The FCC, CBS and Colbert: A few things to ponder after the latest corporate capitulation

Sure, Paramount got approval for its merger with Skydance last year. But is the new company even getting much these days for all its efforts to appease the Trump administration?

UPDATE: Stephen Colbert responded on The Late Show Tuesday night to a statement issued by CBS earlier in the day disputing his contention that the network barred him from airing an interview with James Talarico.

“They know damn well that every word of my script last night was approved by CBS’ lawyers…who, for the record, approve every script that goes on the air,” Colbert said, insisting that he didn’t want an adversarial relationship with the network, while noting that CBS lawyers gave him final notes on what to say minutes before he began the segment talking about the interview moving to YouTube on Monday night. He also said CBS crafted and released its statement without talking to him.

“I’m just so surprised that this global corporation would not stand up to these bullies,” he added, echoing a point I make further down in this analysis. It’s looking like Colbert is going to have a tougher and tougher time trying to stay cordial with his employers as his May 21 end date looms. Below, is an analysis I published hours before Colbert’s Tuesday show aired.

The long arm of Donald Trump’s Federal Communications Commission has reached out to mess with late night TV content once again.

And, just like the Jimmy Kimmel fiasco from last year, the FCC didn’t have to actually do anything – just issue threats bold enough to scare those who control broadcast networks to obey in advance.

This time, the target was Stephen Colbert, whose Late Show has already been canceled by the network and will go off the air for good May 21. (someone asked me what might fill that timeslot; I wouldn’t be surprised if it was reruns of CBS police procedurals or another slapped together syndicated show from Byron Allen. The network seems less interested in filling the timeslot with anything interesting and more focused on saving money while eliminating a voice critical of the Trump administration. And yes, I know CBS has said the cancelation was entirely an economic decision. RIIIIGHT.)

Colbert said on his show last night CBS wouldn’t allow him to interview James Talarico, a state representative from Texas who is running for the Democratic nomination to vie for the U.S. Senate seat currently held by Republican John Cornyn. FCC Chair Brendan Carr had previously threatened to try eliminating the exemption to equal time rules that allow talk shows like The View and The Late Show to feature political candidates in the same way news broadcasts do – without the need to give equal time to their opponents.

Reuters reports that the FCC is already investigating The View for violating the equal time rule; the show has featured appearances by both Talarico and his opponent in the Texas primary, U.S. Rep. Jasmine Crockett.

Even though the FCC also oversees broadcast radio stations, Carr has said he sees no reason to enforce similar requirements in the radio space – which has been dominated by right wing-centered programs for decades. This raises concerns that Carr’s strategy seems more about curbing the activities of TV programs critical of Trump than enforcing any kind of fairness.

Colbert found a cheeky way around what he said were CBS’ demands, telling his audience the Talarico interview would appear on The Late Show’s YouTube channel, a platform the FCC does not oversee. It remains to be seen whether CBS or the FCC will react to the fact that Colbert did mention Talarico’s name on his broadcast – though he even used a stock photo to stand in for a picture of the candidate, since showing his picture was also forbidden by the network, according to Colbert.

Since Colbert’s show aired, CBS has issued a statement saying they never prohibited The Late Show from airing an interview with Talarico. According to The Hollywood Reporter, CBS’ statement says: “The Late Show was not prohibited by CBS from broadcasting the interview with Rep. James Talarico. The show was provided legal guidance that the broadcast could trigger the FCC equal-time rule for two other candidates, including Rep. Jasmine Crockett, and presented options for how the equal time for other candidates could be fulfilled. The Late Show decided to present the interview through its YouTube channel with on-air promotion on the broadcast rather than potentially providing the equal-time options.”

Given the willingness of CBS owners Paramount to tout their friendship with Trump – and the controversy over efforts by new CBS News editor in chief Bari Weiss to change their journalism in ways critics like me think are more favorable to Trump and the MAGA movement – it’s easy to see this latest move by the network as another capitulation by a media owner desperate to curry favor with the administration.

(I’m wondering, for example, why CBS didn’t wait to see what the FCC might do, before requiring The Late Show to obey an equal time rule that federal officials had never enforced against the program before.)

