Column: FCC case against CBS for ‘news distortion' may go far beyond precedent, scholars say

The opinions expressed here are those of the author, a columnist for Reuters.

By Jenna Greene

Feb 12 (Reuters) - As the U.S. Federal Communications Commission probes CBS for potential violations of the agency’s rarely-invoked policy on “news distortion,” communications lawyers and FCC scholars say that the move under newly installed commission chair Brendan Carr could mark a sharp departure from agency precedent.

In an unusual step, the FCC re-opened a complaint alleging CBS, in editing a “60 Minutes” interview with then-Vice President Kamala Harris, wrongly altered one of her answers. Also atypical: The commission last week invited members of the public to submit comments on the proceedings.

The complaint about the broadcast by the conservative Center for American Rights had been dismissed in January by outgoing chair Jessica Rosenworcel, an appointee of then-President Joe Biden, who said the FCC should not act as "speech police," only to be revived shortly after Carr took the helm.

An FCC spokesperson did not respond to a request for comment and CBS declined comment.

The FCC’s policy dates back to the 1960s, and according to the agency's website, broadcast news distortion must involve misrepresentation of "a significant event and not merely a minor or incidental aspect of the news report."

In prior cases, the FCC has required “extrinsic evidence” of deliberate and knowing distortion other than the broadcast itself, University of Miami School of Law professor Lili Levi, who has studied the FCC’s news distortion policy, told me. That might include proof of a bribe or orders from management to fabricate news.

In the handful of instances when the FCC has taken action against broadcasters for distorting the news, the misconduct was dramatic, including a disc jockey's staged kidnapping, illegal campaign contributions and a rigged truck explosion, according to research by Santa Clara University communications professor Chad Raphael.

The FCC intentionally crafted the policies to make it “extremely unlikely to find a broadcaster in violation of them, out of respect for broadcasters' free speech rights,” Raphael said via email.

How unlikely? He found that of 120 news distortion decisions between 1969 and 1999, the FCC issued rulings against broadcasters in just eight cases. Three stations lost their licenses as a result, though in each case, news distortion was among a host of violations cited.

Some experts are skeptical that the allegations against CBS could result in such sanctions. “There is no case in FCC history that has suggested editing is news distortion,” said Robert Corn-Revere, who after 20 years as a partner at Davis Wright Tremaine joined the Foundation for Equal Rights and Expression, or FIRE, as chief counsel in 2023.

The case against CBS comes as parent company Paramount is seeking FCC approval to transfer the licenses of its 28 local CBS stations to Skydance Media as part of its pending $8.4 billion merger.

The FCC investigation centers on edits by CBS that split Harris’s response to a question on Israeli Prime Minister Benjamin Netanyahu into two parts. The first sentence of her answer aired Oct. 5, 2024, on “Face the Nation.” The following day, “60 Minutes” used the same question but substituted the second part of her response, according to the transcript and raw footage of the complete interview released by CBS last week.

After viewing the full video, Daniel Suhr, president of the Center for American Rights, in an email said it "only exacerbates our concerns that ("60 Minutes") engaged in slice-and-dice editing that slanted the news in a way helpful to one candidate."

CBS in a statement on its website said that each excerpt reflected the substance of the vice president's answer. The transcripts "show – consistent with 60 Minutes' repeated assurances to the public – that the 60 Minutes broadcast was not doctored or deceitful."

CBS isn't the only broadcaster on the hot seat.

Within days of Carr’s elevation to FCC chair after President Donald Trump’s Jan. 20 inauguration, the commission also re-opened the Center for American Rights' news distortion complaint against ABC for alleged bias in fact-checking the presidential debate. It also resurrected the group's petition against NBC for allegedly violating the equal time rule when Harris appeared on Saturday Night Live.

ABC and NBC did not respond to requests for comment.

The move against CBS is particularly noteworthy given that the network is also facing a lawsuit by Trump that centers on the same interview.

In an amended complaint filed on Friday in U.S. District Court for the Northern District of Texas, Trump alleged CBS “deceptively manipulated the Interview in a manner calculated to make Harris appear coherent and decisive,” in violation of Lanham Act and Texas law against false advertising and unfair competition. He also bumped his claim for damages from $10 billion to $20 billion.

A Harris spokesperson did not respond to a request for comment.

The White House press office when asked for comment referred me to the president's posts on Truth Social about the case.

Trump last week wrote that CBS “defrauded the public,” and that the network “should lose its license."

The biggest ramification of the FCC's news distortion probe may not be that the agency will ultimately refuse to renew or transfer the CBS licenses, said Andrew Jay Schwartzman, a senior counselor at the Benton Institute for Broadband & Society, which advocates for the public interest in media and telecommunications.

“Editing — which every broadcaster does — doesn’t come close to news distortion,” he said. But the FCC's act in re-opening the investigation could “cow or intimidate” broadcasters contemplating coverage disfavored by the Trump administration.

The result, he said, is “a chilling effect" on free speech.