The FCC on Trial: Defense of Free Speech and the Future of Media Regulation – Episode 27 of Unbuffered

Christopher Mitchell (00:16)
All right, we’re we’re breaking new ground today on Unbuffered. I’m excited to to introduce this show, which is being brought to us actually from the Competitive Enterprise Institute. So thank you for to them for their studio. but I’m Chris Mitchell at the Institute for Local Self Reliance, talking with Berin Szóka and Gigi Sohn.

Berin is the president of TechFreedom and was on our previous podcast. Welcome back, Berin.

Berin & Gigi (00:39)
Hi, thanks for having me.

Christopher Mitchell (00:41)
And Gigi has been on multiple shows and I’m excited to have you back. Today you’re affiliated with the Benton Institute, where you’re a Senior Fellow and Public Advocate. many hats, but that’s what we’ll be thinking of you today wearing.

Berin & Gigi (00:55)
Well, that’s great. It’s great to be here as always.

Christopher Mitchell (00:58)
And this is the first time we’ve done the double shot. I feel like it looks great. And I’m excited to be talking with both of you about a subject that’s awful, which is I was always thinking about introducing what we’re gonna talk about today. I was thinking that I definitely lost the bet two years ago I made with myself of whether we’re gonna spend more time talking about section 230 or license renewals as a way to chill speech. So

here we are. We’re going to talk about the Federal Communications Commission, the Chairman Carr, and what is happening with the FCC and broadcast stations and sort of threat to spre free speech and responses to that. and I think it’s just worth noting that traditionally, Berin, you’re often on the opposite side of the table from Gigi and I. we all line up on a lot of these issues here. But for people who aren’t familiar with us, this is kind of an exciting moment where we can agree and then also disagree and wherever we

We feel it’s appropriate. but it’s not just all the same people getting together, who normally line up together. so let me ask you, Gigi, to just start briefly with telling us what is the issue here. it goes beyond just like I think a little disagreement over the role of the FCC. What’s happening out there with Chairman Carr?

Berin & Gigi (02:15)
What’s happening is Chairman Carr and President Trump, okay. Let’s not let’s not leave out the big kahuna, okay, are using threats, are using the processes of the FCC to chill broadcaster speech. and it’s it’s basically a weaponization of the FCC’s processes, of the FCC’s bully pulpit.

And you know, this goes back, frankly, to Trump won, where Trump was threatening NBC to take away its licenses and has continued. You know, it’s interesting. Disney, we’ll talk about this. Disney has sued the FCC for for all these threats, for all these use of process to chill its speech. and if you look at one of their documents, there’s a twelve page appendix of all the times just in the last two years where the president

Or Chair Carr has threatened to take away the licenses either either directly. The president pulls no punches. He’ll just say they should lose their licenses. They’re horrible. They’re fake news. Carr will say things, well, you know, we can do this the easy way or the hard way, and broadcasters need to watch out, and there’s a public interest obligation. And, you know, he’ll say it more subtly. but as we’ve seen by his actions, for example, bringing Disney’s eight

broadcast TV licenses up for renewal all at once, that his his subtlety is now turning into very, very dangerous action.

Christopher Mitchell (03:55)
And Berin, this is this is not something we just see going back and forth, I feel like. And you know, and w this isn’t something where it’s just like a slight amping up of past bad behavior, is my impression.

Berin & Gigi (04:07)
No, I mean, look, I mean, we we’ve almost forgotten at this point that at the beginning, at at the at the sort of the before Trump’s second term, he sued ABC for n you know asking, you know, asking s allegedly imbalanced questions and fact checking him during a presidential debate. And he sued CBS for, you know, allegedly, you know, incorrectly editing.

Kamala Harris’s interview. So this is even before he took the presidency for the for two years for, you know, in 2025. So he sued them. Both broadcasters paid him off. I hope they regret it. I don’t know if they do. Certainly it didn’t do Disney any good. so it’s again, it started a long time ago and then just kept amping up. And every time the president would react to something

that Jimmy Kimmel or Joe Joy Bihar or the View would say, Carr would follow up maybe a day or sometimes hours later with a, you know, with a not so veiled threat to go after their licenses. And it’s one thing for the president to say we’re gonna take your licenses away. It’s another for the regulator who has the power, who has worked there, I worked with him, so this was like 2013, right? We were we were there in 2013 together.

He’s been there, I think, half of his career, who knows where all the levers are. It’s another thing for the top regulator of broadcasters to say, okay, you know, we can do this the hard way or the easy way. And guess what? I’m choosing the hard way. And and a point that that we have emphasized in our coalition work here, which we can talk about, is it’s not just that he knows where the levers are, he pulls them. Yeah. He is the agency.

The the the FCC chairman has has always had the potential to be imperial. And it has become now the case that the chair, what what what the chair says is effectively law, insofar as the companies have to assume that the regulator will go after them because, yeah, in theory, there are other commissioners. It’s good that we still have a minority commissioner on the FCC. I don’t think that’s gonna last very long. Republicans are about to put another Republican on the commission when that happens.

