ABC asks judge to block FCC early license review

An attorney for Disney's ABC asked a federal judge on Tuesday to block the Federal Communications Commission from conducting an early review of the network's broadcast licenses, saying the regulatory proceeding was initiated to retaliate against ABC over content that offended the Trump administration.

During a roughly two-hour hearing in federal court in Washington, D.C., ABC argued that comments from President Trump and FCC Chair Brendan Carr laid bare the true reasons behind why the regulatory agency took the unprecedented step in April of ordering eight television stations owned by ABC and its parent company to submit renewal applications for their broadcast licenses years ahead of schedule. 

Those licenses were originally scheduled for renewal between 2028 and 2031.

"They are retaliating with their government power to stop ABC from exercising their protected First Amendment speech," said Beth Wilkinson, an attorney for the company.

Wilkinson at one point used the French Revolution to illustrate the FCC's actions, arguing the agency was effectively forcing the broadcast company to sit with its "head on a guillotine" while it awaits a decision about the licenses.

As the process plays out, she said, the regulatory action is having an immediate chilling effect on how ABC makes editorial decisions. Some of those decisions could in turn lead the FCC to "give us the corporate death penalty and take away our licenses," she said. 

In her remarks, she highlighted a speech that Mr. Trump made at the White House in July, in which he chastised ABC and NBC for not broadcasting the speech and called for their licenses to be revoked. Those remarks, she said, represented a "direct threat" to her client.

"People may not like some of ABC's coverage and the president is entitled to it, but the public has the right to be exposed to different speech and viewpoints," she said.

The Justice Department, which is defending the FCC, has argued that the agency's decision in April to order an early license review was triggered by Disney's failure to adequately respond to an ongoing investigation into the company's diversity, equity and inclusion practices. 

ABC "refused to adequately respond" to the FCC's anti-discrimination probe, said Dimitar Georgiev-Remme, one of the Justice Department's attorneys representing the FCC in the case. "The commission decided to look for information that it needed by calling for early renewal of plaintiffs' broadcast license."

Tuesday's legal arguments centered primarily on whether Disney and ABC have legal authority to challenge the FCC's early license renewal process in the district court.

The Justice Department argues that the regulatory process that governs license renewals would require a company to appeal an FCC order to the full commission. After that, any adverse decision can only be heard by a federal appellate court — and not a U.S. district court.

ABC, however, alleges that the type of retaliatory conduct it is facing in this case falls outside the scope of the regulatory appeals process prescribed by Congress, and this is the only way the company can seek relief to address the immediate harm it is facing.

In one such example of harm, Wilkinson said the network has changed the ways in which it covers political topics, noting that the talk show "The View" has changed how it selects the clips it uses in the show. 

Comedian Jimmy Kimmel, a longstanding critic of Trump, also separately posted his interview with Democratic Texas Senate candidate James Talarico on YouTube rather than airing it with the network, she added.

Wilkinson said that even if the company had sought to appeal the April decision to initiate an early license renewal, the commission has the power to sit on the matter indefinitely.

She also noted that if the FCC ultimately decides to renew the licenses at the end of the process, ABC will have no effective legal remedy to address the harm it has suffered.

U.S. District Judge Loren AliKhan, a Biden appointee, at times appeared skeptical at the government's claim that the FCC initiated the early license renewal process in order to get more information for its anti-discrimination investigation.

When she asked the Justice Department what other llegal tools it has at its disposal to compel ABC to provide the requested data, Georgiev-Remme could not provide an immediate answer, prompting the judge to ask the government to file a brief addressing her question by Oct. 9.

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Inside Disney and ABC's First Amendment rights as they sue FCC over early license renewal