The Trump FCC’s regulatory guile

The first 19 months of the Trump Federal Communications Commission (FCC) have changed the nature of the agency. For most of its history, the FCC was a policy-driven body existing in an inevitably political environment. Under the Trump administration, it has become a politics-driven agency employing policy as an instrument.

Once an independent agency accountable to Congress, the FCC lost that independence when President Donald Trump issued an executive order requiring the FCC and other formerly independent agencies to submit to White House supervision. The agency subsequently deleted the word “independent” from its website description. Confirming his agency’s new lack of independence, Chairman Brendan Carr testified to Congress, “The FCC is not an independent agency, formally speaking.”

How the no-longer independent agency has exercised its new role is distinctly Trumpian.  

Consider, for instance, two recent actions of the commission. Both actions use regulatory authority to influence media coverage so it is favorable to the president. Both were explained to the public behind a “public interest” smokescreen.

On April 28, the Trump FCC broke with over 50 years of precedent to order The Walt Disney Company’s eight ABC-owned television stations to prematurely apply for renewal of their local broadcast licenses. Trump has been vociferous in his complaints about ABC’s coverage and has repeatedly called for the FCC to revoke local licenses held by ABC. The smokescreen was the asserted need to investigate whether the stations were complying with their public interest obligations regarding diversity, equity and inclusion (DEI). Carr has provided no evidence that ABC violated any law, nor has the Trump FCC adopted any broadcast rule governing DEI practices.

On Aug. 6, the FCC voted 2-1 along party lines to repeal the 39% national television ownership cap established by Congress. To advance the administration’s ability to choose winners and losers under the new rule, the decision authorized the agency to determine who is worthy on a case-by-case basis.

While the ABC action was an effort to coerce favorable coverage, this decision smacks of favoritism to Trump allies. It, too, hides behind a smokescreen; this time, the claim is that online streaming is hurting the ability of broadcasters to afford to deliver local news and thus they must be allowed to expand. Not surprisingly, the first beneficiary had been selected, Trump-friendly Nexstar Media, which, by acquiring Tegna, Inc., would double its national reach to approximately 80% of American homes.

The guile of these decisions is passing off such blatantly political moves to influence what the American people see on television as protecting the “public interest.” Both actions do fulfill, however, the not-so-subtle warning the agency issued to broadcasters in a May 2026 public notice that it “will not hesitate to exercise its statutory authority to ensure that broadcasters either fulfill their public interest obligation or provide the privilege of being a broadcast licensee to someone that will fulfill that duty.”

The ABC license renewals

On Aug. 18, ABC, its parent The Walt Disney Company, and the eight licensees filed suit in the District Court for the District of Columbia seeking an injunction against the FCC’s early license review on First Amendment grounds. It is a highly unusual action precipitated by the FCC’s highly unusual demand that the company file for early license review.

There are eight television licenses in question (Durham, Chicago, Houston, Los Angeles, San Francisco, Fresno, New York, and Philadelphia). These licenses, like all such licenses, have an eight-year term. The shortest time remaining in any of the licenses is Durham, which still has two and a half years to run. The average time remaining in the licenses is four years and three months.

The call for early renewal is in itself prejudicial, ABC argues. The complaint asserts there are only three things that can happen to the licenses in this review: (1) they are renewed (ABC argues the commission cannot lawfully do at this premature stage), (2) the FCC denies the renewals (thus fulfilling the president’s demand), or (3) they could be subjected to the endless purgatory of an ongoing investigation (equivalent to a sword of Damocles hanging over the heads of licensees if the network’s programming displeases the president). The suit argues that since renewal at this time is beyond the authority of the agency, the proceeding can only have a chilling effect on the programming of the ABC network.

It also appears that the DEI smokescreen is wearing thin. When ABC chose not to cover the president’s July 16 address on election security, Trump during the address called for the revocation of the licenses. The following day, Carr pierced the DEI smokescreen when he said the commission’s renewal review will include the decision not to carry the speech.

The broadcast reach cap

In the Telecommunications Act of 1996, Congress raised the cap on the reach of a broadcast group from 25% to 35% of television households. The purpose of this cap was to protect the diversity of voices necessary for democracy to function. That same act also mandated that the FCC review on a biennial basis the broadcast rules “adopted pursuant to the Act.” In 2003, the FCC’s biennial review raised the ownership cap to 45%.

Congress was not happy with the 45% cap and stepped in. The Consolidated Appropriations Act of 2004 changed the biennial review to a quadrennial review and expressly provided that such review does not apply to the 39% cap. Carr contends that Congress only prohibited the FCC from changing the cap through the quadrennial review process, that the agency’s ability to change it through a separate rulemaking was unaffected. For over two decades, the cap has stayed at 39%. While there have been back-and-forth efforts to adjust the cap’s calculation by discounting the viewers of UHF stations, the cap itself has remained unchanged. The recent decision on broadcast ownership eliminates the clear rule that previously applied to all transactions and replaced it with the vagueness discretion.

The Nexstar-Tegna transaction was endorsed by Trump on Truth Social as “more competition against THE ENEMY, the Fake News National TV Networks.” Carr’s response left little doubt about his alignment with the president, posting on X, “President Trump is exactly right…Let’s get it done.”

The only trouble was that the transaction was illegal as it violated the ownership cap. The chairman had his media bureau solve that problem by granting Nexstar a waiver that allowed the transaction to proceed. The August 2-1 vote then attempted to eliminate the rule the bureau had already allowed Nexstar to exceed, replacing a uniform numerical limit with discretionary, case-by-case review. Opponents plan to ask the court to rule whether the August decision was legal considering the instructions from Congress.

The public interest, or the president’s interest?

The guile of these actions lies in the fact that, in the ABC matter, the FCC has failed to identify any alleged offense, while in the ownership cap matter, it replaced a clear numerical rule with discretionary review without meaningful standards. The result empowers the president and his commission majority to make politically based determinations.

Taking advantage of this, the ABC and ownership cap proceedings move toward the same political end. One places the licenses of a disfavored broadcaster under extraordinary scrutiny and jeopardy. The other removes an expansion barrier for a broadcaster the president has publicly embraced. One is regulatory punishment; the other is regulatory privilege.

The danger is larger than either ABC or Nexstar. Threats to a station’s license can have the effect of influencing speech. The Trump FCC’s guile has been to carry out both operations using traditional communications policy language. “Public interest” was once about the obligation of broadcasters to serve their communities fairly and well. At the Trump FCC, this time-honored concept has been turned into a political weapon to serve the president’s interests.