They’ll fire Commissioner Gomez. that’ll be bad. There will be one less person to sound the alarm about what’s happening at the agency. But at the end of the day, it’s not actually going to change anything because they the the agency is Brendan Carr. And when Brendan Carr goes and makes makes these threats, every regulated party, all the broadcasters know that he’s serious and he can make them suffer. And so what’s at stake here? It’s not just all broadcasters, it’s the journalists at stake. I mean, for example.

we just filed a brief on behalf of a coalition, which I’ll let Gigi in introduce here. But the brief notes, for example, that Commissioner Gomez has been told that there are reporters who have been let go because their employers are too afraid to employ them. So I want to be clear when we set have these conversations, sometimes it sounds like this is like, the companies are under pressure. No, it’s it’s the individual reporters.

The editors, the people who book guests, the people who are making decisions about what is said on the media. You know, this is an assault on every aspect of the press, the independence of the press in America, and ultimately on the First Amendment rights of Americans as viewers, to have a media ecosystem that isn’t effectively controlled by the government. And the pattern that Gigi described a moment ago is what Timothy Snyder in his book on tyranny calls anticipatory obedience. That’s when

Companies or individuals anticipate what the government wants and they cave in advance. And the key thing about that is every time they do that, they teach power what it can do. That’s what’s happened here. Brendan has become more and more aggressive because he keeps getting what he wants until finally Disney, on behalf of its ABC stations, was willing to stand up to him. And they really deserve to be commended for doing that. And and I just need I just need to add,

Christopher Mitchell (08:23)
Can I can I mm-hmm.

Berin & Gigi (08:25)
not one broadcaster has stood up for Disney.

Right. So there’s a proceeding at the FCC to look at whether their licenses should not be renewed or should be revoked. And then Disney took the cudgel, as some of us have been begging them to do for some time, but you understand why they don’t necessarily want to sue the regulator. They bought suit and not one broadcaster has defended Disney. So ’cause they’re too afraid. Right. They have too much to lose. So it’s it’s important to know that this is not just about one broadcaster.

This is about every broadcaster, this is about every journalist, and this is you know, frankly, about the media entirely. And and and it’s worth noting here, you know, we all know what what’s happened to CBS. I think that’s pretty clear. I don’t think it requires a lot of explanation.

Christopher Mitchell (09:09)
Well, I think well

no, I would I wish just what’s the thirty seconds on it if you don’t mind?

Berin & Gigi (09:13)
Well, in a nutshell, the transaction by which CBS changed hands was orchestrated to satisfy this chairman. And the buyer in that transaction is of course a a close friend, Larry Allison, close friend of the the administration, and made supposedly voluntary, quote unquote voluntary concessions to the administration that included things like an having an ombudsman.

inside CBS who would report on ideological bias. This is literally the kind of thing that the Nixon administration schemed about in private. We have recordings from the 1970s. This came out in the investigation after Wald Watergate. They were trying to get the FCC to to coerce broadcasters to do this. And now it happens in the open and now Brendan Carr he he extracts this concession.

and now this is this it’s a it’s a compliance infrastructure that is designed to keep the White House happy. It’s literally what the Nixon White House was trying to get, but couldn’t because then that the the FCC wasn’t, you know, an arm of the the White House and a tool of political revenge.

Christopher Mitchell (10:25)
So Berin, can I can I just push you just a little bit on that then to to make sure we we haven’t lost some people in that we’re talking about broadcasters in a quote unquote dying medium and most people are getting their information from TikTok, you know, they’re getting it from Joe Rogan. and so is this as big of a deal as you say? Like can you just defend that?

Berin & Gigi (10:49)
Yeah, well, first of all, those of us who are very online forget just how many people in this country rely primarily for their news media on broadcast television. I mean, even people who watch broadcast television on on cable, right? This is still the primary medium that shapes our discourse, our political discourse. And it’s as a First Amendment matter, the courts have been very clear about this. I mean, if if, for example, if I shut down your protest in front of the state capitol.

And said to you, well, it’s fine, you can go protest a few blocks away, and it’s it’s sort of close enough, but you don’t actually have that that central place that is right in front of the Capitol building. We would all understand the First Amendment harm there. It would be clear that you had you had reduced our ability to shape political discourse. That’s sort of what’s happening here, except the place where the discourse is is going on.

It’s, you it’s like, the hipster is nowhere to find it downtown. You know, younger people, they will see the Talarico interview that CBS, excuse me, that ABC is too afraid to to broadcast on the air, but yeah, they’ll put it on their their online network. There’s still a real First Amendment harm happening here. And and it’s important to note when when you look at ABC, okay, ABC has the courage to continue to at least put Talarico’s interview.

on their online service. That’s not the case for other broadcasters, right? CBS, their coverage, they’re the they’ve made real changes in who is running newsrooms. Their coverage has changed.

Christopher Mitchell (12:24)
They have the courage to be

last in on the ratings. Like they have the courage to lose more and more money. It’s it’s kind of remarkable.

