Introduction

The Federal Communications Commission (FCC) is invoking the public interest to justify regulatory moves that would, in theory, force television and radio station broadcast licensees to create more balanced coverage of controversial matters. In the past, such efforts have produced the polar opposite results—chilling speech and even inhibiting television and radio stations from airing news content.

Today’s FCC should learn from the past and abolish the news distortion standard. Like the fairness doctrine before it, this regulation chokes crucial news and information. In this time of political polarization, it is being used as a weapon to inhibit speech that is critical of those in power or expresses contrary views.

Additionally, the news distortion standard only applies to content providers with broadcast licenses. It does not apply to cable channels, social media, newspapers, streaming platforms, or podcasts. This creates an absurdly tilted regulatory playing field.

Recent history shows that well-meaning attempts to use government power to advance the knowledge and understanding of the American people actually do the opposite, and thus damage the public interest. It also shows how regulators must keep up with the changing media landscape and recognize when legacy rules are unnecessary or even harmful. Ultimately, the public interest would be best served not by intrusive regulation of speech but by standing on the “foundation stone” of free speech guaranteed by the First Amendment.

Broadcast regulations and free speech

The federal government has regulated broadcasters for more than 90 years. Broadcast spectrum license holders, the television and radio stations that broadcast over the air programming to local communities, have their licenses granted by the FCC and are subject to a public interest obligation established by Section 309 of the Communications Act of 1934 (the Act).

The Act requires television and radio station licensees to serve the “public interest, convenience, or necessity” as a condition of their licenses. A license can be revoked or denied renewal if the licensee is found by the FCC to be failing to serve the public interest. Congress provided no definition of what serving the public interest means, and it has been left to the FCC and the courts to interpret it.

While the Supreme Court has recognized that the FCC has broad authority to regulate broadcast television and radio licensees, licensees still have First Amendment rights. Section 326 of the Communications Act embraces the free speech rights of the First Amendment, stating that nothing “shall be understood or construed to give the Commission the power of censorship” and that “no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.” 

As a matter of policy, the FCC has generally sought to encourage diverse speech but has regulated licensee content in certain circumstances. The FCC’s interpretation of the public interest has led to content regulations such as the equal time rule, the fairness doctrine, the news distortion standard, the prohibition on obscenity, regulations for commercial content in children’s programming, and the prohibition against the inappropriate use of emergency alert system warning tones for non-emergency purposes. 

The concept of scarcity has been a key factor in interpreting the public interest. Broadcast spectrum is a finite asset, so there is a limited amount of spectrum and a limited number of users of that spectrum at any one time. It has therefore been considered reasonable and lawful to regulate licensee content. The FCC’s founding statutes preceded the growth in cable and the advent of the internet and its vast options for news and information.

The public interest obligation is only imposed on broadcast spectrum licensees. Entities that do not have broadcast licenses, such as cable channels, social media, newspapers, streaming platforms, and podcasts have no statutory public interest obligation and the FCC’s content regulations do not apply to them. This difference in regulation places licensees in a challenging position, subjecting them to regulation that does not apply to their direct competitors.

Regulating the news

Two regulations affecting news and information were creations of the FCC and are not expressly required Two regulations affecting news and information were creations of the FCC and are not expressly required by the Act: the fairness doctrine and the news distortion standard. The fairness doctrine created considerable controversy and was eventually set aside. The news distortion standard remains in effect and is the subject of ongoing regulation and disputes.

Fairness doctrine: This standard was established by the FCC in 1949 and imposed news content requirements on licensees in the name of the public’s right to be informed.

In In the Matter of Editorializing by Broadcast Licensees, the FCC held that the public interest obligation required that when a licensee expressed its opinions or ideas on a topic it had “an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities, over and beyond their obligation to make available on demand opportunities for the expression of opposing views.” For example, if a television station broadcast an editorial that expressed the opinion of station management, the station had an obligation to offer time to an opposing view. It was the right of the public to be informed that “is the foundation stone of the American system of broadcasting.”

