A few weeks ago, Paramount, which owns CBS, announced that it would pay $16 million to settle a laughable lawsuit in which President Donald Trump claimed the network had committed consumer fraud by editing a pre-election interview with former Vice President Kamala Harris to make her seem “less dumb.” It was a striking surrender, especially since CBS had accurately described Trump’s claims as “completely without merit.” But Brendan Carr, the Trump-appointed chairman of the Federal Communications Commission (FCC), insisted that the settlement had nothing to do with his agency’s review of Paramount’s pending merger with Skydance Media.
On Thursday, the FCC announced that it had approved that $8 billion business deal. By Carr’s account, the timing of that decision was entirely coincidental. But FCC Commissioner Anna Gomez, a Joe Biden appointee, had a different take.
“I cannot support this order approving this transaction in light of the payout and other troubling concessions Paramount made to settle a baseless lawsuit,” Gomez said in her dissent. “After months of cowardly capitulation to this Administration, Paramount finally got what it wanted. Unfortunately, it is the American public who will ultimately pay the price for its actions. In an unprecedented move, this once-independent FCC used its vast power to pressure Paramount to broker a private legal settlement and further erode press freedom.”
In addition to its suspicious timing, the FCC’s approval of the Paramount/Skydance deal was contingent on concessions regarding CBS news coverage. Those constitutionally questionable conditions confirm that Carr is determined to curb freedom of the press by asserting government control over the content of broadcast journalism.
“This has been an unconstitutional shakedown from start to finish,” said Will Creeley, legal director at the Foundation for Individual Rights and Expression. “Per the First Amendment, federal law, and longstanding precedent, the FCC has no business dictating the editorial choices of media outlets or conditioning merger approval on the viewpoints a network chooses to air….No federal bureaucrat should ever be allowed to play-act as our nation’s editor-in-chief.”
Paramount needed the FCC’s approval for the merger because it entailed the transfer of broadcast licenses held by CBS-owned stations. Under the Communications Act of 1934, the question was whether those transfers were “consistent with the public interest, convenience, and necessity.” As Carr sees it, that standard requires assurances that licensees will cover the news in a way that he deems fair, accurate, and balanced.
“Americans no longer trust the legacy national news media to report fully, accurately, and fairly,” Carr said in a press release. “It is time for a change. That is why I welcome Skydance’s commitment to make significant changes at the once storied CBS broadcast network.”
In particular, Carr said, “Skydance has made written commitments to ensure that the new company’s programming embodies a diversity of viewpoints from across the political and ideological spectrum. Skydance will also adopt measures that can root out the bias that has undermined trust in the national news media. These commitments, if implemented, would enable CBS to operate in the public interest and focus on fair, unbiased, and fact-based coverage. Doing so would begin the process of earning back Americans’ trust.”
Skydance also agreed to “have in place an ombudsman who reports to the President of New Paramount, who will receive and evaluate any complaints of bias or other concerns involving CBS.” It says “New Paramount’s executive leadership will carefully consider any such complaints in overseeing CBS’s news programming.” Carr’s press release also touted that concession, which he said will “promote transparency and increased accountability.”
Carr, in other words, thinks it is entirely appropriate for federal regulators to demand “significant changes” in the way news organizations operate, including what they cover, how they cover it, the sources they interview, the people they invite to comment on current events, and the way they respond to complaints of bias. He is explicitly setting the FCC up as an arbiter of good journalism.
That power grab is consistent with Carr’s understanding of the government’s role in the marketplace of ideas, which he thinks should include restricting the editorial discretion of social media platforms in the name of “reining in Big Tech” and preventing “discrimination against core political viewpoints.” Carr, an avowed free speech champion, presents his concerns about broadcast news bias in similar terms, saying “a handful of national programmers” should not “control and dictate to the American what the narrative is, what they can say, what they can think.” As with his vendetta against “Big Tech,” he perversely portrays government interference with private editorial decisions as a victory for freedom of speech.