Berin & Gigi (12:28)
Yeah. And and yes. But

but can I can can I just put a finer point on broadcasting is dead because I’m kind of sick of hearing it and it’s false. All you need to do is see how much money local and con local candidates, senatorial candidates spend on broadcasting during election season to know that broadcasting is not dead. And as what as you well know, Chris, there are huge swaths of the

population who either don’t get the Internet or can’t afford the Internet I I I heard a shocking thing. I was talking to somebody in New York City, that 25% of residents of New York City do not have the Internet. I mean that was shocking to me. So you know bro the the you know the claims that broadcasting is dead are are quite premature. I just want to say one last thing. NBC has been conspicuously silent in all this and it’s not an accident because

Comcast Universal is trying to sell NBC. And they, that deal is going to have to be approved by Brendan Carr. So, you know, this is this is the problem. We have this architecture of power now where broadcasters are afraid because even their ability to sell their assets, even if they want to get out of the business, it depends on staying in the good graces of the chair.

Christopher Mitchell (13:51)
Yeah, that’s the part that I feel like I always want to emphasize is that this has these spillover effects for everything else in terms of the functioning of lots of markets. And that’s one of those areas that like, I mean, I’m horrified at the shredding of the First Amendment, but also the fact that it then impacts all of these other markets in terms of of the just the ripple effects. So I’m glad you brought that up, Berin.

Berin & Gigi (14:14)
It

I mean, Chris, let’s not let’s not forget that it was Brendan Carr that first talked about trying to use the FCC to modify section two hundred. So, you know, if you think it stops at the door of the F you know, of broadcasters, it doesn’t, at least in this chair’s mind. I mean, I remember I actually debated him when he was a commissioner.

about whether the FCC had authority under Section two thirty of the Communications Act to modify it to increase the liability for certain platforms if they took down certain content. So again, it it Content he likes. You can’t right, exactly. He was trying to turn this in look, basically in both cases, this is the central irony. Republicans spent decades crusading against the fairness doctrine. And yet this chairman had he he first

Proposed trying to build a fairness doctrine for the Internet by reinterpreting section 230. And now he’s effectively created this bizarro, whatever he says goes weird version of the fairness doctrine. It’s not the fairness doctrine, right? But it’s basically a the this is the central argument. He’s essentially says broadcasters are public trustees. The public doesn’t trust them, by which he means sp specifically Republicans. And as long as people don’t trust them, Republicans.

then they’re not living up to their obligations and we can take away their licenses. And what that effectively means is unless you satisfy our base by changing your coverage, your license is in jeopardy. That’s his bizarro version of the fairness doctrine, all in the name of trust.

Christopher Mitchell (15:52)
Right. This is not how we want the system to work. And I think we’re going to try and find a time at the end to talk a little bit about how we might see the system working in the future. But before we get there, we want to talk a little bit about what can be done and what is being done. So I think Gigi, you were going to share with us what’s being done to try to rein some of this threat in.

Berin & Gigi (16:10)
Well again, as as as I said, Disney finally, you know, took up the cudgel. Like I think they just got sick of being batted around and sued the FCC on various First Amendment grounds. in the district court here in D C and there’s gonna be a hearing the week of October fifth. Do we have we don’t think we have a date? October seventh. And

Christopher Mitchell (16:30)
Disney owning

A B C just for people who haven’t followed that closely.

Berin & Gigi (16:34)
Right. And what Berin and I have been working on is getting the broadest swath of top FCC officials, chairs, commissioners, media and enforcement bureau chiefs, chiefs of staff, general counsels on an amicus brief in support of Disney in the district court. And I I gotta tell you, when you have, you know, commission chairs as different as Mark Fowler

And Dennis Patrick and Michael Copps and Tom Wheeler. So Mark Fowler was perhaps the most deregulatory FCC chair, probably ever. For Reagan. For Reagan. He was Reagan’s FCC chair. Dennis Patrick was his successor. Mark Fowler’s on the amicus brief. He actually is a a declarant in the in the Disney case itself. So he’s actually a party to the Brendan’s actions, the most corrupt use of the FCC’s power in its history, which is an understate.

But you have Mark Fowler, Dennis Patrick, and then on the other side you have Michael Copps who thinks that eight year license terms are too long and that they should be shorter, and Tom Wheeler, who I work for, so you know, you you gotta figure he’s pretty regulatory too, on the same amicus brief saying what the FCC is doing here is outside of their authority and violative of the First Amendment. And frankly, I think does

grave damage to the institution itself, which may be the point, right? I think that kind of gets lost is I think a lot of what’s going on here, and and as much as, you know, Brendan purports to love the agency, and again, he’s worked there I think half of his career, he’s actually destroying the agency by what he’s doing. I want to note we’re up to 18 commissioners. It’s quite bipartisan, and it leans Republican. and the people who

Fought hardest to end the fairness doctrine in the 1980s. Mark Fowler, Dennis Patrick, their their top advisors, they’re involved in this effort because they understand that that Brendan has betrayed the the simple conservative idea that the government had no business getting involved in the fairness of media. Well, this is the most regulatory FCC of all time. Yeah, exactly. I that’s the irony. Most regulatory, but also the one that is determined to do that regulation completely outside of the rule of law.

