Today a bipartisan coalition of former high-ranking Federal Communications Commission (FCC) officials filed an amicus brief supporting ABC’s request for emergency relief in its lawsuit challenging the FCC’s early review of the network’s broadcast licenses. The former FCC officials, who have served under every President from President Reagan to President Biden, say they are filing this brief after “hav[ing] watched with growing alarm as the agency they once stewarded has unleashed a wide-ranging campaign to bring an independent press to heel.”

The coalition argues that current FCC Chairman Brendan Carr has engaged in a pattern of misconduct “bear[ing] three hallmarks: It is retaliatory; it requires invoking FCC regulatory power beyond the boundaries set by law, regulation, and historical agency practice; and it is calculated to evade judicial review.” 

ABC’s case is the first in which a federal district court will consider a First Amendment claim brought against Carr’s FCC—a test the coalition says is long overdue, and one it argues the court should resolve quickly given how far the current proceeding has already gone. The case is before Judge Loren AliKhan in the U.S. District Court for the District of Columbia, who has scheduled a hearing for October 6.

In July, a number of former officials from this coalition publicly opposed the early renewal proceeding, calling it “an assault on free speech disguised as regulatory process.” They warned that Chairman Carr’s actions signal to other broadcast companies that they, too, risk losing their licenses if they broadcast speech the President doesn’t like. The coalition has grown since that July filing to 18 former FCC officials, signalling bipartisan concern over Carr’s conduct is building among Democrats and Republicans alike as the midterms approach.

Their concerns were confirmed just last week, when Jimmy Kimmel announced that his interview with Texas Senate candidate James Talarico would not air on broadcast television, citing the FCC’s ongoing threats against ABC. Talarico, a Democratic state representative, is challenging Republican Attorney General Ken Paxton in one of the most closely watched Senate races in the country. It is difficult to imagine a greater injury to core First Amendment speech than regulatory action keeping candidates off the air during election season. 

“In this entire group’s combined decades at the FCC, there was never any discussion of using an early renewal proceeding to launch an investigation, as the agency has done against ABC,” said Al Sikes, a Republican who served as Chairman of the FCC from 1989 to 1993. “Licensing power was never intended to serve as a political weapon against a network for coverage the administration dislikes.”

“The First Amendment is not some courtesy the FCC can extend to broadcasters when it feels like it. It’s a fundamental right that has kept the government from retaliating against the press since our country’s founding,” said Tom Wheeler, a Democrat who served as Chairman of the FCC from 2013 to 2017. “Carr has spent his tenure testing how far he can push the limits before someone stops him. ABC’s case is the chance to draw that line and defend the free press the First Amendment was written to protect.”

The petitioners are represented by counsel at Protect Democracy and TechFreedom, as well as Andrew Jay Schwartzman and Gigi Sohn.

“This is no ordinary regulatory dispute; it’s an attempt to shape what voters see and hear before they arrive at the ballot box this November,” said Rachel Goodman, Special Counsel at Protect Democracy. “Every week this proceeding drags on is another week broadcasters’ coverage of the administration can be chilled by the threat of government retaliation. ABC’s case is the chance to stop it. The midterms won’t wait for Carr to finish playing games.”

“Justice delayed is justice denied, and nowhere is that more true than when free speech is threatened,” said Berin Szóka, President of TechFreedom. “The Supreme Court has held, nine times, that the ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ If a district court declines to exercise jurisdiction to stop Carr’s abuse of power now, the FCC will run roughshod over the First Amendment for years.”

Signatories

Kathryn C. Brown 

Rick Chessen

Rachelle B. Chong 

Michael J. Copps

Ervin Duggan

Jerald N. Fritz

Rosemary Harold

Diane Hinson

Peter Hyun

William T. Lake 

Blair Levin

Ruth Milkman 

Dennis R. Patrick 

Peter Pitsch

Alfred C. Sikes

Gloria Tristani 

Thomas E. Wheeler 

Christopher J. Wright