Federal Communications Commission Chairman Brendan Carr’s push to eliminate a congressionally imposed limit on television station ownership is putting two longtime conservative priorities into direct conflict: deregulating the media industry and restraining the power of federal agencies.
The FCC voted 2-1 on Aug. 6 to eliminate the rule barring a single company from owning television stations reaching more than 39% of U.S. households, replacing the hard ceiling with a case-by-case approach to proposed transactions.
Carr argues the decades-old restriction is obsolete in a media landscape transformed by cable, streaming, and the internet, and that allowing broadcasters to grow is necessary to keep local television financially viable.
“We should stop hamstringing this one segment of the broader market with outdated restrictions,” Carr said, warning that he does not want local broadcast television “to go the way of local newspapers.”
But the fight is increasingly about something larger than whether 39% remains the right number. Unlike many regulations an administration can rewrite, the 39% limit was explicitly established by Congress more than two decades ago. That has prompted an unusual question on the Right: Can an agency dispense with a restriction Congress itself enacted because the agency now believes the policy no longer makes sense?
For conservatives who have spent years pushing courts to rein in the administrative state, critics say the answer could have consequences far beyond broadcast television.
“The question isn’t should we. The question is can we?” said Lawrence Spiwak, president of the Phoenix Center and an adjunct law professor who has written extensively on telecommunications and administrative law.
Spiwak said he supports reconsidering outdated media ownership rules as a policy matter but does not believe the FCC has the statutory authority to eliminate the cap itself.
“If the commission can say, ‘I can just waive whatever statute I want,’ it sets up a horrible precedent,” Spiwak said, speaking to the Washington Examiner.
The concern is also coming from one of the most powerful Republicans with oversight of the FCC.
Senate Commerce Committee Chairman Ted Cruz (R-TX) has repeatedly questioned whether Carr’s FCC is staying within its legal authority, including in its handling of Nexstar’s acquisition of Tegna.
In a March interview with the Washington Examiner, Cruz objected to the FCC allowing its Media Bureau to approve the transaction rather than putting the matter before the full commission.
“I had been quite vocal that this should not have been decided at the bureau level, that this required a full commission,” Cruz said. “I think it was not authorized to be done at the bureau level.”
Cruz pointedly cast the issue as one of principle rather than party.
“I’ve been outspoken about that when the Biden FCC tried to do that, and I think it is equally wrong [when] this FCC does,” he said.
Asked whether he worried about the precedent created when major decisions are made without direct accountability from presidentially appointed and Senate-confirmed commissioners, Cruz said, “Of course.”
“If it can be done without accountability from the presidentially appointed and Senate confirmed commissioners, that’s a real problem,” Cruz said.
Cruz has separately expressed skepticism that the FCC has the legal authority to change the 39% ownership limit without congressional action, putting him at odds with Carr over the commission’s power to act unilaterally, even as both Republicans have questioned whether existing broadcast ownership restrictions are outdated.
A Republican-made compromise
The origins of the 39% limit make that Republican split particularly striking. The national ownership cap had stood at 35% when the Republican-led FCC voted in 2003 to raise it to 45%, part of a broader effort under then-Chairman Michael Powell to loosen media ownership restrictions.
Congress pushed back, including Republicans who controlled both chambers. Republican Sen. Ted Stevens of Alaska backed an effort to restore the 35% threshold, while the George W. Bush administration threatened to veto legislation overturning the FCC’s deregulatory changes.
Republican congressional leaders and the Bush White House ultimately settled on 39% as a compromise. Congress included the provision in the Consolidated Appropriations Act of 2004, which Bush signed into law in January of that year.
The history is significant to the current dispute because Congress was not merely silent about how many households a television station owner could reach. Lawmakers intervened after the FCC attempted to establish a different threshold and imposed their own.
Spiwak said the language Congress adopted leaves little room for the agency to disregard it.
“It is a hard cap, and Congress put it in there as a hard cap,” he said. “The fact that you just go, ‘Well, I’m just waiving a hard cap that’s in law,’ I don’t see how you have the authority to do that.”
The fight also puts Carr in an awkward position with conservatives who have spent years arguing that federal agencies should not be able to stretch the law beyond what Congress intended. That effort scored a major victory in 2024, when the Supreme Court made it harder for agencies to claim broad powers when federal law is unclear.
Spiwak said Carr is now relying on the kind of expansive agency authority conservatives have long warned against.
“You’ve got to keep these agencies within their statutory lanes,” he said. “Congress delegates to an agency specific statutory authority. You know, do you live within that or not?”
The fight has taken on greater significance around Nexstar’s $3.54 billion acquisition of Tegna, which formally closed in March after receiving FCC and Justice Department approval. But the deal remains the subject of an antitrust challenge from a bipartisan coalition of state attorneys general, and a federal judge has ordered Nexstar and Tegna to remain operationally separate while the litigation proceeds. If ultimately allowed to fully integrate, the combined company would own stations reaching roughly 80% of U.S. television households.
Carr has argued that loosening ownership restrictions would give local station owners more resources to invest in programming while strengthening their bargaining position against national networks. But critics on the Right are increasingly focused on what happens after Carr and President Donald Trump leave office.
If courts accept a broad interpretation of the FCC’s ability to get around a restriction imposed by Congress, conservatives worry a future Democratic administration could attempt to invoke similar reasoning when pursuing policies Republicans oppose. For Spiwak, that is precisely why conservatives should be wary even if they support Carr’s desired policy outcome.
“For somebody who cares about constraining the administrative state, you can’t selectively choose which rule you like and which one you don’t,” he said.
“Nobody stays in power forever,” Spiwak added, warning that an aggressive assertion of agency authority can take on a life beyond the administration that first embraced it. “You do have a very troubling precedential value.”
Clay Calvert, a fellow at the conservative-leaning American Enterprise Institute, similarly said the 39% figure itself may no longer make sense given dramatic changes in where people consume news and where advertising dollars flow.
From a traditional conservative perspective, Calvert said, eliminating an outdated regulation is attractive. But the method matters.
Calvert pointed to the Supreme Court’s Loper Bright Enterprises v. Raimondo decision, which made it harder for federal agencies to broadly interpret laws passed by Congress. Conservatives celebrated the ruling as an important check on the administrative state. But Calvert said Carr’s approach could cut the other way by giving the FCC more discretion, not less. Instead of a clear 39% limit, the commission would decide on a case-by-case basis whether a media deal serves the “public interest,” giving whoever controls the FCC more say over which mergers can move forward. And that power would not necessarily stay in Republican hands.
“The decisions about ownership that we make during the Trump administration era will outlast” both Trump and Carr, Calvert said.
“What goes around comes around,” Calvert said, warning that the approach could “come around and bite Republicans later on down the road.”
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The dispute now leaves the FCC’s authority to eliminate the congressionally established limit poised for legal scrutiny, even as Republicans who favor deregulation remain divided over how far the agency can go without lawmakers.
The Washington Examiner reached out to the FCC for comment on the legal concerns surrounding the commission’s decision and its authority to eliminate the 39% cap but did not receive a response.