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Brendan Carr’s FCC Rewrites Media Ownership Law Only Congress Can Actually Change

Brendan Carr’s FCC Rewrites Media Ownership Law Only Congress Can Actually Change

Legal Issues

from the what-third-branch? dept

Fri, Aug 7th 2026 09:23am -

Mike Masnick

There are many ways to describe the Trump Era, but the executive branch’s conviction that it can simply ignore the legislative branch’s entire existence has become something close to a governing principle. From impounding funds designated by Congress to launching a war without Congress’s authority, Trump has basically decided that the legislative branch is a vestigial organ of the federal government.

This latest one may seem smaller than those stories, but it’s another demonstration of how little the executive branch thinks the laws Congress wrote actually matter. Specifically in this case, the FCC has voted to scrap the congressionally-mandated limits on broadcast TV ownership. This, despite a long list of people who’d normally be on Carr’s side — Republican members of Congress, the former FCC commissioner who helped negotiate the cap in the first place, the House Majority Leader who cut the final deal — all saying the FCC can’t do this. Even Ted Cruz says he’s skeptical.

But Carr has done it anyway.

And while I’m sure the usual coterie of MAGA Trump defenders will insist this is all fine, it’s obviously an end-run around Congress’s authority. Congress set that number itself, writing directly into statute that no single company may own stations reaching more than 39% of American households. It was in a 2004 appropriations bill that raised this limit from the previous 35% to 39%.

That’s Congress clearly putting into law that the FCC must have a cap of 39% reach for TV ownership.

But Brendan Carr says he can change this because it’s "outdated." Here’s how Carr previewed the vote last month in an oped for Breitbart:

On August 6, the FCC will vote on eliminating the outdated national cap in favor of a new case-by-case approach. Previously, the cap operated as a blanket prohibition on any and all deals that would combine stations in excess of the 39 percent limit—regardless of whether it was a good deal or a bad one for the country. Our new proposal would allow the FCC to approve deals that exceed the 39 percent cap, but only if doing so would promote the public interest.

Even if you agree with Carr that the 39% ownership cap is "outdated" and that it’s not in the public interest, that’s not Carr’s decision to make .

He is saying, out loud, that the FCC can ignore an act of Congress whenever the FCC decides that act has gotten stale — with the FCC, conveniently, being the sole judge of staleness.

Of course, all this comes right after Nexstar and Tegna — two giant, reliably GOP-friendly broadcast companies — merged into something massively exceeding that 39% cap (thanks to Carr’s support). You know full well (as does Carr) that if the two companies merging here were the kind he likes to call "leftist" or "woke," there is no chance he’d wave them past the 39% cap. He’d suddenly put on his attempt at a solemn face and talk about how unfair it would be to the public interest of America to let one company control that much broadcast spectrum.

The lone remaining Democrat on the Commission, Anna Gomez (who Trump likely hasn’t fired yet only because the FCC needs a quorum to do anything at all), has pointed out that this is all quite obviously unlawful.

Today’s decision to eliminate the 39 percent national audience reach cap is unlawful on its face and a profound departure from both statutory boundaries and longstanding broadcast policy. Congress set this cap in federal law, and only Congress can change it. I cannot support an action that so plainly exceeds the Commission’s authority while simultaneously overlooking the real-world consequences for the public we serve.

She goes into further detail about how the wording in the Telecommunications Act is pretty clear that the FCC can’t just ignore this cap or change it without congressional approval. And cites a bunch of Republicans including former FCC officials, along with both current and former elected officials in Congress:

Further, knowledgeable republicans with direct experience shaping, and later interpreting, the national audience reach cap agree that today’s action is plainly foreclosed by law. Former FCC Commissioner Mike O’Rielly, who was personally involved in the negotiations that produced the 39 percent cap, has stated unequivocally that the Commission ‘does not have the authority to modify the national audience reach cap,’ explaining that Congress expressly codified the cap...