What Trump Can And Can’t Do To Bully Broadcasters Over Negative Coverage

President Trump’s latest threat against NBC for negative coverage was classic Trump: a frightening broadside against essential American freedoms that nonetheless ignores — almost comically—the basic workings of the government.

Telecommunications law experts and veterans of the Federal Communications Commission told TPM Wednesday that Trump’s suggestion for how NBC could be punished for “Fake News” is a long shot, legally speaking, but also troubling in its implications.

“When the President is attacking the media criticism and threatening legal action, because he doesn’t like what they’re broadcasting, it’s obviously a great concern and raises serious questions of First Amendment values and relationships with the free press. But as a legal matter, it’s an empty threat,” said Andrew Jay Schwartzman, an expert in telecommunications law at Georgetown University Law Center.

In a tweet Wednesday, which appeared to be in response to an NBC report on comments Trump made at Pentagon meeting about nuclear weapons, Trump mused that the broadcaster’s licenses should be challenged, seeming to reference a process overseen by the FCC, an independent commission. In theory, Trump seemed to hint at a major financial penalty for the broadcaster in the form of putting its ability to operate its stations into question.

With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!

— Donald J. Trump (@realDonaldTrump) October 11, 2017

“The potential threat of the government actually revoking their licenses would be economically catastrophic. It’s not going to happen, but that is a major threat and I think a serious and disturbing one,” said Mark Feldstein, a University of Maryland journalism professor and author of “Poisoning the Press: Richard Nixon, Jack Anderson, and the Rise of Washington’s Scandal Culture.”

There are a number of reasons Trump’s ideas about punishing NBC are, from a practical matter, unworkable.

First off, NBC itself as a broadcast network isn’t licensed by the FCC. NBC’s potential vulnerability would come as the owner and operator of 28 individual local stations, including its Telemundo station

(There are also dozens of NBC affiliates that NBC does not own and thus does not hold the licenses to.)

Second, the FCC license renewal process Trump suggested could be used to retaliate against NBC occurs every eight years. According to experts, it’s basically a rubber stamp and stations’ licenses are almost always renewed, though citizens in the localities of a station can technically challenge a license, as can a station’s competitors, if the station is doing competitive harm. To challenge NBC’s licenses, someone would have to do so in each of the individual local communities and they would face an uphill battle, legally speaking, especially after the deregulation that occurred starting with the Reagan administration.

“There are a couple of oddball cases involving smaller broadcasters, where they’ve gotten in trouble and not gotten their licenses renewed, but never about programming. No significant broadcaster of any size has ever lost a license renewal,” Schwartzman said

The next cycle of license renewals will not start until 2019, according to Schwartzman, and though technically, the FCC can also revoke licenses mid-term, the legal bar is even higher in that scenario.

The White House did not respond to TPM’s request for comment.

Trump’s glossing of the procedural issues aside, the tweet raised concerns about how he views the independence of the FCC, and his opinions about the freedom of the press more generally. Though its commissioners are appointed by the President, the FCC is an independent entity, meaning the President can’t direct it to take certain actions, the way he can agencies of the executive branch.

Nevertheless, there is a certain amount of sensitivity when it appears that a President may be trying to influence the commission’s decisions. When President Obama merely made public his views on net neutrality, the FCC chairman at the time, Tom Wheeler, caught flack from GOP lawmakers. And then there’s the notorious case of Richard Nixon’s secret desires to block license renewals for TV stations associated with the owners of the Washington Post, which was reporting aggressively on the Watergate scandal. Cronies of his attempted to challenge such licenses, but were ultimately unsuccessful.

“[President Trump] can’t override the decisions of the FCC,” said former Democratic FCC Commissioner Michael Copps, who is now a special adviser to the government transparency group Common Cause. He pointed out, however, that a majority of the commissioners currently are Republican. “You worry about the opportunity of him to influence those people. Of course, they will always deny that, but it’s a pressure,” Copps said.

A spokesman for FCC did not return TPM’s request for comment. One of the commission’s Democrats tweeted in a response to Trump’s tweet “Not how it works” along with a link to the FCC’s broadcasting manual.

Not how it works.

See here: https://t.co/1JgiJyk5wK https://t.co/1aNpYsk7BG

— Jessica Rosenworcel (@JRosenworcel) October 11, 2017

Freedom of the press is a cornerstone of our democracy. Hope my @FCC colleagues can all be on the same page with respect to 1st Amendment. https://t.co/1aNpYsk7BG

— Jessica Rosenworcel (@JRosenworcel) October 11, 2017

Regardless of whether Trump’s threat results in any consequential actions by the FCC, it might have a chilling effect, not just on NBC and other big networks, but also “over whatever remains of small and independent stations who might be disposed to sometimes to take a stand that the president doesn’t approve of it,” Copps said.

“They don’t have the resources or the lobbying impact that NBC or Fox or something like this. They’re little bitty players out there,” Copps said.