Musk, Trump and Republican Officials Take Aim at Broadcaster Spectrum

“The legacy broadcast networks are using public spectrum, but act as an extension of the Democratic Party. No more free lunch for them,” Musk posted Sunday on X. Trump has said that if he re-wins the White House, Musk will have a position in his administration auditing government efficiency. “The United States owns the spectrum, and it should only be auctioned for use by those who agree to be nonpartisan,” said Cantor Fitzgerald CEO Howard Lutnick, who heads Trump’s transition team, in a post on X Sunday. “Companies that do business with America shouldn’t be allowed to use that power for partisan politics,” Lutnick said. “Absolutely,” replied Musk in a response post.

“They're so biased, it's so disgusting,” Trump said of broadcast networks Friday during a rally in Michigan. “So why should they get a free license?” The government “gives a license to NBC fake news, ABC fake news, and CBS fake news,” Trump added, saying broadcast licenses are worth billions of dollars. Networks “pay nothing [for licenses]. They're public airways. They pay nothing,” Trump said. The FCC doesn't license broadcast networks, only individual stations. ABC, NBC and CBS didn’t immediately comment.

“Continued political threats to impede access to spectrum or revoke broadcast licenses based solely on a disagreement with the content of a station's programming undermine the fundamental principles of free speech and a free press,” said an NAB spokesperson responding to the Musk and Trump remarks. “Broadcasters are not given spectrum for ‘free.’” TV and radio stations “invest significant resources to provide local news, emergency alerts, sports and entertainment to their communities, and they provide these services for free to consumers over the airwaves while following strict FCC standards.”

Pillsbury broadcast attorney Scott Flick compared describing broadcast spectrum as free to describing land in the western U.S. the government gave to settlers as free. Both the licenses and land have likely changed hands many times since they were awarded, and the current owners paid significant sums for them, Flick said.

In his post, Lutnick described broadcasters as using taxpayer assets for “one party only.” Lutnick was himself responding to a post from investor David Sacks, who spoke at the Republican National Convention and is seen as close to Musk. Sacks said in his post that broadcasting is an “obsolete model” and its spectrum should be auctioned off to pay down the national debt. Auctioning will likely lead to “valuable spectrum ... [being] reapportioned to the next generation of wireless applications, unleashing many more interesting options for consumers and businesses,” Sacks said. “The networks can continue to operate on cable, like hundreds of other redundant channels.”

As a core FCC function, auctioning spectrum wouldn’t in itself violate the First Amendment, but doing so based on the content of a license-holder’s speech would, said Freedom Forum First Amendment specialist Kevin Goldberg. “When you say, 'We want to do this because we don't like the coverage,' that certainly raises First Amendment issues,” Goldberg said. While the courts would likely block any attempt to take away broadcast spectrum over a broadcaster's content, such threats influence broadcaster speech, Goldberg said. “Maybe the specific proposals ..., each and every one of them, [aren't] to be taken seriously, but the attitude is one I would certainly start to become afraid of,” Goldberg said. When government leaders threaten to take away broadcast licenses, it could affect broadcaster finances, such as stock prices or negotiations with banks for loans. Defending themselves from government efforts to take their licenses would also lead to expensive legal fees. These costs could lead to broadcasters altering their news coverage. “This is creating a nonstop chilling effect," Flick said.

The increasing frequency of threats to broadcast licenses should motivate broadcasters to seek to overturn Red Lion v. FCC, the 1969 U.S. Supreme Court case that underpins many FCC broadcast regulations, said Flick. In that decision, SCOTUS ruled that FCC could institute some speech requirements on broadcasters. These included the fairness doctrine, which later was eliminated by a Republican FCC on free speech grounds.

Overturning Red Lion and removing most of the FCC’s power over broadcast licensing would insulate broadcasters from political threats, Flick said. The public interest standard the FCC uses is “too malleable.” Broadcasters “can no longer trust that public officials are going to stay between the guard rails” as they did in the past. The American Action Forum earlier this month similarly called for Congress to limit FCC power over broadcasters to protect against political threats (see 2410080037).