Former FCC staffers agree: Brendan Carr needs to be stopped

Several former Federal Communications Commissioners and staffers across parties are urging a federal appeals court to force a vote on the FCC’s news distortion policy, which they argue should be repealed after being abused by Republican Chair Brendan Carr.

On Tuesday, a group of petitioners asked the US Court of Appeals for the District of Columbia to require the FCC to vote on a petition to repeal the News Distortion Policy. The petition was filed by the bipartisan group of former officials in November of 2025, after Carr invoked the rule to pressure ABC into temporarily suspending comedian Jimmy Kimmel. But only the agency chair can bring it to the full commission for a vote, and Carr has so far failed to do so while opposing a repeal. Now, the former officials are asking the court to grant a writ of mandamus, which would compel the FCC to take action. The goal is to force a response from the agency, putting each of the three commissioners on the record about the policy, and opening a potential legal pathway to remove a tool the group believes has been weaponized.

“The News Distortion Policy is a loaded gun that Chairman Carr is using to threaten broadcasters,” Mark Fowler, a Republican who led the agency in the ’80s, said in a statement. “Until it is repealed, we will not have a free press.” Tom Wheeler, a former Democratic chair from 2013 to 2017, had a similar warning. “As long as the News Distortion Policy remains, the FCC Chair could continue to misuse it to police perceived media bias, discourage broadcasters from covering controversial stories, and punish outlets that air content the Trump administration dislikes.” The petitioners also include the Radio Television Digital News Association, former Republican FCC chairs Dennis Patrick and Alfred Sikes, Republican commissioners Andrew Barrett and Rachelle Chong, former Democratic commissioner Ervin Duggan, and four additional former senior leaders at the agency.

The News Distortion Policy is a previously little-used tool at the FCC that dates back to 1949 and empowers the agency to take enforcement actions against broadcasters that deliberately distort a fact-based report about a major news event. Since the FCC only regulates broadcast TV and radio, it doesn’t apply to cable networks, online news outlets, or other forms of media, and according to the agency’s website, “Expressions of opinion or errors stemming from mistakes are not actionable.” In their petition, the former officials write that certain legal guardrails on its use had “ensured its sparing and judicious use for several decades.”

But under Carr, the policy has seen a revival. The chair has threatened repeatedly to use it against broadcasters that he perceives as favoring political opponents or displaying a bias against President Donald Trump — including CBS, which Trump sued over its edit of a 60 Minutes interview with then-presidential candidate Kamala Harris, and ABC, which broadcast Kimmel making a joke related to conservative activist Charlie Kirk’s killing. Most recently, he appeared to threaten the broadcast licenses of stations that aired critical coverage of Trump’s war in Iran, though he later denied this was intentional. Carr’s invocation of the policy has drawn criticism even from Republicans like Sen. Ted Cruz (R-TX), who compared Carr to a “mafioso” after his Kimmel threat.

To rule in the petitioners’ favor, the DC circuit court would need to find that the FCC failed its duty to act, imposed an egregious delay, and no adequate alternative will remedy the matter. The petition argues that timing is of the essence — with midterm elections approaching, “this abuse of regulatory power to shape voter perception and control information the electorate has access to is a particularly urgent matter.”

If the court does order the FCC to take a vote, the petition seems likely to fail. Democratic Commissioner Anna Gomez has criticized the News Distortion Policy as “vague and ineffective,” but Carr has shot down the idea of repealing it. Republican Commissioner Olivia Trusty — the third and final member of the partially staffed FCC — may be reluctant to break from Carr on such a high-profile matter, and has said the policy “reflects a simple principle: a station cannot truly serve its community if it knowingly distorts the news about important events.”

Attorney Andrew Jay Schwartzman, who is bringing the petition alongside former Biden FCC nominee Gigi Sohn, and advocacy groups Protect Democracy and TechFreedom, acknowledges that the full commission very well may refuse to repeal the policy. But taking that step would at least open up a legal avenue that has so far been blocked. “That would be OK with us, because we can then appeal that denial,” Schwartzman said in a statement. “The problem here is that Brendan Carr is sitting on the petition.”

The petitioners believe that a new review of the policy should overturn it. New Supreme Court opinions on the First Amendment have “called into question whether the Commission’s application of the policy is even constitutional,” the filing says. That includes SCOTUS’ decision in the NetChoice cases, which dealt with a pair of state laws that sought to limit social media content moderation, and where “a plurality of the Supreme Court opined there is no legitimate government interest — and therefore no permissible application under the First Amendment — in ‘correct[ing] the mix of speech’ in order to ‘better balance the speech market.’” according to the former FCC officials’ filing. “Yet this is precisely the interest that the Chairman, and the Commission he effectively controls, seek to advance with the news distortion policy.”

“When unlikely allies share an opinion, that opinion eclipses partisanship and ideology,” Chong, one of the former Republican commissioner petitioners, said in a statement. “You could not find a group of petitioners with more divergent political beliefs than this one, and yet, we all agree on one thing: The news distortion policy should be repealed.”