The fairness doctrine was applied to licensees but not to print media over which the FCC lacks jurisdiction. This created an unequal playing field among news and information competitors.

The fairness doctrine was upheld by the Supreme Court in 1969 in Red Lion Broadcasting v. FCC. The Court found the fairness doctrine to be a legitimate exercise of delegated authority because it was “inhered in the public interest standard.” In large part, the Court rested its order on the concept of scarcity because broadcast spectrum constitutes “a scarce resource whose use could be regulated and rationalized only by the Government.”

The Court therefore found that it “did not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern.”

However, the Court included a caveat that if the administration of the fairness doctrine has “the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications.”

As time passed, the net effect of the fairness doctrine came into question. Following the compilation of a voluminous record, the FCC’s 1985 Fairness Report found that “we no longer believe that the fairness doctrine, as a matter of policy, serves the public interest” because it failed to be a necessary or appropriate means for the public obtaining access to “diverse and antagonistic sources of information.”

The FCC found that the “interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today.” Evidence showed that government intruding into programming content “unnecessarily restricts the journalistic freedom of broadcasters.”

The FCC repealed the fairness doctrine in 1987. Relying in part on the 1985 Fairness Report, the FCC found that the doctrine “actually thwarts the purpose which it is designed to achieve” by inhibiting broadcasters from covering controversial issues of public importance. In other words, to avoid the fairness doctrine’s compliance requirements, licensees were avoiding controversial topics altogether.

The FCC further found that the scarcity concept upon which Red Lion rested was no longer factually supportable. The FCC stated that there had been “an explosive growth in both the number and types of outlets providing information to the public” and that:

We believe that the dramatic changes in the electronic media, together with the unacceptable chilling effect resulting from the implementation of such regulations as the fairness doctrine, form a compelling and convincing basis on which to reconsider First Amendment principles that were developed for another market. Today’s telecommunications market offers individuals a plethora of information outlets to which they have access on a daily basis. 

The FCC also took a different approach in that it did not believe “that any scarcity rationale justifies differential First Amendment treatment of the print and broadcast media.” The FCC held that “there is nothing inherent in the utilization of the licensing method of allocation that justifies the government acting in a manner that would be proscribed under a traditional First Amendment analysis” and that “the fact that government is involved in licensing is all the more reason why the First Amendment protects against government control of content.”

Having determined that the fairness doctrine had been rendered unnecessary and counterproductive to the public’s right to be informed, the FCC repealed it.

News distortion standard: Like the fairness doctrine, the news distortion standard is a creation of the FCC under the public interest obligation and is not expressly required by the Act. Its roots are in the fairness doctrine, where the FCC first raised the concept of news distortion in Editorializing by Broadcast Licencees, stating that a licensee should not “distort or suppress the basic factual information upon which any truly fair and free discussion of public issues must necessarily depend.” 

To constitute news distortion, the report “must involve a significant event and not merely a minor or incidental aspect of the news report” and reflect that “broadcasters are only subject to enforcement if it can be proven that they have distorted a factual news report.” Any expressions of opinion or errors stemming from mistakes do not constitute news distortion.

The FCC makes it clear that the news distortion standard only applies to broadcast licensees and not to cable news networks, social media, newspapers, streaming, or other platforms that are outside of the FCC’s jurisdiction.

A prominent example of FCC application of the news distortion standard came in 1969 following complaints regarding the 1968 CBS documentary Hunger in America, a controversial program that was critical of government attempts to alleviate poverty. The opening segment took place in a San Antonio hospital with infants in dire circumstances and showed a baby whom the documentary said was “dying of starvation.”

Complaints were filed with the FCC challenging the factual accuracy of the statement because the baby had died of causes related to premature birth rather than malnutrition or starvation, as confirmed by the infant’s death certificate. The FCC deferred the renewal of CBS station broadcast licenses pending its investigation.