Contrary to that puzzling take, FCC oversight of broadcast journalism does not protect First Amendment rights; it undermines them. Such meddling would be obviously unconstitutional in the context of print, cable, satellite, streaming, or online journalism. For reasons that make less and less sense every day, broadcasting is treated differently, supposedly because government licensing and regulation are necessary to address “the scarcity of radio frequencies.”
That rationale never made much sense. “The fact that only a finite amount of spectrum use was allowed for traditional broadcasting, without more, did not require intrusive regulation,” John W. Berresford, an attorney in the FCC’s Media Bureau, noted in a 2005 paper. “Merely an allocation system, defining and awarding exclusive rights to use certain frequencies, would have sufficed to ‘choose from among the many who apply.'”
Berresford added that the scarcity rationale “appears to be based on a fundamental misunderstanding of physics” and “ignores basic principles of resource allocation,
recent field measurements, history, the progress of technology, and economics.” He argued that the scarcity rationale, “if it ever had validity, is invalid in today’s media marketplace,” given “the explosion in the number of distribution networks and channels, both via radio and other media—more traditional broadcasters, cable television, DBS, DARS, Internet, WiFi and WiMax—and in the mass of content that fills them.”
That was 20 years ago. Although developments in technology and mass media since then have only reinforced Berresford’s argument, the government still treats broadcast speech differently from speech in every other medium. But even the fiction that broadcasting is special in a constitutionally relevant way goes only so far in authorizing regulatory intervention, as the FCC itself concedes.
The agency notes that it has only “narrow” authority to “take action on complaints about the accuracy or bias of news networks, stations, reporters or commentators in how they cover—or sometimes opt to not cover—events.” Why is that? “The agency is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press,” the FCC explains. “Those protected rights include, but are not limited to, a broadcaster’s selection and presentation of news or commentary.” Yet it is precisely such decisions that Carr is avowedly trying to shape.
Why does Carr think “the legacy national news media” are failing to serve “the public interest”? The complaints that the FCC considered while mulling the Paramount/Skydance merger provide some clues.
The Center for American Rights (CAR), which the FCC describes as “a non-profit, non-partisan, public-interest law firm that represents consumers of broadcast media,” criticized CBS News for “its treatment of Republican J.D. Vance during the 2024
Vice Presidential debate” and for “its editing of an answer by then-Vice President Harris in an interview on an important topic of foreign policy during an episode of the news program ’60 Minutes.'” Yes, that is the same interview that provoked the lawsuit in which Trump risibly averred that CBS had cost him at least $20 billion by making Harris sound slightly more cogent—the same interview that Carr thought justified an investigation of CBS for “broadcast news distortion.”
CAR also cited a Media Research Center report “concerning negative media coverage of the Trump administration.” CAR said that report “confirms that the news media generally, and CBS News in particular, is relentlessly slanted and biased.” It argued that “Commission action is necessary to condition the Transaction on an end to this blatant bias.”
That is in fact what the FCC ended up doing. Although the FCC concluded that CAR was not “a party in interest with standing to file a petition to deny the Transaction,” Carr and CAR are on the same page. He perceives the same anti-Trump, anti-Republican, anti-conservative bias that CAR decried, and he is explicitly wielding his regulatory powers to correct it.
“The Paramount payout and this reckless approval have emboldened those who believe the government can—and should—abuse its power to extract financial and ideological concessions, demand favored treatment, and secure positive media coverage,” Gomez complained. “It is a dark chapter in a long and growing record of abuse that threatens press freedom in this country.”
You might take Gomez’s criticism with a grain of salt, since she is a Democrat on a Republican-controlled commission. You might also note that she was appointed by a president who had no compunction about interfering with constitutionally protected editorial decisions by demanding the suppression of online “misinformation.” But neither observation should obscure the point that Gomez happens to be right.
