Jessell | O’Rielly’s Firing Ominous Turn For FCC

Harry Jessell

One of my great fears upon the inauguration of Donald Trump was that he would try to use the various levers of government to punish media that were critical of him and his policies. During the campaign, he had been relentless in expressing his antipathy, bellowing about “crooked media” and “fake” news and threatening to weaken libel protections.

But I took comfort in that the FCC was not one of those levers so easily pushed. Although the president appoints the commissioners, he has no direct authority over the agency and its deliberations.

Created by Congress to handle the nitty-gritty of implementing communications laws, the FCC is supposed to be an independent agency. The chairmen report to no one, although it’s wise that they play nice with the lawmakers who oversee the agency and pay the bills.

This is not to say that the White House doesn’t step over the line from time to time. During the Obama administration, then FCC Chairman Tom Wheeler took a much tougher stand on net neutrality than he wanted after hearing from the White House.

I was also reassured when Trump promoted Ajit Pai from the ranks of the commissioners to be chairman after meeting him and giving him the once over.

Although he was first appointed to the FCC by Obama, Pai was a solid Republican who had no prior political ties with Trump. Having watched him in action for years, I figured he was smart enough and confident enough to avoid being pulled too deeply into the Trump maw. For the most part, he appears to have succeeded.

He upset Trump when he scuttled Sinclair’s bid to acquire Tribune and he publicly schooled the president on the limits of FCC power after Trump demanded NBC lose its TV station licenses for a news report that he didn’t like.

On the other hand, some say Pai caved to pressure from Trump last fall in deciding that excess C-band satellite spectrum should be auctioned by the FCC rather than its current licensees.

But that slip, if true, is not what has me once again concerned about undue Trump influence at the FCC.

It’s this.

Trump last week essentially fired Republican Commissioner Michael O’Rielly, who was once seen as the successor to Pai. The president withdrew the nomination for a third term that was pending in the Senate.

O’Rielly’s crime was not that he was critical of Trump, only that he was not sufficiently enthusiastic about Trump’s controversial proposal that the FCC appoint itself overseer of social media and make sure they are not biased in censoring or tagging posts.

Trump is miffed that Twitter tagged one of his posts, and conservatives are convinced that all the big tech companies are somehow working against them.

Instead of lauding the proposal as another example of Trump’s soaring political genius as his fellow Republican commissioner Brendan Carr did, the thoughtful O’Rielly expressed “deep reservations” about the FCC’s authority to regulate social media.

Trump also might have misconstrued remarks made by O’Rielly on July 31, just before he sent the pink slip. In a Media Institute speech, the commissioner warned of “certain opportunists elsewhere who claim to be the First Amendment’s biggest heroes but only come to its defense when convenient and constantly shift its meaning to fit their current political objectives.”

Then this: “It is time to stop allowing purveyors of First Amendment gibberish to claim they support more speech, when their actions make clear that they would actually curtail it through government action.”

Taken out of context, the comments appear to be a direct assault on the Trump social media proposal, which has been criticized here and elsewhere as a First Amendment threat cloaked as a First Amendment safeguard.

O’Rielly, a lawyerly man who measures his words, prefaced his remarks with a clear disclaimer that they were “not in any way directed toward President Trump….”

Apparently, Trump doesn’t bother with the fine print.

From what I can gather, the withdrawal of a pending nomination is unprecedented. As such, it sends a loud and clear signal that Trump now expects nothing but absolute loyalty from his FCC appointees.

It also opens the door for Trump to assert full control over the commission should he manage to win a second term in November.

Here’s how.

He names a replacement for O’Rielly who you can bet will be solidly in his camp. He or she will make Carr look like James Comey. No wishy-washy Goldwater or Reagan Republicans with actual conservative principles need apply.

The norm for the past two decades has been for the White House to defer to Congress in the selection of the commissioners other than the chairman. But we all know what Trump likes to do with norms.

Most FCC chairmen serve only for one presidential term. So, I expect that Pai will be taking his leave early next year, creating another opportunity for Trump to pack the commissioners whose first duty will be to him rather than the Communications Act or even the Constitution.

(If Pai is not preparing to leave, he should seriously give it a thought before his reputation gets shredded by a deeper association with Trump.)

Then, it remains only for Trump to decide which of the Republicans — Carr, the O’Rielly replacement or the Pai replacement — should get the chairmanship. The prize will go to whomever he sees as most pliable.

Trump will then have complete control over the agency — three votes including the chairmanship. He’ll be able to do anything he wants. He will be able to use the agency to advance any policy or to punish any FCC-regulated company. The broadcast license will become a cudgel in his hand. Media mergers will be subject to his whims.

Late last week, there was talk that some of O’Rielly’s patrons on Capitol Hill, including Senate Majority Leader Mitch McConnell, were trying to persuade the president to reconsider and restore O’Rielly.

They might succeed. Even the Wall Street Journal thought he was treated unfairly. “This is regrettable because he has been a champion of innovation and deregulation, especially in areas without glamor such as misuse of 911 fees or anachronistic rules on children’s programming. The episode is a warning that the left isn’t the only movement that demands ideological conformity.”

NAB President Gordon Smith ran to his side with a statement. “Mike O’Rielly has been a sterling public servant for as long as I have had the privilege of knowing him, a span of time covering my years in the Senate and throughout my time leading NAB. He is the consummate professional — smart, diligent, honest and fair.”

But whether O’Rielly stays or goes won’t matter in terms of the outsized influence Trump will have if he wins a second term. If O’Rielly goes, Trump finds someone else who will do his bidding. If he stays, Trump will own him. O’Rielly will have sold his soul.

Trump may not have known what the FCC was when he was elected president four years ago. But he does now. And if reelected, his people — not Obama holdovers like Pai and O’Rielly — will be running the place.

Let me restate that: A powerful man who believes that ABC, CBS and NBC news are the “enemy of the American people” will have his way at the FCC.

Harry A. Jessell is editor at large of TVNewsCheck. He can be contacted here. You can read earlier columns here.