DV Journal

The Federal Communications Commission recently opened public comment on the renewal of the broadcast license for WTXF-TV, a Philadelphia Fox affiliate—better known as Fox 29. Normally such a renewal would be a routine and hum-drum affair without public comment. However, this unusual move is being undertaken thanks to a petition from The Media and Democracy Project, which is asking the FCC to punish the station due to its affiliation with Fox News and controversy about news coverage questioning the legitimacy of the 2020 election.

This attempt to use government regulators to punish the exercise of First Amendment rights is disturbing, short-sighted, and an affront to the people of Philadelphia, the very birthplace of our Constitution.

One of the essential aspects of being a free people is the freedom of the press. It is not surprising that the First Amendment in the Bill of Rights explicitly protects Americans, and the press that serves them, from being silenced by the government. However, without a culture that values and defends these freedoms, the First Amendment becomes little more than ink on some old paper.

The fact that supposedly pro-democracy activists are seeking to weaponize the government to punish people they disagree with, and the fact that the FCC has decided to open the issue to public comment, demonstrates just how fragile our cherished freedoms are. What’s even more unusual in this case, is that the FCC hasn’t even announced how long it will be receiving comments—a procedural omission that lacks transparency. Add in the fact that the complaint is over merely one single hour of programming each week, the Fox News Sunday program carried by Fox 29. It is hard to interpret this move as anything but an attempt to dissuade other broadcast media from airing views with which The Media and Democracy Project, or anyone else able to raise a fuss, disagrees. What’s worse, failing to renew Fox 29’s license would also deprive Philadelphians of the Eagles’ Sunday games.

Beyond being fundamentally anti-American, this attempt to weaponize a regulatory agency to silence the press is extremely short-sighted. Today there is a Democrat president and a Democrat head of the FCC. Eventually there will be a Republican president and a Republican head of the FCC.

Up until now, FCC heads of either party have been explicit that the FCC does not have the authority to revoke a license based on the editorial content of the station. In response to calls by then-President Donald Trump to censor media that he disagreed with, the former Republican head of the FCC, Ajit Pai, stated in 2017 that “under the law, the FCC does not have the authority to revoke a license of a broadcast station based on the content…the FCC under my leadership will stand for the First Amendment.” The current head of the FCC, Democrat Jessica Rosenworcel, has stated that licensing renewals do “not involve the government making editorial decisions about content. Doing so would be an affront to our First Amendment tradition.”

If this bipartisan consensus on regulatory neutrality is lost,  there will be nothing to stop future presidents, of either party, from weaponizing the FCC to punish critics and incentivize favorable press coverage. The Media and Democracy Project may be displeased with Fox, but attempting to take out that displeasure via the government is opening a Pandora’s Box that assures only future strife and the further breakdown of the pro-free speech norms that are at the heart of our republic.

Ultimately, the assumption upon which this complaint rests is perhaps the most insulting and worrisome aspect of this entire ordeal. Complaining that Fox 29 aired falsehoods, and therefore must be punished by the government, is really saying that Philadelphians, viewers in the Delaware Valley, South Jersey and Delaware are too ignorant to look at the evidence and decide for themselves what they think is true and what is false and need guidance from “wise” bureaucrats who obviously know better.

It is a simple fact of life that well-intentioned people will disagree about what is true and what is false. Rational people can look at the same evidence and come to different conclusions. There are two ways to deal with this disagreement: we can either learn to live together despite our disagreements, or we can attempt to force those who disagree with us to be silent. History is full of attempts at the latter option and none of them have ended well. The First Amendment is America’s declaration that we have learned from this history of violence over deep disagreements and have chosen a different course.

So far, the FCC has withstood attempts by both sides of the political spectrum to punish “the other side,” but the fact that it has opened public comments on what should be a routine license renewal is worrisome.