The the issue here is not just the First Amendment. The issue is the rule of law. Does the law, is it, is it understandable? Does it have a clear meaning? Brendan Carr, before he became FCC chair, he was out there saying, you know, we should have a rulemaking to define the public interest standard. That would have been a good idea, right? There’s another version of this where you we could have gone down that road. We could have had a a discussion about this. Maybe there could have been a rulemaking. he didn’t do that because he didn’t want either dissent.

Criticism. But in particular, he didn’t want to have to defend himself in court. So the thing you really have to understand about how this has gone down is everything he’s done has avoided taking any final agency action that could be challenged in court. So that brings us to the ABC case. Why finally are we in court?

Christopher Mitchell (19:43)
Well, sorry,

could you pause there for a second? Just I think for people who aren’t as steeped in the law to make it clear, you’re saying that that basically he’s figured out how to use the bully pulpit in ways

Berin & Gigi (19:53)
Yes.

Christopher Mitchell (19:54)
that because he hasn’t finalized any rules, there’s no course for people to say you can’t do this.

Berin & Gigi (19:59)
He hasn’t finalized any rules and he also hasn’t brought any in actual enforcement actions. He has opened an investigation into ABC’s employment practices, but there’s no there there yet. I mean, he the analogy I would give you, it’s a little bit like saying, we think you might have been speeding. so by the way, you’re now on on trial for your life, and and we you have to prove to us that that we shouldn’t execute you.

That’s effectively what’s happened It is more than just using the bully pulpit, Chris. I mean, it it again, it’s using the levers. I want to put a fine point on something that Berin said earlier. The FCC chair controls all the bureaus. Okay. If the chair doesn’t want the other commissioners to profit from what the Bureau Chiefs or Bureau staff says, they can do that. They could say, sorry, no access. They can make decisions that are not final.

And reviewable by a court like the Paramount decision that was not voted on by the full commission, okay? Like the Next Star Techno decision, that’s the biggest combination of broadcasters in history, okay? Never went to the full commission and was decided by the Media Bureau. So he can do things at a lower level that have the force of law.

But yet when we want to run to court to challenge them, we’re said, you know what’s not a final commission decision. You’ve got to appeal it to the full commission. And guess what? The chair has complete and full control over when that appeal gets heard. So the power of the FCC chair, and look, I work for the chair, and I’m still an advocate for weakening the power of the chair. not all my colleagues agree with me, because the commissioners are almost like appendages.

Unless the chair brings them into the decision making. Yeah. So so the ABC suit is about two issues. One is the First Amendment. This is the clearest example of jawboning in American history. I mean, truly, that’s not an overstatement. The First Amendment argument here could not be stronger. And all all I will say about that side of this is the the FCC’s argument boils down to, but we think you might have violated employment law. The Supreme Court has been very clear, they just

Made this clear in the case of the National Rifle Association versus Vulau. Vulau was the state attorney general of New York and may indeed have had some legitimate grounds for bringing some enforcement actions against insurance companies in New York. And the Supreme Court said it doesn’t matter if you have a legitimate law enforcement investigation. If you’re using the threat of that investigation in order to coerce changes to speech, in that case, it was pressuring insurance companies to stop.

Doing business with the NRA in order to punish the NRA for its speech about guns. the Supreme Court said if you’re doing it for retaliatory purposes to reshape speech, if it’s reasonably understood that that’s the purpose of the threat, it’s a First Amendment violation, full stop. Okay, so the First Amendment case here is very clear. The problem is normally you have to wait, as Gigi said a moment ago, for an agency to make a final decision, and then you have to appeal up.

All the way to the commission. There’s a there’s an administrative process you have to go through, and then you are supposed to go up to the Court of Appeals. So the the question that’s being heard on October 7th is: do the federal courts, the district courts, the trial courts, the ones that hear questions of fact, are they do they have jurisdiction to hear First Amendment cases involving claims, not about the merits? This is none of this is about the merits of the license renewal or about employment law or or anything else.

This is purely about whether the federal government can use threats to punish people for its speech. The answer to us is obviously, of course, that case has to get heard by a court today. If it doesn’t, you have no effective remedy. Brendan could he could never bring an enforcement action. He could never make a decision about whether to renew the licenses. You could leave the broadcasters in limbo indefinitely, and during that time, you’d be chilling their speech. And the Supreme Court’s been very clear.

That the loss of First Amendment freedoms, even briefly, is an irreparable injury. And the court in a f just a few years ago decided a case where they ruled that a constitutional claim, it’s a different one, it’s about separation of powers, but a constitutional claim that involves that that kind of here and now injury, it has to be heard today. Because if you wait, it’s too late.

Christopher Mitchell (24:37)
So that’s the that’s the next step is on October seventh you’ll be presenting these arguments and then what’s the

Berin & Gigi (24:44)
Well, a a

ABC will. I we’re we’re just a

Mickey, which is we’re just friends

Christopher Mitchell (24:47)
Sorry. Right.

