ABC late-night host Jimmy Kimmel, on what is supposed to be a humorous show, said, “We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it.” This was not true, and he should have known it was not true.
It also wasn’t worthy of vague threats of government sanction. But the laws governing the Federal Communications Commission are broad enough that the agency can police almost any content in broadcast media in the “public interest.” If we believe that is not the sort of thing the government should be doing, then there is no reason for the FCC to exist.
The FCC exerts power over broadcasters by threatening to revoke their licenses. These licenses exist based on the legal fiction that the federal government owns the airwaves because broadcast frequencies are scarce. This scarcity logic does not apply to other scarce resources (i.e., nearly all resources), and there’s no reason for it to apply to broadcast frequencies. And while it was true in 1934 when the FCC was founded that broadcast frequencies were scarce, modern technology such as cable TV, satellite radio, and online streaming now means that broadcasting is effectively unlimited — and the FCC doesn’t regulate those newer technologies, where free speech reigns.
The laws have not caught up with the technology, and terrestrial radio and broadcast TV stations are still considered licensees of public property, overseen by the FCC. Because they are using public property, the government has the power to set rules about how that property is used, which it has done in various ways over the years.
It used to enforce the “Fairness Doctrine,” which was used opportunistically by the Kennedy and Johnson administrations to shut down conservative radio shows that opposed their agendas. The FCC repealed that rule under Ronald Reagan in 1987, which allowed the nationally syndicated Rush Limbaugh Show to launch the next year.
But the FCC can in theory use the same legal justification that undergirded the Fairness Doctrine to police any speech it wants. The Supreme Court ruled in 1969 that free speech by broadcasters can be limited, so long as those limits are in the public interest. What counts as the public interest is to a large extent up to the FCC to determine, subject to judicial review.
FCC Chairman Brendan Carr said after Kimmel’s comments, “We can do this the easy way or the hard way.” Broadcasters got the hint and announced they would be dropping Kimmel’s show from their stations. Defenders of the administration have since claimed that the broadcasters did so entirely on their own with no pressure from the government. But if you don’t want to be accused of practicing bullying government, it would help for government officials to not talk like bullies.
The FCC shouldn’t have this power because it shouldn’t exist. The government’s role in broadcast frequencies need not extend further than defining and protecting property rights, which can be done through ordinary courts and law enforcement. If one station owns a frequency, others shouldn’t be able to broadcast on it, for the same reason that the station’s headquarters building shouldn’t be able to be overrun by trespassers. The country doesn’t need a Federal Headquarters Buildings Commission, with political commissioners looking to flex their partisan muscles, to make sure that doesn’t happen.
The FCC is also charged with keeping prices low, which is not something government regulation does. For a while, it was doing the opposite by administering the Affordable Connectivity Program, which channeled $30 per month subsidies to internet service providers. Predictably, government subsidies raised prices. The program ended more than a year ago, and prices have come down as cable and wireless companies battle for customers.
During Covid, FCC Chairman Ajit Pai made excellent decisions to allow telecommunications companies to adapt to the stresses of the pandemic such as a sudden influx of people working from home and the mass adoption of online schooling. U.S. telecommunications infrastructure performed remarkably well during the pandemic. Nearly all of Pai’s decisions involved waiving normal regulations to get the government out of the way. If it made sense to effectively get rid of many of the FCC’s powers when times were tough, why are those powers necessary in ordinary times?
Another part of the FCC’s mission is expanding access to telecommunication technology. Americans are awash in more forms of telecommunication than anyone knows what to do with. Mission accomplished; wind it down.
Empowering so-called independent agencies with nebulous laws that cover vast swaths of American industry is an open invitation for abuse by politicians and bureaucrats. The FCC is no longer needed, if it ever was. Rather than fantasizing about using government power to punish the left, leaving open the invitation to be punished again when Democrats regain power, Republicans should foreclose the possibility of future suppression by shutting down the FCC.