UPDATED: A federal judge heard arguments Tuesday in ABC‘s First Amendment lawsuit against the FCC, pressing a government attorney for details on why the agency took the dramatic step of calling in the network’s broadcast licenses for early renewal last spring.
U.S. District Judge Loren AliKahn did not issue a ruling after a two-hour hearing in D.C. federal court, but she did ask that the government submit additional briefing on what other options it had besides ordering eight ABC owned stations to submit for early renewals.
The network sued the agency in August after the latter issued the order. The highly unusual action came after Donald Trump urged the FCC to revoke the network’s licenses, along with calls for Jimmy Kimmel to be fired, complaints about its news coverage and warnings from the president’s FCC chairman Brendan Carr.
During the hearing, ABC’s attorney, Beth Wilkinson, told the judge that urgent action is needed because the regulatory threats have chilled the network’s speech. She said that their editorial decisions “are being affected right now” in coverage of the midterm elections “that the American public has a right to hear about.”
“We are watching everything we do,” Wilkinson said. She pointed to Trump’s call for the network to lose its broadcast licenses for not airing his primetime speech in July, noting that it “brings out anger in the administration and retaliation from the agency.”
At one point, Wilkinson compared ABC’s situation to the French Revolution, with people forced on a guillotine, wondering if anything will come down. Losing broadcast licenses, she said, is akin to a “death penalty” for stations.
Amid a flurry of FCC investigations of the networks under Carr, ABC’s lawsuit is the first major media challenge to those regulatory threats since Trump returned to office.
The FCC is seeking to dismiss the lawsuit, arguing, among other things, that its early renewal order was tied to an investigation of Disney’s diversity, equity and inclusion practices.
A large portion of Tuesday’s hearing was devoted to a critical jurisdictional question the network must overcome first. The agency’s lawyers contend that the network first had to exhaust administrative remedies before bringing the litigation, and that such a challenge has to be brought before the D.C. Circuit, not the district court.
Asst. U.S. Attorney Dimitar P. Georgiev, representing the FCC, told the judge that ABC is “a regulated entity being subjected to regulatory inquiry by its regulatory.” He said that after the FCC’s media bureau issued its order for early licenses renewals, ABC could have appealed to the full commission and, if it got an adverse ruling, could have taken their claim to the D.C. Circuit.
Alllowing the case to proceed in district court, he said, “would allow them to sidestep the path that Congress” designated.
“Even if you find there is a valid First Amendment claim, there is nothing unique about requiring a regulated entity to go through the administrative processes before seeking judicial review,” he told the judge.
Wilkinson countered that what was at issue was that the network has to go through the early renewal process at all, characterizing it as an act of retaliation that is ripe for district court review.
While the network could have appealed the FCC’s order to the full commission, she noted, federal statute allows for the commission to just deny the appeal or hold it. That would further delay to the process, which in and of itself is chilling the network’s speech, she said.
“We should never have to be in this process because it is only been initiated to retaliate against us,” Wilkinson said.
In responding to the judge’s question of how ABC has changed editorial decisions, Wilkinson pointed to the decision by The View to forgo clips of political candidates on its “Hot Topics” segment this cycle, out of concern it will invoke FCC scrutiny because of the equal time rule. The agency launched an investigation in February after the show featured Texas U.S. Senate candidate James Talarico. The rule requires broadcasters to provide comparable time to rivals when they feature qualified candidates, but ABC has contended that The View has long fallen under an exemption for news programming.
Wilkinson also said that when the president delivered his speech in July, the network did not air it but did decide to stream it on ABC News Live. “They did that because they thought the president would be angry” if they did not run the speech at all, she said. As it turned out, Trump lashed out at the network and NBC anyway for forgoing the broadcast.
Georgiev said that there was “no reason to believe” that the early renewal order prompted changes to ABC’s editorial decisions, arguing that the networks’ invocation of The View in their briefs does not connect it to license renewals.
The judge did not say which way she was leaning. She gave the government until Friday to file additional briefing on the FCC’s DEI investigation and other options the agency had to resolving a discovery dispute with the network. Wilkinson said that the FCC was making a “pretextual” excuse for taking such an unusual step, when the real reason was the punish the network for its speech. The order came right after Trump called for Kimmel to be fired, she noted.
AliKhan also pressed Georgiev on comments made by Carr after Trump’s July speech. The FCC chairman told reporters that month that ABC’s decision not to air the primetime address on its broadcast network was likely to come up in the early renewal proceeding. She asked whether that undermined the contention that the early renewal order was about DEI, not newsroom and content decisions.
“The statements are the statements,” Georgiev said, characterizing Carr’s comments as “awkward.” But he added that once an early renewal proceeding is launched, the FCC takes public comments that can be on a variety of issues for and against the licenses, and that the agency has an obligation to review them.