Berin & Gigi (24:49)
of the court. I mean I do think, just judging by the press coverage we got, the fact that you’ve got eighteen high level, bipartisan, high level FCC officials you know, arguing that A, the that the court has jurisdiction and B that this FCC is engaged in, you know, chilling speech that rises to a First Amendment violation, I think

I think we’ll be influential.

Christopher Mitchell (25:16)
What I’m wondering though is is when do would we literally see action on the result of that? So the the judge will ponder the arguments and then there will be a decision and then is there like a motion after that? What what happens?

Berin & Gigi (25:26)
okay, so so

on a high level, ABC didn’t get a preliminary injunction, but they got something very close to that, which was that that the the judge instructed the agency to if if the agency took any further action to to let the judge know immediately. So I think it’s it’s it’s very unlikely that the agency is gonna do anything until the judge issues her decision. So it’s possible that she may take a little time.

To make a ruling here. she might also make a ruling from the bench. she might say something like, I previously instructed you to not take any further action. she might reiterate that. I I think let me put it this way: if I were in her shoes, I would want to write a careful opinion that lays out the grounds for this, these are some complicated questions of

Interpreting the existing law about how you get into federal court. If I were her, I would want to write a a thoughtful opinion on that. And and just for for background, this is not the first time this question has come up in the DC district court. This essentially the same question came up last year with the Federal Trade Commission, which has been involved in a in a similar campaign of intimidation against both tech companies and also civil society groups that are reporting on neo-Nazi content and transgender care organizations and so on.

And that case involved Media Matters, which was reporting on neo-Nazi content on X. Long story short, the district court said, yep, district court can stop that here and now harm immediately. It went up to the DC circuit, and the DC circuit had oral arguments, they went very badly for the FTC. And then the FTC backed down and had the case dismissed before the DC circuit could rule. So, in other words, this case has already been sort of litigated. And if I were the district court judge,

I would want to make sure that I wrote the the opinion to set up the inevitable appeal because what the real question you’re asking is what happens next after that? So she I I think she’s gonna block the FCC from taking any further action. The FCC is gonna ask for an appeal, DC Circuit will hear the case, and they’ll pick up where they left off in the FTC case with Media Matters last year. And I I I think that there’s just no way for them to say that the first amendment.

Is somehow trumped by a status. So to speak. So to speak. And and just, Chris, just to explain, you know, what is the FC S FCC arguing? Okay. The FCC is arguing several things. They’re arguing that, you know, you Disney has to wait until we’ve decided what to do with these licenses before they can appeal it. And then the proper appeal is not to the DC District Court, it’s to the Circuit Court of Appeals.

Right. So that’s that’s that’s their jurisdictional argument and their authority argument. Their other argument

Christopher Mitchell (28:22)
And that’s just that’s just

sorry, Gigi, that’s just an argument in which they’re just basically trying to delay, right? And push it out.

Berin & Gigi (28:29)
Delay,

delay. I mean, this is indefinitely indefinitely. Again, continuing the chilling. And let me just doubly emphasize how important it is for broadcasters not to feel chilled during one of the most monumental elections of our lifetime. I know we hear this every sing every two years, but clearly. So, you know, the fact that it’s coming now, I think, is just so critical and that broadcasters are not

putting on candidates because they fear the wrath of the agency and they’re not covering certain issues because they feel

Christopher Mitchell (28:59)
This is this is exactly

what I want to get into, which is to some extent, I feel like the best case scenario in some ways is that is that your position wins, but that Chairman Carr like, all right, well, I have three other ways that I can go about chilling speech now. And so to some extent, I hope your coalition is a sign of like culture changing and like more of a revolt somehow. Like, because theoretically, Congress could do stuff next year, maybe if there’s a new Congress, right? They have some power. You’re laughing at that, it looks like.

but like what is the what is the real path to trying to rein in this agency over the next two years?

Berin & Gigi (29:32)
So c can I can we Yeah, go ahead. But can I I just w I just wanna also say the other the FC’s other argument as to the chilling effect. It’s basically this. This is in the simplest terms.

Chairs will say stuff. Presidents will say stuff. That’s normal. That is seriously, that is their argument when we say, you know, when Chairman Carr says the e we could do this the easy way or the hard way, or you know, you better watch out. That’s just, that’s just the chairs saying stuff, and that’s what they do. I mean, it’s it’s so unserious. It’s so unserious. It’s worse than that because it’s like, well, these other changes they made, well, they they just made those because you know the public wanted them to. It’s like, officer, he was dead.

When I when I got here, he was dead when I hit him. Like I I had nothing to do with all this change that’s going on in the media marketplace, even though Brendan is constantly saying, Well, we we’ve we’ve succeeded in getting the media marketplace to change, right? He’ll say that in public, and then here he says, no, no, this has nothing to do with us. So this is why their brief totally dodges chilling effects. They pretend that they have had no effect here. And and only by doing that do they fail to engage.

