The FCC asked a federal court Thursday to dismiss the First Amendment lawsuit ABC filed against the agency, arguing that the Disney-owned broadcaster failed to establish that the FCC’s early license renewal review for ABC‘s TV stations represents “retaliation” for disfavoured speech.
ABC sued the FCC last month, alleging the commission was waging an “extraordinary assault” on its free-speech rights by threatening to pull licenses for its eight owned-and-operated local TV stations. The FCC continues to insist the ABC early license renewal was initiated out of the agency’s investigation into “allegations of unlawful discrimination” in employment practices at Disney and ABC — and is unrelated to FCC Chairman Brendan Carr‘s comments about Jimmy Kimmel, “The View” or any other programming.
ABC’s lawsuit alleged, “The Commission’s true target is not the Stations’ employment practices or their carriage of a single presidential address; it is the content of Plaintiffs’ programming — and thus their speech. Because the Commission cannot regulate that content directly, it has used its review of the Stations’ licenses as an instrument to the same end.”
In its Sept. 3 filing, the FCC disputed that framing. The agency’s lawyers argued that “Because Plaintiffs do not establish the necessary ‘causal link between [their] protected speech and the early renewal proceedings,’ they have failed to show a likelihood of success on the merits of their First Amendment retaliation claim.”
The FCC’s call for early license renewal came one day after Donald Trump and Melania Trump publicly criticized a joke Jimmy Kimmel made on his show (Kimmel said Melania had “a glow like an expectant widow”) — and Trump demanded that ABC fire Kimmel. On April 28, the FCC’s Media Bureau issued an order requiring Disney “to file license renewals for all of their licensed TV stations within 30 days.” The station’s licenses were otherwise not due for renewal until between 2028 and 2031. When Carr was asked at an April 30 press conference at the FCC if Kimmel’s joke would play a part in the FCC’s review of the ABC licenses, he responded that Disney is “going to have to come in and demonstrate that they’ve been operating in the public interest.”
Meanwhile, the FCC earlier this year initiated a formal review of whether ABC daytime talk show “The View” qualifies for an exemption to the agency’s equal-time rules for political candidates. “Disney and ‘The View’ have not established that that program is, in fact, bona fide news,” Carr said on Fox News in February.
In July, Carr said the FCC will consider ABC‘s decision to not carry a live broadcast of President Trump’s speech about U.S. election security as part of its early review of its broadcast licenses. “I think that when you have the president of the United States standing inside the White House delivering an important speech, I think that’s something that broadcasters should be carrying,” Carr said.
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However, according to the FCC, none of those issues are related to the commission’s decision to trigger an early review of the ABC licenses.
In its filing, the FCC said that Carr announced the investigation into Disney and ABC’s DEI practices “long before making any of the statements about ‘The View,’ Jimmy Kimmel, or President Trump’s July 2026 public address on which Plaintiffs focus their narrative in this case.”
The FCC also said, “The mere fact that an agency official may ‘speak vigorously, sometimes colourfully’ in the public sphere to “spark debate’ does not imply prejudgment of a licensing proceeding. ‘Political discourse by prominent public figures,’ even when ‘couched in terms’ that members of the public find ‘scandaliz[ing],’ does not establish animus.”
The FCC asked the court to dismiss ABC’s complaint “for lack of subject-matter jurisdiction.”
ABC is “unlikely to prevail on the merits because this Court lacks jurisdiction over the subject matter of this case,” the FCC said in the filing, saying that Congress has limited judicial review of agency orders to the federal appeals courts. “Plaintiffs cannot bypass these jurisdictional limits by framing their claim as one for ‘retaliation’ in response to speech protected by the First Amendment. That theory requires them to show that ‘but for’ animus toward Plaintiffs’ speech, the Commission would not have initiated the early renewal proceeding. Abundant evidence belies that conclusion; it was Disney’s lack of cooperation with the antidiscrimination inquiry that triggered the need for that additional investigatory step.”
A copy of the FCC’s motion to dismiss the ABC suit is available at this link.
Judge Loren AliKhan of the U.S. District Court for the District of Columbia, a Biden appointee, is presiding over the case. She has set a hearing for the week of Oct. 5.
According to the FCC, in early 2025, following “a series of public reports and allegations of racially or otherwise discriminatory practices at Disney,” Carr directed the agency’s Enforcement Bureau to open an investigation into whether Disney was complying with the FCC’s antidiscrimination requirements
The FCC claimed that a year into the DEI investigation, Disney’s responses to commission information requests “were deficient and nonresponsive. So, on April 28, 2026, the Commission’s Media Bureau issued an order directing the stations to apply for renewal of their licenses early, as is allowed in service of investigations under a longstanding Commission rule.”
Disney has said that in the FCC’s DEI probe, it has produced over 11,000 pages of responsive documents “on a mutually agreed schedule” and that the commission’s Enforcement Bureau “has never suggested its existing tools are insufficient for whatever it is investigating.”
The FCC said it is now in the process of reviewing and analysing the “voluminous” public comments around the ABC license renewal. The agency has received 153,716 comments on the proceeding — fueled by Disney’s campaign across the eight local ABC stations urging viewers to share comments about the FCC’s review with the agency.
According to the FCC, Carr “has repeatedly emphasised that, although the allegations against Disney are serious, he and the agency remain ‘open-minded,’ have ‘not made a decision,’ and are ‘going to follow the facts and the law wherever they [lead].’”
The agency also argued that ABC’s legal challenge in the matter was premature because the FCC has not yet moved to revoke the spectrum licenses, and noted that the ABC stations would still be able to broadcast over the airwaves pending the outcome of any legal proceeding.
“Licensees with pending renewal applications are entitled to continue operating without interruption during the license period for the duration of the renewal proceeding — even were it to result in a hearing. In fact, even if the Commission were to deny the stations’ applications, their licenses would remain in effect for however long they might wish to seek judicial review,” the FCC said.
From Variety US