Chairman Pai's Silence -- Was It Good For You?

Submitted on October 19, 2017

Pai Breaks His Silence -- Was It Good For You?

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Robbie's Round-Up for the Week of October 16-20, 2017

History won't be kind to silence

Last week we shared A New Salvo in President Trump’s Offensive on the Free Press, to tell you about how President Donald Trump took to twitter to threaten to revoke the broadcast licenses of NBC. After six days of silence, Federal Communications Commission Chairman Ajit Pai this week finally made a statement on the matter. But his response was inadequate for many and demonstrated a troubling pattern with Pai’s views on freedom of the press.

The Hits Kept on Coming

The call for a response from Chairman Pai continued over last weekend after fellow FCC Commissioners Jessica Rosenworcel and Mignon Clyburn rebuked President Trump, saying that challenging licenses because the president dislikes news coverage would violate the First Amendment.

On October 15, Commissioner Rosenworcel appeared on CNN and said, “History won't be kind to silence. I think it's important for all the commissioners to make clear that they support the First Amendment, and that the agency will not revoke a broadcast license simply because the president is dissatisfied with the licensee's coverage."

Former FCC Chairman Tom Wheeler also joined in Friday, writing, “By their inaction, the Republican FCC commissioners have already violated their oath to uphold the Constitution.”

Chairman Pai & Commissioner O’Rielly Finally Respond

FCC Commissioner Michael O'Rielly was asked about President Trump's tweets during an appearance at a conference on spectrum management on Oct 13. "I'm pretty consistent on licensing and would not want politics to influence our decisionmaking," said Commissioner O'Rielly. "I believe in the independence of the agency." But O’Rielly didn't not stop there, adding:

I think that the president is rightfully venting his experiences and disappointment with how the coverage has been occurring regarding his administration. I've been surprised how vitriolic that the coverage has been. I think that President Clinton got better coverage during the middle of impeachment than President Trump is getting these days.

On October 14, in his first public appearance since the Trump tweets, Chairman Pai said that the FCC could not do what the President wanted:

Look, I will reiterate what I have said for many years at the FCC up to and including last month. I believe in the First Amendment. The FCC under my leadership will stand for the First Amendment. And under the law, the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast.

Asked a second time more directly if he would block a broadcaster’s license application based on content, Chairman Pai said he would “stand with exactly what I’ve said last month and for years at the FCC.” Pai did not mention the President by name.

Asked whether there was any role, "statutorily or morally" in deciding what was "fake news" and doing something about it, Chairman Pai answered, "Traditionally that has not been within the FCC's jurisdiction. I tend to be a lawyer by training and hew as closely as I can to the terms of the Communications Act and other applicable legal principles, so that is the standard that we adopt, at least going forward."

Just hours after his statement, Chairman Pai joined President Trump at the White House at a celebration of Diwali, the Hindu festival of lights. “Chairman Pai was honored to be invited to the Oval Office to celebrate Diwali alongside his fellow Indian Americans,” FCC spokesman Brian Hart said, adding that Pai did not speak with the President beyond a handshake and hello as President Trump greeted guests.

Response to Pai’s Statement: Too Little, Too Late

"Commissioner Pai's statement is a profile in cowardice," said Andrew Schwartzman, the Benton Senior Counselor at the Institute for Public Representation, Georgetown Law Center. "Unlike his predecessors, who have forthrightly stood up to Presidential interference, he continues to equivocate. He needs to say that President Trump has no right to interfere in the FCC's licensing process and he will ignore the President's pressure." For Chairman Pai to rule out revoking the license of an NBC station over its newscasts, then, is “stating the obvious,” said Schwartzman. He added that Pai declined to answer a more important question: Whether he would prevent a station's license from being renewed in the future amid political demands from the president.

“It’s already an embarrassment that the FCC seems incapable of speaking truth when it may be contrary to a presidential tweet.” -- former FCC Chairman Tom Wheeler

“This statement is better than nothing," said Senate Communications Subcommittee Ranking Member Brian Schatz (D-HI), “but it is merely a reiteration of the FCC’s authorities under the law. What we needed is a full-throated defense of the independence of the FCC against political interference. When the president announced his intent to retaliate against a broadcaster based on content, the FCC should have rejected it.”

House Commerce Committee Ranking Member Frank Pallone (D-NJ) agreed. “Chairman Pai was right to assure the public that the FCC cannot revoke any broadcast licenses based on the content of a specific newscast," he said, "but I am disappointed that the Chairman continues to remain silent on the President’s ongoing efforts to intimidate and threaten news outlets. The Chairman should therefore be prepared to commit—under oath, if necessary—that he will take no actions whatsoever to retaliate against news outlets in response to the President’s pressure.”