However, people across the political spectrum who value our hard-won liberties, but especially those in the Philadelphia area, can use this as an opportunity to remind the FCC by commenting on its website that Americans still value free speech, don’t want to further inflame political tensions by turning it into a regulatory cudgel, and that we are more than capable of deciding for ourselves which news station to watch.

America is unique in the extent to which free speech and the press are protected from government censorship. It is only by continuing to be vigilant in defending these hard-won freedoms that we and our descendants can continue to enjoy and make use of them. At the end of the day, Philadelphians care about being home to the Constitution and the watching the Eagles win. The Media and Democracy Project is attacking both.

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Casey Mattox is an attorney specializing in the First Amendment and Vice President of Legal and Judicial Strategy at Americans for Prosperity.

Internet connectivity is essential in an increasingly digital world. That was no more evident than when the world shut down at the height of the coronavirus pandemic. The ability to be online and remain connected was not optional but vital to living during that time. Thus, it makes sense why policymakers and experts are trying to find ways to ensure internet connectivity is spread as far and as widely as possible today.

Unfortunately, many of those thought leaders have proposed tax hikes on big tech companies as a way of reaching this goal. The idea centers around a proposal outlined by Federal Communications Commission (FCC) Commissioner Brendan Carr in a May 2021 op-ed piece. Carr called for major tech companies to be forced to pay fees to fund the Universal Service Fund (USF) to fund internet infrastructure projects and to promote affordable access across the country. The proposal received some traction then and is still circulating, especially as opinions surrounding tech companies have become more polarized.

The argument goes that since a select few tech companies account for a disproportionately large amount of web traffic, they should have to “pay their fair share” to keep the internet up and running. Presently, traditional telephone services pay for that through fees that are imposed on consumers’ monthly telephone bills.

As with most arguments that rely on the “fair share” fallacy, that doesn’t tell the whole story. First, big tech companies are already investing in building out more internet to unserved parts of the country – and the world – precisely because of how much they rely on it. That sort of investment cannot just be hand-waved away because it’s not part of USF.

There is also no hard-and-fast way to ensure the tax on big tech companies will not get similarly passed on to consumers. Any time a tax is increased on a business, the company will have to compensate somewhere. That would likely involve price hikes in some, way, shape, or form. Not only would such a “big tech tax” damage existing investment and innovation from these companies, but companies would also undoubtedly respond by raising ad prices as well as the price of their various devices and services. All those costs inevitably reach the average consumer, contributing to the inflationary pain everyday Americans are already experiencing.

It is also important to note that funneling money into the USF may be for naught. The USF is on the verge of collapse. Contribution rates are falling and there is a reason policymakers in Congress and the administration are grasping for solutions. The USF – like other government programs – is in dire need of reform and simply throwing more money at will not immediately solve. Taking money away from innovators in the space is one of the more counter-productive solutions available.

Considering the volatility of the tech space, making the USF reliant on skimming big tech revenue could make the program even more unstable. For example, Meta’s market cap has taken a severe hit over recent months, losing billions in value in such a short period as the company’s revenue continues to take major financial hits. It would make very little sense to tie a vehicle like the USF to companies whose prospects can shift so drastically so quickly. It is a recipe for even more uncertainty in an already unstable program. Imagine tying the fate of the USF to companies like MySpace and Yahoo just a few years ago. The consequences would have been disastrous.

To make the plan viable, the government would have to actively prop up tech companies, creating another new “too big to fail” dynamic. Given the push to fund USF through big tech taxes likely stems out of a desire to rein in these tech companies, the proposal becomes even more counterintuitive. And, given how typical government bailouts work, the American taxpayer would be on the hook for even more cost because of government carelessness.

While delivering high-speed internet across the nation is an admirable goal, reactionary politics going after convenient political targets will never achieve that result. Policymakers need to take a sober-minded look at the USF and come up with reasonable ways to move forward, bearing in mind the interests of taxpayers as well, and potentially working with the companies who also have a clear stake in ensuring the longevity and proliferation of the internet to every corner of America.

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