The FCC found that while CBS had a reasonable basis for assuming a very high prevalence of malnutrition in the nursery and pediatric wards, the issue came down to whether “CBS nevertheless engaged in sloppy journalism or was recklessly indifferent to the truth in not ascertaining the cause of death….” Adopting a narrow application, the FCC stated that its concern was whether “the licensee has deliberately distorted or slanted the news.” 

Based on its investigation in that case, the FCC determined that no further action was warranted with respect to slanting the news and allowed the licenses to be renewed. The inaccuracy at issue (as to an infant’s death) appeared to have resulted from conversations between CBS News crew members and health care staff rather than from an effort to deliberately distort or slant the news.

The FCC made it clear that in the future it did not intend to defer action on license renewals because of the pendency of these types of complaints “unless the extrinsic evidence of possible deliberate distortion or staging of the news… involves the licensee, including its principals, top management, or news management.”

Additionally, the FCC stated that it would “eschew the censor’s role, including efforts to establish news distortion in situations where Government intervention would constitute a worse danger than the rigging itself.” The FCC found that “it is vital that the media be subject to scrutiny by critics, and there is, we think, no better way than for news competitors to be constantly checking on each other.”

News distortion, Biden, and Trump: Two notable proceedings at the Biden FCC raised news distortion complaints. One involved a 2023 Petition to Deny the license renewal of WTXF-TV in Philadelphia, a Fox network affiliate. It was filed by the Media and Democracy Project (MAD), a self-described grass roots membership organization advocating for a “more informative and pro-democracy media operating in the public interest.” 

MAD alleged that it was not in the public interest to renew WTXF’s license because, in a summary judgment ruling, a Delaware court determined that the Fox News cable channel, a separate entity from WTXF, had disseminated untrue statements relating to Dominion Voting Systems’ voting machines and the 2020 presidential election. MAD believed that it had made a prima facie case for a violation of the FCC’s news distortion policy because Fox News “intentionally manipulated its audience” and because of the court’s finding that Fox News’s claims regarding Dominion were false. (Fox News agreed to pay Dominion $787.5 million to settle the Delaware litigation.)

The FCC Media Bureau rejected MAD’s petition and found that renewal of WXTF’s license was in the public interest. It held that Section 309(k)(1) of the Act provides that the FCC “shall grant the [renewal] application if it finds [that] has served the public interest, convenience and necessity.” To the extent MAD alleged news distortion, it failed to establish a prima facie case that WTXF ever disseminated false information—the Delaware court decision pertained only to the Fox News cable network. MAD had not provided “anything that might support a claim that the false statements disseminated on Fox News were broadcast on WTXF-TV.” The petition was therefore denied and WTXF’s license was renewed.

Another proceeding involved a 2024 complaint filed by the Center for American Rights (CAR), a public interest law firm “dedicated to protecting Americans’ most fundamental, constitutional rights.” CAR alleged that WCBS-TV, a broadcast station licensee, engaged in news distortion by airing a CBS network “60 Minutes” interview with Vice President Kamala Harris in October 2024 by engaging “in news distortion by editing its news program to such a great extent that the general public cannot know what answer the Vice President actually gave to a question of great importance on a matter of national security policy.” As relief, CAR asked that CBS be compelled to release the complete transcript of the interview.

The FCC Enforcement Bureau rejected CAR’s complaint, finding it conclusory and running contrary to the longstanding principles that the FCC “does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism,” and that a newsroom’s decision “about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them.” Citing Hunger in America, the Enforcement Bureau stated that a news distortion enforcement action turns on the important question of whether any information or extrinsic evidence was submitted to the Commission indicating an “intentional” or “deliberate” falsification of the news. It found that the CAR complaint failed to do so and therefore denied the complaint.

Shortly after the change in administration and despite the denial of the complaint, in February 2025 the FCC opened CAR’s news distortion complaint for public comment while it also was reviewing for approval of Skydance’s proposed acquisition of Paramount (the owner of CBS and licensee stations). Chair Brendan Carr stated that the matter was opened given the “value of transparency and demonstrated interest” in this matter and that “the public interest would be served by making the transcript and video available.” This docket remains open as of the date of this writing.

