ABC Pushes Back On FCC’s Justification For Early License Renewal Order, Highlights ‘Substantial Evidence’ Of Trump ‘Retaliatory Motive’
ABC responded to the FCC‘s justification for calling in its eight owned station licenses for early renewal, arguing in a new legal filing that the agency had failed to refute “substantial evidence” of a Trump administration “retaliatory motive.”
The network filed a First Amendment lawsuit against the FCC in August, claiming that its rare order that the stations’ licenses be reviewed early was part of an effort to chill its speech, citing statements made by President Donald Trump attacking its news coverage and late-night host Jimmy Kimmel, and warnings from FCC Chairman Brendan Carr, who was appointed by the president.
The FCC is seeking to dismiss the lawsuit, arguing, among other things, that its early renewal order was tied to an investigation of Disney’s diversity, equity and inclusion practices. ABC is seeking an injunction to halt the early renewal proceeding.
U.S. District Judge Loren L. AliKhanhas has set a hearing for Oct. 6.
In its filing, ABC’s legal team wrote that FCC officials “again improperly conflate the nature of Plaintiffs’ retaliation claims with the underlying substance of the early license renewal proceeding.”
ABC does “not ask this court to determine whether there was any violation of FCC rules. Instead, plaintiffs contend that the commission initiated the early renewal proceeding to retaliate against plaintiffs in violation of the First Amendment. And defendants have not legitimate expertise on that issue.”
The network’s legal team wrote, “The Commission ordered an unprecedented early license renewal proceeding to punish Plaintiffs for media coverage that the Administration dislikes. Defendants do not—and cannot—dispute that the First Amendment prohibits the government from exercising its regulatory powers to retaliate against a media organization for disfavored speech. And nothing in their brief refutes the substantial evidence of Defendants’ retaliatory motive.”
In complaining about network content, Trump has called for the revocation of ABC’s licenses and that of other broadcasters.
The network’s lawyers contend that the FCC offers “no response” to Carr’s own “statements indicating that he will use the early license renewal proceedings to review” ABC’s editorial decisions, including its decision not to broadcast Trump’s presidential address in July.
As for the DEI investigation, the network’s legal team argued that in response to a routine discovery dispute, the agency ordered the license review, an “unprecedented proceeding” that is the “broadcaster equivalent of the death penalty.” The first of the ABC licenses was not scheduled to come up for renewal until 2028.
Carr has launched multiple investigations of the broadcast networks, but has issued few if any actual sanctions or resolution. The network’s brief said that the regulatory threat has continued to have a “chilling effect,” noting that last week, Kimmel’s “interview of Texas candidate for U.S. Senate James Talarico was made available on YouTube rather than as part of the normal broadcast, with Kimmel specifically citing the FCC’s retaliatory campaign against Plaintiffs as the reason for this decision.”
Carr has said that he is enforcing an equal time rule that doesn’t prevent network talk shows from featuring candidates; they just may be on the hook for providing time to those candidates’ rivals. An FCC spokesperson did not immediately respond to a request for comment.
Several groups have filed amicus briefs in support of ABC, including the Foundation for Equal Rights and Expression, and another amicus brief from a group of former FCC chairmen, commissioners and staffers. They include Dennis Patrick, chairman under President Ronald Reagan: Al Sikes, chair under George H.W. Bush; and Tom Wheeler, chair under Barack Obama.
Their brief argued, “Woven throughout the Chairman’s specific retaliatory actions are broad threats and ominous warnings to the entire media ecosystem. Invoking a deliberately vague notion of licensee’s ‘public interest obligations,’ the Chairman has created a regulatory regime in which any broadcaster, including ABC, can be found guilty of transgressions at any time for seemingly any thing. The effect is an unconstitutional chilling of the broadcast press.”
More to come.
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