With the two controlling cases here, which is again, it’s the Vullo case involving the NRA from 2024, and then the decision from the 60s involving Bantam books, where Bantam books, you know, maybe some of the books that that that they were distributing were really obscene. And that may have been a legitimate grounds for law enforcement, but a state commission making threats to against them to shut them down chilled their willingness to distribute books that were not obscene. And that was recognized to be a First Amendment problem. That’s the core case here. The FCC doesn’t even mention it.

So you asked, okay, so what what are we paying attention to here? And then what happens next? the the the thing to pay attention to here is ABC makes essentially two what we call prayer for relief, prayers for relief. One is stop the proceeding against us, the early renewal proceeding. But actually, the more important prayer for relief is they also say stop all other forms of retaliation. It is deliberately open-ended. And what really matters coming out of this is how broadly.

Does the judge write the order that bars the FCC from engaging in retaliation? And is it broad enough that, for example, ABC somehow takes more comfort in the FCC not being able to use the the transaction review process when NBC is put up for sale against them? My my view is there’s no way to stop the chair, right? I mean, I I I she’s gonna try and she can write this broadly worded, but whatever she

Rights is going to get litigated because the chair, he’s not going to stop. The president is going to keep turning up the dial here. And when we get to the midterms and we have another round of of misinformation about the election and another effort to discredit the election results, the attacks on the media will accelerate dramatically. And when that happens, whatever she says, whatever she puts in place in October, it’ll come out before the election. I can tell, I can tell you that much.

Right. I don’t know if I had to guess, you know, maybe it’s in a week or two. And then we see in November there’s going to be more attacks, and there’s going be, I hope, that other people will stand up for themselves and that question will be litigated. And then we get to your question about Congress. I think at that point, Congress will see that we can’t just leave this to the courts. Because the courts, you know, it they assume, first of all, that someone’s willing to stand up for themselves. ABC, it’s worth noting, again, deserves a lot of credit for standing up for themselves.

But they did wait a long time to do it. They only did it when Trump made that threat in his speech, right? That speech about trying to undermine the election. He said they should lose their licenses for not covering our speech. And then Brendan went out and said, yeah, we’re going to investigate that too. That gave them the hook to make clear, it was already clear enough, but to make really, really clear that this was about not employment law, but about their speech. The point is, here,

Only one company’s been willing to stand up for itself, and only reluctantly, and only when really, really pushed. Congress cannot assume that going forward. We need to have a structure going forward where, for example, Gigi referenced the the some of the deals that have been blessed here by the by the FCC. The CBS deal is probably the best one. What I want to see going forward in terms of institutional reform is that deals like that don’t just get extracted.

From the companies involved through what Ted Cruz best described as mafioso tactics, where we do this the easy way or the hard way, right? Ted Cruz, the Republican responsible for overseeing the FCC, understands that Don Corleone is running the FCC, right? And if you understand that, and you understand that it’s really easy to circumvent the courts, the most important question is: how do we make the courts effective? And then to the extent that they that they can’t hear all these cases because there isn’t someone to sue.

We need Congress to be more effective because in the interim, you know, we’ve destroyed the independence of these agencies. That the Supreme Court in the slaughter decision, you know, this was predictable. I mean, I don’t think it’s a good thing. I mean, we it’s not worth getting into the merits of the decision. But but basically

Christopher Mitchell (34:46)
It’s complicated, yes.

Berin & Gigi (34:48)
the the court said that the president has the right to remove commissioners that exercise executive power. And what and that means that we’re not going to have, after there’s a third Republican here on the FCC, we’re not going to have Anna Gomez anymore. She’s going to get fired.

And going forward, we have to assume that under a president like this one, there will not be any dissenting commissioners. So my question is: how do we rebuild the oversight function? And my view, in a nutshell, is everything Slaughter said, the Supreme Court decision, is about executive officers. But they don’t have to be executive officers. I mean, the most valuable thing that the commissioners do is not voting, it’s dissenting, it’s it’s analysis, it’s inspiring other people.

To to get involved in litigation, it’s laying out a roadmap in the courts, it’s telling Congress that that the law is being abused. Those are not executive functions. Those are things that could be done by a purely legislative officer. They could still be called a commissioner. But but if if Congress changed the statute so they weren’t voting on the exercise of power, slaughter doesn’t apply anymore. They could be protected from removal, even and even more so, Congress could specify that it’s not the president who appoints them, it’s the minority leader of the opposition party.

So I’m gonna say something more simple. And it’s it and it’s it it’s a drum I’ve already been beating for the last three months with my p I know I rolled my eyes when you asked about Congress, but in fact, if one or more gavels change, I have urged my friends on the Democratic side to have every single committee and subcommittee with a whisper of jurisdiction over the FCC to bring the chair up for a hearing.

Every single week for 13, 14 consecutive weeks. That’s kind of what they did to my boss, Tom Wheeler. I think he testified five times in eight days, right? So you’ve got the Health and Education Committee, you’ve got the Homeland Security Committee, you’ve got judiciary, you can go, you know, admit c you know, courts and administration. You can I I think I’ve laid out about 10 different, just in the house, okay, just in the house, 10 different committees and subcommittees who could rightfully veterans, right?