Scarcity and the public interest

Today’s media landscape is dramatically different from when the fairness doctrine and news distortion standard were developed under the concept of scarcity and its relation to the public interest. In the past, two, three or four television stations and a few radio stations in a community were common. Cable channels, social media, streaming and podcasts didn’t exist. While community newspapers were widely available, the options for electronic news and information were often limited.

Today, the importance of broadcast licensee sources for news and information is significantly diminished. Whether via cable, YouTube, X, podcasts, online newspapers, or other sources, Americans now have many more options for news and information. While there may still be a limit on the amount of available spectrum and its use, there is certainly no scarcity of news and information sources.

Americans now watch more streaming on television sets than cable and network television programming combined. An August 2025 Nielsen report found that streaming reached a new high of total television usage with 46.4 percent of viewership, while broadcast (19.1 percent) and cable (22.5 percent) combined represented 41.6 percent of viewership. And while over the air radio continues to have strength, particularly in cars, an Edison Research report indicates that 79 percent of those age 12 and older listen to online audio monthly.

As for news, a 2024 Pew Research Center report found that 57 percent of American adults say they often get news from a smartphone, computer or tablet, with 86 percent saying they do so at least sometimes. The report found digital devices to be “by far the most common way Americans get news,” with only 33 percent often getting news from television. The Reuters Institute for the Study of Journalism Report 2025 stated that traditional media is losing influence and that 54 percent of Americans now access news via social media and video networks.

This transition will continue, further diminishing the importance of broadcast. Yet while today’s news and information media landscape is dramatically different from a few decades ago, the FCC’s news distortion standard and its historic interpretation of the public interest have remained essentially unchanged since the Reagan FCC found that “the interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today” in 1987. The FCC was so certain of its finding that it went so far as to say that its review of the constitutional principles and technological developments led it to “conclude that it would now be appropriate for the Supreme Court to reassess its decision” and its reliance on scarcity.

A foundation stone of freedom

Today’s FCC should move with the same deregulatory conviction. The scarcity rationale is a relic and no longer useful in evaluating the public interest. Viewpoint diversity and the public interest in the public’s right to be informed are fully served by countless news and information sources.

As the FCC clearly states, this regulatory regime only applies to broadcast licensees and not to cable news, newspapers, social media, streaming and podcasts, creating a nonsensical regulatory regime of disparate treatment that is meaningless to consumers. When watching a broadcast station licensee on cable or a streaming platform such as Hulu or YouTubeTV, does a consumer even consider whether the content is provided by an outlet that has a license to broadcast over the air? Exactly what public interest is served by regulating licensees with a news distortion standard when consumers also routinely obtain news and information from cable channels, online newspapers, social media and podcasts that are not subject to it?

Even with the requirements that any distortion or slanting must have been deliberate, not in error or unintentional and at the behest of management, threats of news distortion complaints chill broadcast licensees who want to avoid complaints, regulatory proceedings, and the risk of license revocation or nonrenewal. A licensee who wins a case still incurs the cost of defending it and uncertainty regarding its license. Indeed, the FCC found with the fairness doctrine that “in order to attenuate the possibility that opponents, in a renewal proceeding, will challenge the manner in which a licensee provides balance” the licensee may be inhibited from presenting a controversial issue.

The risks persist today. The FCC approved the proposed Skydance-Paramount merger in July 2025, but in so doing relied on Skydance’s commitment to “promote transparency and increased accountability” by having an ombudsman in place for at least two years who will report to the President of New Paramount and “who will receive and evaluate any complaints of bias or other concerns involving CBS.”

In his statement on the FCC approval, Chair Carr stated, “Skydance will also adopt measures that can root out the bias that has undermined trust in the national news media. These commitments, if implemented, would enable CBS to operate in the public interest and focus on fair, unbiased, and fact-based coverage.” 

Whether a news organization is biased is in the eye of the beholder and is not a determination for the FCC. And if a news organization is biased, it has a First Amendment right to be so whether it has a broadcast license or not. In fact, the Supreme Court has said that “this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.” The FCC should adhere to this principle.