Even now, Warner Bros Discovery is reopening talks with Paramount to consider its revised bid to purchase that company, after WBD accepted a bid from rival Netflix. From the beginning of its effort to buy WBD, Paramount executives have touted their cozy relationship with the Trump administration as a benefit – suggesting they might get easier regulatory approval. This, of course, provides a serious incentive for paramount and CBS to be seen as micromanaging Colbert while declining to fight any arbitrary demands by the FCC.

CBS wasn’t always such a lapdog for federal regulators. Back in 2004, when the FCC fined CBS and its affiliates for a brief showing of nudity during singer Janet Jackson’s “wardrobe malfunction” in the Super Bowl halftime show of that year, the network fought the fine all the way to the Supreme Court – and won, eight years later.

Now, the owners of CBS – a different lot, who took over control of Paramount last year – seem more interested in ceding some of their editorial independence in exchange for a hope of favorable treatment in some other aspect of their business.

Here’s a few things to keep in mind, as the saga of the FCC, free expression, CBS/Paramount and capitulating to authoritarianism continues to play out.

The FCC oversees the licenses of broadcast outlets, like radio and TV stations, not cable TV channels or internet platforms. This is why Carr can threaten fines or license suspensions for broadcast outlets like CBS or ABC affiliates, but can’t go after The Daily Show on Comedy Central or The Late Show’s YouTube channel.

The idea is that the broadcast airwaves are owned by the public, so the FCC can regulate entities licensed to use those public airwaves, with the idea of representing the public’s interest. Unfortunately, it seems Carr too often substitutes the Trump administration’s interests for whatever the public might need.

(I’m still wondering why all the public infrastructure which went into building the modern internet and cable TV systems doesn’t lead to some kind of public ownership and oversight in those industries.)

The Fairness Doctrine once championed by the FCC is different than the Equal Time Rule. And it only ever applied to broadcast stations. Too often, in these debates about the political content of media outlets, some people refer to the Fairness Doctrine – an FCC policy from way back, which once mandated broadcast networks devote time to contrasting views on issues of public importance.

Enforcement of The Doctrine was rolled back by an FCC led by an appointee from conservative Republican President Ronald Reagan. In 1987, the FCC repealed it entirely. And even when it was in force, the policy didn’t apply to cable TV or what few online outlets existed, so it could never have reined in the kind of one-sided commentary we see on Fox News Channel or various internet platforms today.

The FCC’s equal time rule is different. It holds that, if broadcasters with FCC-granted licenses feature one legally-qualified candidate for office, they must provide equal opportunities for all other such candidates for that office, without censorship. But that rule has been waived for talk shows over a long period, including them in with newscasts as programs which don’t need to follow the rule. But Carr is aiming to change that.

Of course, the FCC can also decide how to enforce any rule it has jurisdiction over, as we have seen with the past equal time rule exceptions for talk shows. And any action it takes can ultimately be challenged in court. Which means…

A media company focused on maintaining its freedoms and resisting government control could defend itself by challenging any FCC enforcement in court. The FCC originally adopted rules like the Fairness Doctrine and Equal Time back when mass media was dominated by a small group of broadcasters.

Given the expansive number of voices in the modern media landscape, it seems difficult to argue that the FCC still needs to oversee how broadcasters handle content like this. Especially since Trump has expressed support for a deal allowing broadcast station group Nexstar to merge with smaller competitor Tegna, creating a single company reaching 80 percent of TV households.

If the FCC believes there is enough media competition to justify lifting its cap on the amount of TV households a single station owner can reach, then how can it justify enforcing other rules originally created to address a lack of competition?

It remains unclear whether recent kowtowing by Paramount and CBS News will actually pay off. Yes, Paramount got its merger with Skydance after canceling Colbert. But what has the Trump administration done for them lately?

Trump has famously said he’s “not involved in Paramount’s hostile bid for Warner Bros Discovery (of course, he said that just a few days after meeting with Paramount CEO David Ellison, so who knows if he’s telling the truth.)

But if Trump isn’t interceding to help Paramount, then why is the company canceling the top-rated broadcast network late night show, driving top journalists like Anderson Cooper away from 60 Minutes while holding onto an influencer who has surfaced hundreds of times in the Epstein files, and now taking action which looks like obeying in advance to affect who can appear on The Late Show.

If Paramount doesn’t wind up acquiring WBD, Ellison may not have much to show for all the damage currying favor with Trump has wrought. And that may be the saddest outcome from all of this.