UPDATED, with FCC comment: ABC said that the FCC’s demand for an early review of its broadcast station licenses was part of an “ongoing retaliation campaign” to punish the network over its news coverage and create a chilling effect on free speech.
In a filing made public on Thursday, the network’s legal team also warned that the FCC’s action — demanding an early review of the licenses for the network’s eight owned stations — reflected a wider effort to crack down on the media. The network’s filing identified multiple instances in which Trump has called for the network to lose its license.
“The retaliation against ABC is a signal to every media company in the country: accommodate the Administration’s view of what news coverage should look like or pay the price,” the network’s legal team wrote. “Across the government, regulatory and contracting carrots and sticks have been trained on disfavored speakers. The tools vary; the objective does not: a media industry too fearful of official reprisal to report the news freely.”
ABC’s filing cited instances of threats that Trump has made against the network over its news coverage and its handling of the 2024 presidential debate, and referred to other instances in which the administration has gone after other outlets and political opponents.
In April, FCC Chairman Brendan Carr, a Trump appointee, called for the network to apply for an early renewal of the station licenses, citing an investigation of the network’s diversity, equity and inclusion practices. Such an action is highly unusual, and the first of ABC station licenses were not set to expire until 2028.
Carr then opened up a public comment proceeding, with conservative groups like the Media Research Center and the Center for American Rights calling for the network’s licenses to be pulled. The deadline for responses, including from ABC, was on Wednesday.
The FCC chairman has not said when the agency will make a decision. But in a sign that the network has been preparing for a legal battle, it has recently retained Beth Wilkinson, who is part of the Paramount and Nexstar legal teams as they defend proposed mergers amid antitrust lawsuits brought by state attorneys general. Disney’s legal team is led by Horacio Gutierrez, chief legal and global affairs officer, and includes Paul Clement, the former solicitor general and Supreme Court lawyer, and Jennifer Tatel.
The network said that its stations “easily meet the standard for license renewal,” which is a showing that they operate in the public interest. The network has cited support from a range of community groups, press freedom organizations and former FCC chairs and top ranking officials, as well as conservative and free market groups like Americans for Tax Reform.
The network launched an ad campaign, urging viewers to weigh in with the FCC, warning that the agency is “questioning our commitment to the community.” More than 153,000 comments were submitted in the proceeding. ABC said that, based on an AI analysis of comments almost 86% of the tens of thousands of comments submitted to the FCC support renewal of the licenses, and another 10% objected to the FCC.
In its filing, the network’s legal team wrote that the FCC has “resorted to intimidation,” citing Carr’s previous warnings over a joke that late-night host Jimmy Kimmel told about the aftermath of the Charlie Kirk assassination. On Benny Johnson’s podcast, Carr chided Kimmel for the remark, and said, “We can do this the easy way or the hard way. These companies can find ways to take action on Kimmel, or there is going to be additional work for the FCC ahead.”
The ABC legal team wrote, “The FCC has spent the last 18 months searching for some pretext for revoking the Stations’ licenses. The Commission has found none, because the Stations easily meet the standard for license renewal—which under the law means that the Commission cannot revoke their licenses or order a hearing on their renewal applications.”
ABC said that the DEI investigation has found no violation, while even “if any violation were ever substantiated, the Commission has a graduated set of well-established remedies far short of the corporate death penalty of license non-renewal.” The network’s legal team warned that any FCC sanction over DEI would raise due process concerns, as the policies being challenged were encouraged by the FCC two years ago, when Joe Biden was president and Democrats held a majority on the commission.
Carr also has been investigating The View and whether it qualifies as a bona fide news program. That would make it exempt from the FCC’s Equal Time rule, which requires stations that feature political candidates to provide comparable time to rivals, if requested. The network also has pushed back on that proceeding, arguing that it received exemption guidance in 2002, and that the FCC was selectively enforcing the rule.
Among the groups also weighing in recently was the National Association of Broadcasters, which warned that the early renewals “will inevitably discourage investment in the broadcast industry.” They, too, contended that editorial decisions were constitutionally protected and outside the bounds of the agency’s authority.
A spokesperson for the FCC said, “For decades, Americans of all stripes have been subsidizing broadcast media to the tune of many billions of dollars by giving TV stations free use of a valuable, public resource—the airwaves. In exchange, broadcasters are required by law to operate in the public interest—not in the narrow or partisan interests of a political party.”
The spokesperson added, “Broadcasters know that they are prohibited from engaging in invidious forms of DEI discrimination, that they must comply with political equal opportunity regulations, and that they are barred from running broadcast hoaxes or distorting the news. The FCC is going to hold broadcasters accountable to the full extent of the law, regardless of any disinformation campaign that some of them may choose to run.”
Technically, the FCC licenses stations, not networks. During his tenure at the FCC, Carr has said that he wants to boost local stations in their leverage vis a vis the major networks, while defending his investigations into programming as within the bounds of the agency’s authority. He has cited the requirement that stations serve the public interest, a rather broad term that has invited complaints over the network’s news and other coverage.
In its petition to deny ABC station licenses, the Center for American Rights argued that the network show “a consistent and overt partisan bias to its programming over multiple shows.” Other arguments raised included that its stations run a “race and culture effort that intentionally brings an ideological agenda to local newsrooms and documentary shows.”
Among other things, they cited Kimmel’s political donations and partisan activity and claimed that he uses his show as a “propaganda platform to advance his personal political views.” They pointed to the partisan bent of his jokes and guests, as well as “his infamous 2024 pre-election plea to vote for Kamala Harris delivered nationwide over the airwaves, which would have cost millions of dollars if it had been classified as an advertisement rather than a show monologue.”
In the network’s filing, ABC’s legal team wrote that the agency has “repeatedly emphasized” that it has limited authority to act on content complaints. They noted that the agency long ago abandoned the Fairness Doctrine, which required stations to present varying points of view on issues of public importance. The FCC’s news distortion and broadcast hoax policies, ABC’s legal team said, are very narrow in scope.
While the petitioners calling for license revocations do not invoke the news distortion policy, the network’s legal team noted, “they nevertheless complain that ABC ‘routinely broadcasts misinformation, disinformation, and other fake news’ and that various ABC network programs aired too many ‘anti-Trump team reports,’ too much ‘positive’ coverage of Kamala Harris, and did not devote enough time ‘letting viewers know just how much Trump had reduced border crossings compared to his predecessor.’ But these are complaints about editorial balance—decisions about which stories to cover, which candidate to feature, and how much emphasis to give different topics—or editorial commentary.”
They added, “Denying the Stations’ renewals just because they aired ABC network programming that the Commission later deemed ‘DEI TV’ or too ‘anti-Trump’ would stretch the rule far beyond the First Amendment’s bounds.”
Anna Gomez, the sole Democrat on the FCC, said in a statement that a “small number of partisan voices tried to hijack this process into a referendum on a network they dislike, but the public refuses to let local stations become collateral damage in the FCC’s political games. The FCC has no authority to police the ideological balance of the airwaves, and no matter what this Commission does next, the record now makes clear that this was never a genuine search for the public interest.”
