccs-news-distortion-rules-highlight-need-for-updates/.

[12] Charles L. Bonani, “Weapons of Mass Distortion: Applying the Principles of the FCC’s News Distortion Doctrine to Undisclosed Financial Conflicts of Interest in Corporate News Media’s Military Coverage,” 27 Washington and Lee J. of Civil Rights and Social Justice 231, 237 (2020), https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1509&context=crsj.

[13] City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988); see also Comments of Brent Skorup and Melody Calkins, In the Matter of Modernization of Media Regulation Initiative, MB Docket No. 17-105 (Aug. 4, 2017), https://www.mercatus.org/research/public-interest-comments/matter-modernization-media-regulation.

[14] Free Press Emergency Petition for Inquiry Into Broadcast of False Information on Covid-19 (Mar. 26, 2020), https://www.freepress.net/sites/default/files/2020-03/free_press_petition_for_inquiry_to_fcc_re_broadcast_misinformation.pdf.

[15] Letter from the Federal Communications Commission to Free Press, FCC denies Emergency Petition filed by Free Press seeking an inquiry into broadcasters’ alleged airing of false information related to the Coronavirus (COVID-19) pandemic, 35 FCC Rcd. 3032, 3036 (Apr. 6, 2020), https://docs.fcc.gov/public/attachments/DA-20-385A1.pdf.

[16] Petition to Deny, Application of FOX Television Stations, LLC for Renewal of License of WTXF-TV, Philadelphia, Pennsylvania, LMS File No. 0000213362 (July 2023).

[17] Todd Spangler, “Outgoing FCC Chair Dismisses Complaints Against TV Stations That ‘Seek to Weaponize’ agency: ‘The FCC Should Not Be the President’s Speech Police,’” Variety (Jan 16, 2025), https://variety.com/2025/tv/news/fcc-chair-dismisses-tv-station-complaints-weaponize-first-amendment-1236275848/.