John Blevins (University of Kentucky – J. David Rosenberg College of Law) has posted Retaliation by Raised Eyebrow on SSRN. Here is the abstract:
The FCC’s recent investigations of news media companies represent a novel and problematic evolution of its informal regulatory practices, which scholars have called “regulation by raised eyebrow.” The FCC has traditionally exercised these powers as part of its general obligation to regulate broadcasters in the “public interest.” By applying informal pressure instead of direct regulation or enforcement, the FCC can signal its policy preferences to private actors at lower cost and with less legal risk. While often flawed and controversial, the FCC’s raised eyebrow practices have traditionally been used to advance broader substantive policy agendas. The FCC’s more recent actions, however, are something different. Rather than advancing a coherent regulatory purpose, they instead seem designed to retaliate against unfavorable media coverage and to signal political loyalty. Evidence of this intent can be seen by the FCC’s unusual revival of dormant doctrines and its substantial departures from recent norms in its enforcement actions. In short, raised eyebrow regulation has been transformed into an instrument of political retaliation. This Article defends that claim and explores the significant legal and policy concerns this development raises, including its implications for First Amendment values and independent agencies.