Congress needs to curtail the FCC’s public interest authority

How do we know when a broadcaster is acting in the “public interest”? Under current law, the answer is simple: when the Federal Communications Commission (FCC) says so.

Broadcast licensees operate under the Communications Act’s requirement that they serve the “public interest, convenience and necessity.” Congress did not define “public interest” and the Supreme Court has granted the FCC broad discretion to interpret – and enforce – it, and to regulate broadcast content. The result is what the Cato Institute has described as “junior varsity First Amendment rights” for broadcasters.

FCC Chair Brendan Carr has threatened broadcasters’ licenses over content he deems contrary to the public interest, particularly content critical of the administration. While controversial, this is hardly unprecedented.

As I described in an earlier blog, in 1961, FCC Chair Newton Minow famously denounced television programming as a “vast wasteland” and warned broadcasters that license renewal “will not be pro forma. There is nothing permanent or sacred about a broadcast license.” As today, regulatory pressure was tied not to clear statutory limits, but to the chair’s personal view of acceptable content.

This bipartisan history highlights the core problem: a vague, subjective standard that allows government officials to pressure speech based on shifting political or personal preferences.

Congress created this problem and Congress can fix it.

The most straightforward solution is for Congress to eliminate the public interest obligation altogether. Doing so would remove the FCC’s authority to regulate broadcast content through subjective licensing standards that change with each administration.

If Congress is unwilling to go that far, it should at minimum define the public interest clearly and narrowly. One workable approach would be to deem the public interest satisfied when a television or radio station uses broadcast spectrum. In other words, the act of broadcasting – not the content of the broadcast – would fulfill the requirement.

Congress should also make it explicit that the FCC has no authority to regulate speech. Section 326 of the Communications Act already embraces First Amendment free speech rights, prohibiting censorship and interference with free expression. This would reinforce First Amendment protections.

This solution makes policy and practical sense because it corrects an outdated regulatory imbalance. The public interest standard applies only to broadcast stations and not to cable channels, streamed video or audio, podcasts, social media, or newspapers. In a world of abundant platforms and near-infinite channels competing for attention, this regulatory distinction makes no sense. It also demonstrates that there is no scarcity of diverse views or sources of news and information, something the Supreme Court has relied on to justify FCC content regulation.

Eliminating or sharply narrowing the public interest standard would level the regulatory playing field by removing a tool that invites political pressure on one segment of the media ecosystem. More fundamentally, it would align broadcast regulation with First Amendment principles.

As the Supreme Court found in the context of social media, it is not the government’s role to decide the proper balance of speech or to “un-bias” public discourse. Those judgments belong to speakers and their audiences. The same should be true for broadcasters.

This approach would allow the marketplace – the American viewing and listening public – to determine what serves the public interest. Broadcasters that fail to meet audience demand will lose relevance. Those that succeed will do so by earning public trust, not regulatory approval.

History shows that officials too often equate the public interest with their own political interests. Congress should reject that model and trust the public instead.