Senator Richard Blumenthal (D-CT) sent a letter to Chairman Pai on Monday, seeking Pai's public disavowal of the President's attacks. But Blumenthal was less than enthused by Pai’s statement on Tuesday:

Chairman Pai’s remarks do not sufficiently address my concerns – shared by newsrooms and journalists across the country – about a President who seems intent on curtailing their Constitutionally-guaranteed freedoms. The President’s comments were chilling and intimidating. What’s needed from the Chairman of the FCC is not just a restatement of the blackletter law, but a clear rejection and repudiation of the President’s suggestion, including a pledge to protect the free press from political interference.

Democrats on the Senate Commerce Committee sent a letter to the committee’s leadership calling out Chairman Pai for waiting so long to address the President’s statements:

The FCC Chairman’s failure to quickly respond and denounce these threats is shocking and raises questions about the ability of the FCC to truly act independently under Chairman Pai’s leadership. It is imperative that FCC Chairman Pai and his fellow Commissioners address this Committee and respond to the President’s stated desire for regulatory abuse of his perceived critics through the FCC. We therefore request an FCC Oversight Hearing as soon as possible.

Committee Chairman John Thune said, “If [Chairman Pai] gets in the habit of responding to all of Trump’s tweets ... as we all know, that can become kind of an all-consuming process. I think he probably said what needs to be said, I think we know what his position on the First Amendment is, and he would have a different view than what was articulated by the president in his tweet.”

Chairman Thune apparently has no plans to summon Pai before the committee again in 2017. “Chairman Pai has already appeared twice before the Commerce Committee this year,” committee spokesman Frederick Hill said. “The committee has no plans for an additional FCC oversight hearing this year.” Hill added that Chairman Thune “is confident in the FCC chairman’s commitment to the Constitution and the law, as well as his ability to distinguish political rhetoric from actual First Amendment threats.”

The House Communications Subcommittee, however, has scheduled an FCC oversight hearing with Chairman Pai and the other commissioners for October 25. The topic is bound to come up -- at least in questions from the subcommittees Democrats.

And, as we reported last week, Chairman Thune may be a bit off on the law here. Courts have ruled that public officials who try to shut down an avenue of expression of ideas and opinions through “actual or threatened imposition of government power or sanction” are violating the First Amendment.

The Cost of Trump’s Rhetoric and Pai’s Silence

While President Trump’s tweeted threats are ultimately unlikely to lead to any kind of broadcast license revocation, they are still harmful to the free press both in the U.S and abroad. Margaret Sullivan wrote this week that, “Trump’s constant press attacks carry a worldwide price — they hurt America’s ability to stand for democratic freedoms around the world.”

“When the president consistently speaks that way, there’s a loss of U.S. influence and credibility on matters of press freedom,” said Joel Simon, executive director of the Committee to Protect Journalists.

Tom Wheeler elucidated the cost of Chairman Pai’s delayed response:

By their silence, the Republicans at the FCC have joined in the president’s strategy to get into the head of every television station news editor and station manager in the country. If, because the FCC failed to make clear that the government can’t bully them, even one broadcaster thinks twice about a story and its effect on their license, then the Constitution has been abridged and the FCC is complicit.

Conclusion

FCC veteran Blair Levin noted this week that “There’s a moment where [FCC leaders] really get tested and it’s never a moment of their choosing. It’s always something that comes as something as a surprise. They have their agenda and it’s not an item that’s on their agenda. This is that kind of moment for Ajit.”

Tim Karr, senior director of strategy at Free Press, said, "This isn't the first time Pai had to respond to a Trump attack against journalists; and it likely won't be the last. Trump's assault on press freedom will continue until enough people -- including those like Pai who have been carrying out his agenda -- renounce the president in stronger and more direct terms."

For example, this week, Attorney General Jeff Sessions told a Senate Judiciary hearing that he could not promise "not to put reporters in jail for doing their jobs."

You can be sure to follow all news about our freedom of the press in Headlines. Here's links to our analysis of this issue dating back to January 2017:

Quick Bits

Weekend Reads (resist tl;dr)
Rosenworcel Testimony at US Senate Commerce Committee NH Field Hearing on "Expanding Broadband Infrastructure in the Granite State" (FCC)
Clyburn Remarks at the Media Institute (FCC)
ISPs don’t want to tell the FCC exactly where they offer Internet service (ars technica)
US withdrawal from UNESCO is blow for press freedom (CPJ)
What Facebook Did to American Democracy (The Atlantic)
Why Community Anchor Institutions Should Care About the Connect America Fund (SHLB)
The Future of Truth and Misinformation Online (Pew Research Center)