A lot of veterans get lifeline, which is, you know, a subsidy for for broadband and and phone for poor people. So there are so many committees and subcommittees, and it takes you off your game. So that’s the first thing. We can talk about legislation and legislative officers and how you get around slaughter. I mean, I’ve been thinking about that as well. It’s very, very hard. but there is one thing that Congress can do if the gavels change right away.

And that is hearing after hearing. Yeah, I know I’m pounding on the desk and you’re gonna hear

Christopher Mitchell (37:27)
Yeah.

Berin & Gigi (37:27)
it. And if I may, my proposal in a nutshell is essentially it’s that in a turbocharged way. You could imagine those hearings working much more effectively if you have Gigi being the one who questions him, or Commissioner Gomez. In other words, what I want is just to it build up the capacity of Congress so it’s not just the members, they’re gonna ask their questions. But remember when Kavanaugh had his confirmation hearing?

It wasn’t just the members of the Senate Judiciary Committee asking questions. They brought in a a real a lawyer who asked hard questions. We

Christopher Mitchell (37:57)
Yeah, no, I this

is this is this is what I want to hear, B Berin. This is exactly to me what what needs to change with these oversight hearings is to have that and not to have like it’s

Berin & Gigi (38:04)
Experts, yeah.

Christopher Mitchell (38:06)
not you know, and just I think sorry, I’m interrupting you. I’ll I’ll go after you go.

Berin & Gigi (38:11)
Well, just also, I mean, another thing, so so when

Christopher Mitchell (38:13)
Ha, take it away from him.

Berin & Gigi (38:15)
Kevin Martin was chair and Congress changed hands to Democrats, the House Energy and Commerce Committee did a report, you know, about all the things that he did badly, did poorly. Again, let’s have GAO reports, let’s have, you know, questions for the record. I I could tell you how thick the questions for the record for my nominations hearings were. Like that’s double that size.

Again, it takes the agency off the game and says to Brendan, you know, Congress is serious about doing oversight. And Congress hasn’t been serious about doing oversight for a really long time. And both parties, by the way. And and my point in a nutshell is just that the five-minute round robin format is not serious oversight. It is ridiculous. We need to reinvent how Congress does these things. That format, you know, we all take that for granted. That that

Was an invention of the 1970s. People talk about C-SPAN coming in with cameras in Congress in the late 70s. This was the bigger problem that in the mid-70s, we we got into this mode where we decide, okay, everyone’s gonna have five minutes and they go down, they’d ask their

Christopher Mitchell (39:19)
Mm-hmm.

Berin & Gigi (39:19)
pet questions. That Kavanaugh confirmation hearing gave you a flavor of how to have, on the one hand, have some of that while at the same time having a real professional who’s there to push back. And and in a nutshell, whatever the implementation is, my point is just that.

The structure of the administrative state, the the the multi-member bodies, presume that you had that level of expertise coming from inside the commission. That’s no longer gonna happen. So now it has to come from Congress. And and whether we in the in the first iteration, we do that at the committee level through a hearing with a, let’s say, a tougher interrogator to start with, or we promote that person into being like a commissioner with a staff and you know, a a six-year term and a budget. And you know, that’s essentially what I’m envisioning for the commissioner role.

It’s on a spectrum. And the point is just that there’s more oversight. And the last thing I would say is these are not different things. At the end of the day, what we need to do is is boost Congress and the courts in in scrutinizing the agency. And you can imagine that the same that these things happen together. So for example, today, the Department of Justice has a special right. Every every court in this country has to take a statement of interest brief from the Department of Justice or the Solicitor General. And that’s being weaponized by this administration.

To push bullshit legal theories about like how you can use the antitrust law to punish collusion on on editorial judgments. That’s crazy, but that’s what they’re saying, right? Why don’t we give that right to my supercharged minority commissioner, supercharged inspector general, right? We could have we could have the people who’ve been doing the oversight do it in different ways that have so that when there’s a settlement, like you know, let’s say it’s that the the Paramount settlement or the Tegnis settlement.

You have someone the court has to listen to, and maybe someone who says to the court, you know what, you need to have a public docket on this process, which is what happened for antitrust settlements after the Nixon administration abused the antitrust calls called the Tunney Act. It’s not that effective in its current form, but we could build on those models to ensure that there is public comment and oversight and a record before deals like this are rubber stamped. I love that.

Christopher Mitchell (41:27)
No, I’m

no, and I think these are these are great ideas. I you know, candidly, this is a sort of thing that I I desperately think we need is like some incremental things like like changing the the format of the oversight to have to have it not be just about like a person showing off for TikTok ninety nine percent of the time, which is what it seems like it’s turned into, and instead is

Berin & Gigi (41:50)
Yep. Yep.

Christopher Mitchell (41:52)
like actually the kind of oversight that makes someone have to

do their work. I I one of the things that I was just, I was looking up for your, your your title currently, Berin, and I saw this quote from you in 2019, which I think you’ve said many times in many places. I’m constantly amazed at people who propose something like broad power to a regulator with open discretion and then don’t think about how that power will be abused when they’re not in power. And I feel like I’ve heard that a lot from people and I’ve always respected it.

