ABC’s Lawsuit Against FCC Explained: What To Know And What’s Next

ABC took the extraordinary step of suing the FCC on Tuesday, challenging its investigations and regulatory crackdowns as not merely bureaucratic overreach but part of a Trump administration retaliatory campaign in violation of the First Amendment.

The case has the potential to be a major legal showdown over the FCC‘s authority and free speech — if it gets to that point.

The initial phase of the litigation, in which a judge will decide whether to grant ABC a temporary restraining order to halt an FCC early review of its broadcast station licenses, may be heavy in process. The agency has signaled that it will challenge the lawsuit as premature — in other words, the network has to let the regulatory process play out. The judge in the case, Loren L. AliKhan, plans a hearing in October and set a briefing schedule for next month.

The mere fact that ABC filed the case at all drew praise from First Amendment groups and figures like Anna Gomez, the sole Democrat on the commission, who have been sounding the alarm that corporations were capitulating to the Trump administration by the mere threat of regulatory action.

The network decided to file the case after the FCC ordered ABC’s eight owned stations to submit to the early license renewals in late May, years ahead of schedule, a highly unusual action that the agency said was triggered by an ongoing investigation of the network’s diversity, equity and inclusion practices. Citing Donald Trump‘s attacks on the network and comments from FCC chairman Brendan Carr, ABC said that the DEI probe is a mere “pretext” to punish the Walt Disney Co. over its content. Its lawsuit lays out a narrative of the president’s attacks, Carr’s comments, and agency activity.

The FCC is defending its actions as part of its regulatory oversight, with Carr often noting that broadcasters including ABC, unlike other forms of media, still have to fulfill a public interest standard. Daniel Suhr, lawyer for the Center for American Rights, a frequent ally to Carr, called the lawsuit “a desperate attempt to short circuit the FCC’s investigation into its illegal and discriminatory employment practices.”

What is the case about?

ABC has one cause of action in its lawsuit: Violation of the First Amendment and retaliation for protected expression. At the center are the early license renewal proceedings, but the network argues that is a punishment for editorial decisions and programming that the Trump administration doesn’t like, whether that be continued employment of Jimmy Kimmel, or guests on The View, or, more recently, the decision last month to stream and not broadcast the president’s primetime speech.

What’s at stake for ABC? The network said that each day, it faces “a choice between exercising independent editorial judgment or risking the loss of valuable broadcast licenses — precisely the type of choice that chills protected First Amendment activity and cannot be remedied after the fact.”

As an example, the network’s legal team wrote that The View has been bypassing political candidates as guests, or even in clips, given “the cumulative pressure from the FCC’s multiple actions.” The show is the focus of a separate investigation as to whether it needs to comply with the agency’s equal time rule, which requires broadcasters featuring political candidates to offer comparable airtime to rivals, if requested. ABC points to a 2002 FCC letter concluding that The View qualifies for an exemption for bona fide news programming.

ABC’s challenge

In the lawsuit, the network tries to lay out a link between Trump’s attacks and FCC action.

In arguing that it is retaliation in violation of the First Amendment, the network’s legal team wrote that when “determining whether a government official issued a threat of adverse action in order to suppress or punish speech, courts consider (among other things) ‘the power that a government official wields,’ the nature of the statements made by officials, and the reaction by the party receiving the threatening communication.”

In its complaint, the network’s legal team runs through voluminous Trump social media posts and Oval Office outbursts, Carr’s own comments and FCC activity to suggest that there’s enough in the public record to establish a “causal link.” The discovery process may very run up against White House invocation of executive privilege, but the network suggests that there is already proof out in the open.

The ABC legal team wrote, “The President has consistently called for FCC action — including license revocation — in direct response to Plaintiffs’ speech that he views as critical of his administration. Then, just one day after the President publicly called for Kimmel’s firing, the Commission made the unprecedented demand that all eight Stations file for early license renewals.”

Michael Socolow, media historian and professor at the University of Maine, wrote on Substack that even though he believes the FCC is exploiting its licensing power, but warned that ABC will run up against court precedent that recognized the limits on free speech in broadcasting, going back to a 1943 Supreme Court decision in NBC vs. U.S.

He wrote, “I don’t think ABC can win on the idea that the FCC is being retaliatory or chilling speech. But I do think they have a (slim) chance if they can prove the punitive regulatory action (the early license reviews) was capricious, or based on imprecise legal reasoning, or too-vague accusations.”

In its lawsuit, ABC’s legal team does go into how unusual an early license renewal order is, contending that the FCC had never demanded “simultaneous early renewal applications from a group of stations commonly owned with a single broadcast network — much less stations with the record of public service and award-winning journalism like these Stations.”

