FCC chairman's bind...

FCC chairman's bind: Defend Trump or free speech

By MARGARET HARDING MCGILL

FCC Chairman Ajit Pai is facing increasing pressure to distance himself from President Donald Trump’s threats against NBC — a course of action that would risk provoking the president’s Twitter-fueled wrath.

Democrats have refused to let the issue die in recent days, with FCC Democratic Commissioner Jessica Rosenworcel warning in a weekend television appearance that “history won't be kind to silence" on Trump's threats to the First Amendment. Pai could confront public questions about the issue as soon as Tuesday at a telecom law event in Washington, forcing him to choose between his longstanding defense of freedom of speech and the man who made him chairman.

If Pai weighs in, he risks repeating the pattern of other Trump appointees whose words and actions have drawn the president's ire and imperiled their positions in the government, such as National Economic Council Director Gary Cohn, Attorney General Jeff Sessions and Secretary of State Rex Tillerson. For instance, Cohn’s hopes of becoming chairman of the Federal Reserve have dimmed tremendously after he criticized the White House’s response to this summer’s violent neo-Nazi protest in Charlottesville, Va.

“Ajit is in a really very awkward situation, but I assure you he is on our side — we being the people who generally believe in free speech,” said Berin Szóka, president of libertarian group TechFreedom, which supports Pai's FCC agenda. “I think it’s unfair to jump up and down and insist that if he doesn’t pick a fight with the president, he doesn’t really care about the First Amendment.”

Trump made the threat to broadcast networks while venting at an NBC News report that he had sought a tenfold increase in the U.S. nuclear arsenal, a story he slammed as "pure fiction." He added: “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”

The FCC oversees licenses for individual TV stations, not networks like NBC, and telecom experts say it's highly unlikely the agency would follow through on Trump's threat. But Democrats are demanding Pai take a stand and pledge he will not judge broadcasters based on the president's approval of their news coverage.

“I am sure you can appreciate what kind of chilling effect a threat like this issued from the Oval Office might have on newsrooms — and especially on small and independent stations,” Sen. Richard Blumenthal (D-Conn.) wrote to Pai on Monday. “You have a duty to condemn this attack and reassure our nation and our journalists that you will stand up for them and protect and defend their fundamental freedoms.”

“He is making himself complicit in the coercion that the president was engaging in," former FCC Chairman Tom Wheeler, a Democrat, said in a weekend interview on CNN, calling Pai's failure to address the issue "shocking."

The stakes are high for Pai. Szóka outlined several scenarios in which Trump could act to retaliate if he doesn't like what the FCC chairman has to say.

For example, Trump could demote Pai to commissioner and elevate another FCC Republican, Mike O’Rielly or Brendan Carr, to chairman, although Szóka noted that both are probably similar to Pai when it comes to their positions on the First Amendment. Trump could also replace O'Rielly with a "loyalist" and name that person chairman when the term is up in 2019, Szóka said.

If Pai doesn't lay out his stance on Trump's tweets soon, Democrats will likely force his hand at an Oct. 25 House Energy & Commerce telecom subcommittee oversight hearing, with all five FCC commissioners invited to testify under oath.

“There’s a moment where they really get tested and it’s never a moment of their choosing,” Blair Levin, a former FCC chief of staff during the Clinton administration, said of FCC leaders. “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.”

Pai has a history of warning about government interference in newsrooms. In a speech last month, he expressed concern about attacks on free speech, noting that Twitter users regularly demand that the FCC take licenses away from Fox News, CNN and MSNBC over opinions expressed on the cable channels.

“Setting aside the fact that the FCC doesn't license those cable channels ... these demands are fundamentally at odds with America's cultural and legal traditions," he said.

While in the commission’s minority in 2014, Pai also took aim at a controversial survey of TV newsroom activities initiated by the FCC's then-Democratic leadership, warning the agency was inappropriately wading into media coverage. He cheered when the FCC pulled the plug on the survey.

“He has spoken generally on these issues previously and it is inconceivable to me that he would act, at the president’s behest or not, to take away a broadcast license except in the most egregious circumstances," said Gus Hurwitz, an assistant professor of telecom law at the University of Nebraska and visiting fellow at the American Enterprise Institute.

Hurwitz said Pai faces unpalatable options: He could issue a cautious statement and face criticism for not saying enough, or take a bolder stand, which might require him to recuse himself if the FCC ends up reviewing a license issue connected to Trump's tweets.

“If he would say anything that would satisfy his critics, he would put himself in a position where he has to recuse himself and that’s the last thing I think his critics would want,” he said.

Pai's supporters say Democrats are engaging in political theater to press the chairman to do something no one really expects — contradict the president of his own party.

Jason Pye, vice president of legislative affairs at FreedomWorks, pointed to Pai’s speech last month supporting freedom of the press.

“You have an FCC chairman who has already said no to that,” Pye said of Trump's threats to NBC. “Democrats are putting pressure on him to put him in a position with the president that is unfavorable," at a time when Pai is trying to roll back Obama-era regulations like the net neutrality rules, he said.