And

it never hit home until we really like because it was like, we got like two hundred and you know, two hundred and forty years where we mostly avoided that. Now we’re really here. And the question is, what do we do next? So I think these are really great ideas for it. I think I’d like to have you both back on to talk more about some of these, you know, to talk about the implications of like, you know, to the extent that we need centralized power like this, how do we, how do we format it and also whether or not we need it.

Berin & Gigi (42:44)
Well, the the the last thing I’d say here is we whatever we do, we cannot rely on norms anymore. Right. Right? We are past the romantic version, the the naive version of how power is wielded. We are now dealing with an author an increasingly authoritarian system where, you know, the normal things still happen, but that’s how authoritarians always work. The normative state keeps going, the prerogative state is the part that does whatever it wants, that that if it has

The effective law with just pronouncements. You know, they say this, they say that, and then people change and they change their speech, right? That’s how authoritarianism in general, fascism in particular, always works. It’s happening here, and the safeguards against it have to be put into statute. So whatever happens, Congress needs to seize the moment and do something like what happened after Watergate, except they need to be, they really need to think a lot more carefully than Congress did then, because a lot of those reforms have not really been that effective.

I I would just say this. I mean, the more I talk to a lot of Democrats, and I talk to Republicans too, they’re sick of bringing butter knifes to gunfights. And I’ve I’ve been asking a number of folks, including you know, certain members of independent agencies who got fired by Trump, if the Democrats are so lucky to ever get the White House back, do you think we should have, you know,

Balanced bipartisan commissions, or should we have all Democrats? And they say all Democrats. And I I I fear that I feel the same myself. Is that, you know, what’s good for the goose is good for the gander. I don’t think it’s good for democracy. And I I agree with Berin, like there’s a benefit in dissent. It I think it sharp it sharpens the majority’s arguments, and frankly, it sharpens the dissenters’ arguments to hear from the majority.

I mean, when, you know, Ajit Pai was a minority commissioner when Tom Wheeler was chair, and he basically he took his dissents and made it into policy, right? So there’s there’s benefits, frankly, to both sides of having dissenters. But I think at least among many Democrats, and not just young people, they’re just sick of, you know, well, we have to go by the rules when we’ve been just completely steamrolled by an administration that doesn’t give.

a darn and I’m being very nice in my language about what the rules are. So Well the the the norms. The norms, the norms, right. The norms, exactly. I think I

Christopher Mitchell (45:13)
Right. No, and

I I really appreciate what both of you are doing to figure out how to respond. This is this is not easy. It’s not like you just sit there and you’re like, well, the obvious answer is to do this one thing. It takes work, it takes talking to people, and it takes courage because we don’t know what the next authoritarian authoritarian step may be. And so I just want to thank you and the people you’re working with to be willing to do this hard work and to figure out what comes next.

Berin & Gigi (45:39)
Yeah, well I I will say one last thing is that, you know, we’re not going back to where we were before. We have to figure out I I hate to use the term build back better, but I think that’s that’s kind of what we’re talking about. We we have

Christopher Mitchell (45:53)
Mm-hmm.

Berin & Gigi (45:54)
to have new paradigms for how the government works because it wasn’t, you know, it wasn’t working before either. Okay, it’s it’s it’s terrible now, it’s authoritarian now.

But you know, even my own experience in the government, you know, i i it it it could have used a lot of improvement. Well let let’s let’s close with this. How many employees do you think the FCC has today? I I think it’s got half, was it 500? Okay, five mil okay, but but it used to be over a thousand. Yeah. Whatever the number is, how many people work on this issue on Capitol Hill? I mean, actually work on it? It’s a handful. It’s a handful. Yeah. That’s the problem, right? That’s a fundamental misalignment of power. Whatever happens.

There needs to be a a much greater capacity among on the congressional side to work on these issues. You know, I always say if if you want to understand why DC doesn’t work, go look at the empty parking lots next to the congressional office buildings, right? The fact that those are that there are empty lots there instead of additional buildings full of staffers who are paid professionals who are able to push back in in substance against the abusive agencies, that’s the problem.

Christopher Mitchell (47:02)
Right. They have to be and I mean, like we have some brilliant young pokes, but you need people that have decades of experience in those buildings too.

Berin & Gigi (47:08)
Correct.

Christopher Mitchell (47:10)
Yeah. All right, we’re run off time, but I really want to thank you both one more time and look forward to continuing this conversation.

Berin & Gigi (47:16)
Thank you.

Jordan Pittman (47:18)
Thanks for listening to this episode of the Unbuffered Podcast. We have transcripts for this and other episodes available at ILSR.org/podcast. While you’re there, check out our other podcasts from ILSR, including Building Local Power, Local Energy Rules, and the Composting for Community Podcasts. Email us at [email protected] with your ideas for the show. Follow us on Bluesky. Our handle is @communitynets.

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by Christopher Mitchell with editing provided by me, Jordan Pittman. Until next time, thanks for listening.

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