Will the FCC’s ‘public interest’ standard limit broadcast free speech?

Absent any action in the coming 119th Congress, which seems unlikely, the FCC under Chairman Carr can and should articulate a set of public interest principles that can be applied to broadcasting with greater transparency and consistency.”

Stuart N. Brotman, a senior fellow at The Media Institute

President-elect Trump has announced his intention to nominate Brendan Carr, a Federal Communications Commission (FCC) commissioner, to become the agency’s chairman after a quick Senate confirmation process in early 2025.

Carr responded on social media, proclaiming, “We must dismantle the censorship cartel and restore free speech rights for everyday Americans.”

In a later post, he added, “Broadcast media have had the privilege of using a scarce and valuable public resource — our airwaves. In turn, they are required by law to operate in the public interest. When the transition is complete, the FCC will enforce this public interest obligation.”

Two core principles were established with the Communications Act of 1934 (which has been amended periodically and remains the charter for broadcast television today).

First, Congress prohibited common carriage for broadcasters and mandated a government-controlled, short-term licensing regime that assigned broadcasters to designated channels in the electromagnetic spectrum. Second, to justify this exclusionary zoning policy, Congress also required that broadcasters act as trustees of spectrum on behalf of all the others who were kept off the airwaves by the government. As guardians of a scarce and publicly owned resource, broadcasters must operate in the “public interest, convenience and necessity.”

The legislative history of its predecessor, the Radio Act of 1927, does not explain the origins of the broadcast public interest standard. One explanation is that when the drafters of the Radio Act reached an impasse in their attempt to define a standard for the FCC, a young lawyer on loan to the Senate from the Interstate Commerce Commission suggested the words “public interest, convenience and necessity” — the standard used in the Interstate Commerce Act that created the Interstate Commerce Commission. The drafters agreed.

The Communications Act of 1934 incorporated virtually all of the 1927 Act’s regulatory structure as it related to broadcasting. However, the “public interest, convenience and necessity” received no definition. Instead, the 1934 Act delegated implicit authority to the FCC to interpret these obligations. This led some courts and commentators to argue that a more precise definition was necessary for the government’s licensing powers to be constitutional.

Although the FCC has relative freedom to regulate under the broadcast public interest standard, it is restricted from censorship or interfering with free speech under the Constitution’s First Amendment.

The FCC has said that “our general mandate … calls for consideration of other factors and a balancing of all relevant factors by this Commission in assessing the public interest.” It has further clarified that the statutory duty to broadcast in the “public interest” imposed on licensees has an obligation to be sensitive to problems of public concern in the community and to make sufficient time available for a complete discussion of such issues on a non-discriminatory basis.

The courts and the FCC have noted that “public interest” implies a balance of all relevant factors that the agency should consider. However, the FCC and the courts have failed to build a body of precedent to imbue the public interest standard with a concrete, durable meaning.

This decades-long lack of clarity calls for more focused legislative attention to what decisional guidance should be delegated to the FCC. Absent any action in the coming 119th Congress, which seems unlikely, the FCC under Chairman Carr can and should articulate a set of public interest principles that can be applied to broadcasting with greater transparency and consistency.

Only then can any pledge to pursue greater enforcement of violators be accepted as something more than mere political retribution, which Trump threatened repeatedly during his campaign. He proclaimed, “Commissioner Carr is a warrior for free speech”

Carr will now be able to demonstrate why he has earned that accolade. He can help lessen the palpable anxieties of broadcasters who fear that their futures as FCC licensees may be rocky if the “public interest” becomes a free speech cudgel instead of an enduring civic ideal.

Stuart N. Brotman is a distinguished senior fellow at The Media Institute, where he also serves on the Institute's First Amendment Advisory Council and is an adviser to The Madison Project (https://www.mediainstitute.org/the-madison-project/). He is an elected member of the American Law Institute and the author of “The First Amendment Lives On.”