Roy Gutterman, director of the Tully Center for Free Speech at Syracuse University, wrote via email that “even if the FCC argues that the lawsuit is premature or not ripe, I think ABC still has a viable argument because the harm is occurring through the acceleration of the renewal process and the unusual nature of the renewal process that certainly has the appearance of punishing content.”

He added, “As an equity action, ABC only has to prove that there is immediate, ongoing harm to First Amendment-related activity. The license renewal process is traditionally separated from editorial content. But this action is aimed at the content, which triggers the First Amendment complaint.”

The FCC’s challenge

The agency and Carr have insisted that the early renewal proceeding is motivated by an ongoing investigation of whether the network’s diversity, equity and inclusion practices were discriminatory. They also argue that it is in the realm of the FCC’s authority to ensure that stations operate in the public interest.

In a video he posted to social media, Carr said, “They’re been producing documents to the FCC. We’ve been developing a record. We’ve made no final decision but now Disney has rushed to court to try to stop the FCC from moving forward. And apparently, I guess, Disney must be very concerned and worried about that production, but obviously their lawsuit is meritless.”

The network’s lawsuit references a landmark Supreme Court decision in its first paragraph: National Rifle Association v. Vullo. In a unanimous decision, the justices ruled in 2024 that government officials cannot use the “power of the State to punish or suppress disfavored expression.” In that case, it was a New York official who put regulatory pressure on companies to sever ties with the NRA in an effort to stifle their pro-gun rights advocacy. The case had to do with “jawboning,” or using government speech or threat as a way to pressure for private action.

ABC’s lawsuit cites comments made by Sen. Ted Cruz (R-TX) after last fall’s suspension of Kimmel. After the late-night host’s joke in the aftermath of the assassination of Charlie Kirk generated a furor on the right, Carr told podcaster Benny Johnson that “we can do this the easier way or the hard way,” as he called for action on Kimmel or “there is going to be additional work for the FCC ahead.” Kimmel was pulled off the air and later reinstated, but Cruz said that the FCC chairman’s comments were “right out of Goodfellas. That’s right out of a mafioso coming into a bar going, ‘Nice bar you have here. It’d be a shame if something happened to it.’”

Carr later denied that he was threatening to pull licenses if ABC did not fire Kimmel. He said that he was talking about ABC and its affiliates working the situation out but that the FCC would still review any complaints filed. “What I’ve been very clear in the context of the Kimmel episode, is the FCC, and myself in particular, have expressed no view on the ultimate merits,” he said.

One of ABC’s arguments is that the FCC’s action — early license renewals — is an overkill response to the DEI investigation, which has yet to conclude. Robert Corn-Revere, a longtime First Amendment litigator and chief counsel at the Foundation for Individual Rights and Expression, wrote via email that the FCC claim that the early renewal is due to the DEI investigation is “plainly pretextual.”

He wrote, “Even if this were a legitimate review of station performance under the FCC’s equal employment rules, it could not justify an early license renewal proceeding, much less a simultaneous review of all the licenses owned by the network. But this is not a legitimate use of the FCC’s EEO rules.”

FIRE argued in a filing this summer that the FCC’s use of Equal Employment Opportunity rules exceeded its jurisdiction. The organization wrote that “broadcasters’ decisions about what stories to tell, what their editorial positions will be, and who they should hire to convey those messages are all protected by the First Amendment.”

What’s next?

A judge has set a hearing for the week of October 5, with a briefing schedule in September.

The judge also said that if the FCC took action on the licenses — namely designating the renewals for an administrative hearing — she would order the parties in court the next day. The FCC can still continue its investigations and proceedings, but it may have a disincentive to take action at least until the October hearing.

In the meantime, the FCC plans to file a motion to dismiss, and the agency’s legal team has indicated that it plans to do so on jurisdictional grounds.

That will be consequential to the lawsuit, and it may be a significant hurdle for ABC.

In a legal filing, the FCC contends that ABC has to wait until their review process plays out and the network then have to seek recourse in the D.C. Circuit Court of Appeals, not the district court. The agency pointed to a 1994 Supreme Court decision, Thunder Basin Coal v. Reich, that district courts were restricted in making judgments to pre-enforcement agency review.

The agency argues that ABC is trying to “circumvent an administrative proceeding followed by judicial review in a court of appeals.”

ABC contends that the Thunder Basin decision and another Supreme Court opinion, Axon Enterprise v. FTC, allow for district courts to hear First Amendment claims against agencies. Their legal team wrote in a filing to the judge, “Courts in this District have already recognized that such claims belong in federal court, not before the very agency accused of engaging in First Amendment retaliation.”

Those jurisdictional questions look to set up a pretty intricate set of arguments before the judge gets to the merits of the case.

Corn-Revere said, “Ordinarily, a broadcaster would have to await a final decision before proceeding in court. But here, where the FCC has so clearly abused its authority and is using its processes to inflict punishment, I expect the district court will accept a challenge to the FCC’s actions.”