The Supreme Court has also found that government officials cannot use the threat of invoking legal sanctions and other means of coercion to suppress disfavored speech. Regulatory processes should therefore not be used to impose conditions on a broadcast licensee that are aimed at influencing the content of its news and information, including to “root out” bias.

The CAR news distortion complaint against CBS became a tool for leveraging Skydance/Paramount to accede to conditions on news reporting in order to receive FCC merger approval. This demonstrates how a regulatory hook such as the news distortion standard can be used to pressure a licensee’s provision of news and information content, particularly when the licensee is seeking FCC approval for something significant such as a merger. 

This is not a new concern. The fairness doctrine showed the risks to fundamental First Amendment freedoms that can occur when government intervenes with the press. Citing the 1985 Fairness Report, the FCC found:

the Commission expressed concern that the fairness doctrine provides a dangerous vehicle – which had been exercised in the past by unscrupulous officials – for the intimidation of broadcasters who criticize governmental policy. It concluded that the inherently subjective evaluation of program content by the Commission in administering the doctrine contravenes fundamental First Amendment principles. We reaffirm these determinations and find that enforcement of the fairness doctrine necessarily injects government into the editorial process of broadcast journalists.

Indeed, the 1985 Fairness Report found that political officials “have not been loathe to criticize the manner in which broadcasters have aired controversial matters of public concern and at times the criticism has been accompanied by overt pressure to influence the manner in which these issues are covered.” The report cited Nixon administration discussions to pressure broadcast licensees and respond to alleged unfair coverage by showing favorites with the media, establishing “an official monitoring system through the FCC” and issuing “official complaints from the FCC.”

The better path is clear. Congress didn’t define in Section 309 what it meant by broadcast licensees serving the public interest, but it did expressly speak in Section 326 where it placed clear limits on the FCC in its directive that “no regulation or condition” shall interfere with the right of free speech. Any interpretation of a broadcast licensee’s public interest obligation should reflect Congress’s clear prohibition on regulating or conditioning speech, something the news distortion standard clearly does.

The public interest lies in the freedom of broadcast licensees and all news and information providers to engage in journalistic and editorial practices as they see fit. As the FCC found in Hunger in America, if there is a concern that a broadcast licensee has engaged in biased, distorted or slanted reporting, the most effective check on that reporting is from alternative voices countering such speech in the competitive marketplace for news and information. Indeed, the FCC’s finding in the 1985 Fairness Report that the “interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace” rings even more true today. 

The public interest is not built upon government regulation that inevitably inhibits a broadcast licensee’s First Amendment right to provide news and information and the public’s right to receive it. Instead, it is built upon the foundation stone of freedom.

As the FCC found regarding the fairness doctrine, where the news distortion standard has its roots, the news distortion standard disserves “both the public’s right to diverse sources of information and the broadcaster’s interest in free expression.” The FCC should therefore discard the concept of scarcity, embrace the reality that freedom rather than the regulation of news and information serves the public interest and abolish the news distortion standard. 

Conclusion

Well-meaning attempts to increase the public’s knowledge and access to news and information, such as the fairness doctrine and the news distortion standard, fail to serve the public interest and instead create chilling effects on speech and inhibit news coverage. The answer to biased, distorted or slanted reporting is in the multiplicity of voices that serve to counter other voices in the marketplace of news and information.

Regulating the content of a few voices because they have licenses tilts the regulatory playing field and fails to recognize today’s wide array of sources for news and information. As the FCC found in overturning the fairness doctrine, “the fact that government is involved in licensing is all the more reason why the First Amendment protects against government control of content.”

Nothing serves the public interest more.

About the author

Brian A. Rankin is an Adjunct Fellow at the Competitive Enterprise Institute who focuses on communications and technology issues. He is an attorney with more than 30 years of experience practicing law for cable, telecommunications, and technology companies. His practice has included regulatory and policy matters, including advocacy before federal, state and local agencies, as well as counsel for business operations, mergers and acquisitions and other transactions.