Disney's ABC Sues FCC And Can Lean On Decades Of Deregulation

Disney’s ABC TV stations sued the Federal Communications Commission last week, pre-emptively looking to halt the Commission’s attack on ABC’s licenses to broadcast TV. The present threats to revoke ABC’s licenses follow decades of mostly Republican-led efforts to diminish the federal government’s ability to do exactly what the FCC now seems to want. The Disney/ABC action seems like an inevitable next step in a fraught regulatory environment for major media companies and especially their broadcast operations since the outset of the second Trump Administration. In its complaint, Disney claims that “the Administration has waged a retaliatory campaign against ABC for a single reason: it disapproves of what ABC broadcasts.” The specific FCC actions involve an accelerated timetable for reviewing ABC’s broadcast licenses, without which a broadcaster literally cannot broadcast. Disney argues that the FCC’s decision to start these administrative proceedings is aimed at what is calls “ the Commission’s true purpose: coercing and retaliating against a network that refuses to bow to the Administration’s demands.” No matter how one views the specific legal merits of this lawsuit and the extent or limitations of the FCC’s authority, it should go without saying that is no greater “nuclear” option in the government’s regulatory arsenal than to halting a broadcaster’s ability to broadcast. Disney has staked its claim on the first amendment, and sees all of this as an effort to inhibit its ability to make editorial content decisions. Disney lays out in great detail a series of intimidation tactics from the Administration and the FCC, all related to the content of the news and entertainment programming finding disfavor with the Administration. This includes the notorious suspension of late-night host Jimmy Kimmel by Disney itself, seemingly in response to pressures exerted by the Administration. Most pointedly, as the complaint lays out, President Trump, in direct response to ABC’s recent decision not to broadcast a Trump prime time address, stated: “NBC and ABC fake news have both said that they would not cover this speech . . . . [T]his should mean a revocation of their licenses.” It’s pretty hard to argue that anything other than the content of ABC’s speech is the focal point for the Administration.

The revocation of a broadcaster’s license is an extraordinary remedy, and the FCC has exercised it in extraordinarily rare circumstances. Among the handful of situations in which such revocation ever occurred were three cases that date back to the 1960s. An Alabama station WLBT-TV lost its broadcast license in the 1960s based on an extensive track record of racial discrimination. But the FCC actually sought to extend the broadcaster’s license in this case. It took an activist Supreme Court and a new process that permitted community involvement to overturn that decision and pave the way for the station’s license revocation. The FCC spent over 20 years fighting RKO General over the revocation of that company’s 14 broadcast TV licenses.