Back in 2019, when he was a member of the Federal Communications Commission and viewed as a reliable, free-market kind of guy, Brendan Carr summed up decades of regulatory overreach in just eleven words: “The FCC has historically micromanaged the business operations of local broadcasters. And it must stop.”
A remarkably clear statement, coming from a Washington regulator. And, more importantly, a correct observation. Now, seven years later, and with Carr now the FCC’s chairman, he seems to have forgotten his own advice.
At the end of July, Carr announced the launch of investigations into recent affiliation agreements between television networks and local station owners. These freely arrived-upon agreements determine which local stations in what markets will carry which national networks’ news, sports, and primetime programming.
Carr has singled out leading affiliate groups like Gray Media and Hearst by name, warning that some of their stations’ recent changes in affiliation could cause problems for them when their FCC broadcast licenses come up for renewal or, perhaps, “much sooner.”
It’s not that these agreements violate a clear statutory prohibition or that the government suspects fraud or collusion. The chairman just doesn’t like where the market’s heading, worrying that some local stations’ affiliation choices may be giving national networks too much bargaining power.
Carr believes broadcasters may be making deals that are helpful to them in the short term but damaging to local television in the long run. And he may be right. But that’s not a matter for his concern. Television networks and station owners need to consider viewers, advertisers, and shareholders when negotiating agreements. Gray, Hearst, Sinclair, Nexstar, and other station owners, and the broadcast networks, employ people to evaluate the trade-offs in any agreements. And they risk their own money and reputations if they guess incorrectly.
Brendan Carr has no skin in the game. Yet he’s placing himself in the middle, making pronouncements about which agreements strengthen local television and which don’t while threatening government action against companies that reach conclusions different from his.
That’s the ugly façade of big government, and there’s nothing conservative or free-market about it. Carr is trying to have the government pick the winners and leave the losers with no recourse, pure and simple. And it’s not the first time he’s strayed from the principled positions he once advocated.
The FCC will soon vote whether to eliminate the national television ownership cap that prevents any single station group from reaching more than 39% of American households. Congress wrote that limit into federal law more than two decades ago.
That’s a problem. The FCC cannot, and Brendan Carr cannot, change public policy set by Congress on a major question just because he wants to. Many free-market economists believe the cap is outdated and that a new approach to the question of ownership limitations is needed, but the point remains: if a change must be made, it must be Congress that makes it.
Carr nevertheless has made plans to eliminate the bright-line 39% cap, replacing it with a “granular, case-by-case review.” What he is proposing would leave broadcasters without clear guidelines to follow and dependent on commissioners—or, worse, agency staff—determining whether each proposed transaction promoted their subjective conception of the “public interest.”
Clear rules restrain businesses and regulators. Everyone knows where the boundaries are, and regulators must apply them equally. Case-by-case discretion empowers the regulatory state, thereby strengthening it. That’s not the way to get freedom from regulation, as Carr and others call it. It leaves government officials free to approve transactions they like, reject those they dislike, demand concessions and reward favored companies.
That is what the regulatory state looks like in its purest form: less law, more power.
Advocates for deregulation used to recognize the danger in that proposition. We spent decades criticizing Democrats and Republicans who believed every business decision had to be supervised by an enlightened, disinterested Washington expert. We objected when bureaucrats stretched vague “public interest” authority to pursue outcomes Congress never authorized. We demanded predictable rules, equal treatment and limits on administrative discretion.
Those principles do not go out the window just because Brendan Carr used to be a reliable ally. Every power he claims today will eventually pass to a successor who believes more regulation is necessary to protect consumer welfare, or who just throws that long-held standard into the waste basket.
That person will be empowered to use the same affiliation investigations, license-renewal threats, and case-by-case merger reviews to punish some companies and reward others who have the “correct” record of political donations and policies on DEI. Carr and whatever allies he still has will then object, but it will be too late. After establishing that the FCC may manipulate marketplace outcomes whenever its chairman invokes the “public interest,” they will have no limiting principle left to invoke.
Carr had it right in 2019. Decisions about broadcasters’ programming and business operations generally belong in the marketplace, not in the pages of the Code of Federal Regulations—and certainly not in the personal judgment of one appointed official.
The FCC has historically micromanaged local broadcasters. It must stop. Chairman Carr should follow the advice Commissioner Carr once gave.
Peter Roff is a veteran journalist who covered politics and public policy for U.S. News & World Report, United Press International, and other outlets. He regularly produces commentary on current political and public policy matters. You can reach him at RoffColumns AT GMAIL.com and follow him on social media @TheRoffDraft.
Views expressed by guest contributors to Issues & Insights are their own and don’t necessarily reflect the views of the I&I Editorial Board.
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