The primary U.S. media regulator doesn’t have much it can do to punish Fox News for spreading false claims about the 2020 election.
It could, theoretically, target Fox Corp. Chair Rupert Murdoch and some of his Fox broadcasting affiliates.
The Federal Communications Commission’s oversight of Fox’s broadcast licenses means it could bring its power to bear on Murdoch for his admission that he could have stopped Fox News from spreading misleading claims about Dominion Voting Systems, which by extension helped spread the lie that the 2020 election was stolen.
“But I didn’t,” Murdoch said in a deposition for the lawsuit, in which Dominion is asking for damages of $1.6 billion.
Experts who spoke with NBC News don’t expect action, citing how the FCC has changed over time and the difficulty in bringing major challenges when its power is relatively limited.
The FCC’s most relevant power in relation to Murdoch is the granting of broadcast licenses, in which it allows private companies to use public airwaves as long as certain criteria are met. Among the criteria is what it calls “character qualifications,” which can include felony convictions, as well as other court rulings.
But the FCC has far less power when it comes to cable TV channels, which don’t use public airwaves for transmission.
“The election fraud lies happened on Fox News, which is not regulated by the FCC,” said Jessica Gonzalez, a co-CEO of the media advocacy group Free Press. “But Murdoch owns a number of broadcast stations, and I think it would be fair for the FCC to ask whether he is of fit moral character to own those licenses in light of recent revelations that Murdoch knew the election fraud claims were lies and allowed them to air.”
And while calls for the FCC to act are still relatively scarce, some people are beginning to wonder why it hasn’t at least said something.
“Since the Second World War the FCC has had a responsibility to encourage a culture of both free speech and truth in the media,” tweeted Reed Hundt, who chaired the FCC during President Bill Clinton’s first term in office. “But the Fox story reveals them to be an either/or choice for that firm at least. Shouldn’t the FCC at least comment?”
In a phone call, Hundt said the evidence made public by the Dominion case is enough for the FCC and possibly the Federal Trade Commission to launch an investigation. He said a series of questions could be posed to Murdoch and Fox Corp., most notably whether false claims about the election or even other topics, such as the Covid pandemic, spread through Murdoch’s other businesses, including its broadcast affiliates.
“That’s the question of the investigation: Is it systematic across all of the coverage?” Hundt said.
Hundt theorized that the FCC could act if an investigation found misleading information had spread through Fox Corp.
“Those licenses are supposed to be held only if you serve the public interest,” Hundt added. “Intentionally lying to people is not consistent with the public interest.”
The FCC didn’t immediately respond to a request for comment.
A Fox News spokesperson directed inquiries about possible FCC action to Fox Corp. A spokesperson for Fox Corp. declined to comment.
Few people familiar with the FCC expect action. The regulator has in decades past sought to aggressively enforce its rules and forced media companies to break apart. That began to change after a broader deregulation movement in the 1980s.
“Through decades of neoliberal governance, we’ve rendered our regulatory agencies almost powerless in many cases, and I think that’s a problem,” said Victor Pickard, a professor of media policy and political economy at the University of Pennsylvania who has written about the history of the FCC.
The FCC’s role in regulating interstate and international media in the U.S. is primarily focused on the business side, promoting competition and encouraging innovation and investment. And what little power it does have over content has dwindled. The FCC has oversight of public airwaves, which are no longer the communications bottlenecks they once were.
Fox has faced some FCC challenges before on other grounds. In 2012, a handful of watchdog groups called for the FCC to revoke Fox’s licenses over Murdoch’s connection to a voicemail hacking scandal. The FCC chairman at the time said the regulator took the situation seriously, but no major was action after that. And in 1995, the FCC under Hundt investigated Murdoch’s News Corp. for 17 months over whether Murdoch’s control of eight Fox stations violated foreign ownership rules. Murdoch is Australian and became a U.S. citizen in 1985.
Andrew Schwartzman, a senior counselor at the Benton Institute for Broadband and Society, said in an email that the FCC has historically not aggressively enforced the character policy and has “twisted itself into knots weakening and not enforcing” it.
An attempt to use Murdoch’s oversight of Fox News to go after Fox Corp. could end up falling well short of the FCC’s modern enforcement of its character policy.
“In essence, just about the only thing that is actionable is a felony conviction of a principal who is involved in the day to day management of a station (‘broadcast-related misconduct’),” Schwartzman said by email. “The only other capital offense at the FCC is lying to a federal agency in a material way.”
Schwartzman also noted that the time frame for such a move would be long — licenses are revoked only when they’re up for renewal, once every eight years.
“So, it is almost impossible to lose a license for nonbroadcast-related misconduct and, even if there were a strong case, it likely couldn’t be brought for five years and the litigation would last for years more,” Schwartzman said.
The FCC’s makeup makes it particularly unlikely to agree on a partisan decision. It is usually governed by a board of five Senate-confirmed commissioners — three from the president’s party and two from the opposition. But President Joe Biden’s FCC has been stuck in a rare 2-2 deadlock. Biden’s pick to be the fifth commissioner, Gigi Sohn, was the target of an unprecedented smear campaign. She withdrew her candidacy Tuesday.
There are few examples of the FCC’s having revoked a license. In 1966, the Rev. Everett C. Parker mounted a successful legal challenge to the license renewal of WLBT-TV in Jackson, Mississippi, after the channel refused to broadcast an NBC News program in which Thurgood Marshall discussed the Supreme Court’s Brown v. Board of Education decision. Marshall would later join the Supreme Court.
But the FCC has changed considerably since then, as has the broader media and political environment in which it operates. Any such efforts would inevitably lead to significant pushback from Republicans, who have argued that the Biden administration has weaponized the U.S. government against conservatives.
Still, some hold out hope that the FCC could seize on the Dominion lawsuit to reassert its authority, possibly drawing on moments in history in which it flexed its regulatory might. Pickard of the University of Pennsylvania pointed to its move in 1941 to force the National Broadcasting Company (which would later come to be known as NBC, the parent company of NBC News) to divest one of its two dominant radio networks. The divested network would become ABC.