Regarding the Kimmel affair: Don’t boycott Disney, they’re the victim

ABC, a Disney property, recently suspended the late-night host Jimmy Kimmel and took his show off the air due to pressure from the Trump administration. Some of my friends are suggesting, knee-jerk fashion, that the right reaction is to boycott Disney. But before you do that, you should understand why Disney and ABC made this decision because, as I’ll show, you’re blaming the victim.

The relationship between local broadcasters and national networks is central to this issue

First a little background on how broadcast TV programming gets to your TV screen, and how everybody gets paid.

Broadcast TV is a partnership between local broadcast TV stations and national networks. Both partners are necessary for a TV show to get to you, and these days, it’s an uneasy partnership.

There are about 250 local ABC television stations. Eight of them, in the largest markets, are owned by ABC, which is part of Disney. For example, if you live in New York, your local ABC station is WABC, owned by ABC.

The local broadcaster Nexstar Media group owns 28 ABC affiliates stations. It is not part of Disney. For example, WGNO, the ABC affiliate in New Orleans, is owned by Nexstar. These affiliates are central to the power dynamics that got Kimmel canceled, for now.

Sinclair Media is another large station group that owns 38 ABC affiliate stations, including WJLA, the station in Washington, DC.

Now consider how a national program like Jimmy Kimmel Live! gets on the air and everybody profits. ABC produces the show and pays Kimmel as well as everyone else who contributes. It sells some ads on it. Its local affiliates also sell some ads (which is why you see ads for your local car dealer next to ads for national advertisers like pharmaceutical companies). When the local cable operator or your satellite operator makes that channel available to you, it has to pay “carriage fees” to the local station, which it shares with the national network. Even if you watch the local channel programs through internet streaming, you’re watching the local channel feed, and the local channel has been paid to allow that.

Crucially for this discussion, the federal government’s regulatory oversight applies to the broadcast stations, not the network. The Federal Communications Commission issues — and can revoke — the over-the-air broadcast license of the local stations. And the FCC has historically taken disciplinary action against some broadcasters. For example, when Janet Jackson’s nipple was exposed in the famous “wardrobe malfunction” during a Super Bowl broadcast in 2004, the FCC fined CBS $550,000 for a violation of public decency regulations. (The fine was eventually reversed, but that’s a story for another day.) By contrast, during the 2013 coverage of the first Red Sox game after the Boston Marathon bombing, when beloved Red Sox player David Ortiz said on an open mic, “This is our f—ing city,” there was no obscenity fine and no FCC action. The reason: the game was being broadcast on the cable sports channel NESN, not on an FCC-licensed over-the-air affiliate, and the FCC has no authority over cable programming.

Here’s what’s relevant in the current situation. ABC is inextricably tied up with local broadcasters, many owned by other companies. By contract with them, ABC cannot deliver programs except through local broadcast. Even when those programs are delivered on cable or by streaming, they are the local broadcaster’s feed (including the local commercials); it’s not possible to escape that part of the contract. And the FCC can shut down any local broadcaster for violation of broadcast rules. So the FCC can exert its licensing power to regulate, influence, or even shut down any broadcast network.

Using the FCC to threaten political speech is unprecedented

So why hasn’t this come up before? Before this, the FCC never threatened to use its regulatory power in such a partisan way.

There’s a big difference between showing a nipple on live TV — a clear violation of broadcast standards — and Kimmel ridiculing the president and implying that all MAGA folks cared about was the ideology of Charlie Kirk’s shooter. Late night comedy hosts have always ridiculed the president, and nobody ever thought it was grounds to threaten their licenses.

In fact, as the FCC’s site states, “the public interest is best served by permitting free expression of views. Rather than suppress speech, communications law and policy seeks to encourage responsive ‘counter-speech’ from others. Following this principle ensures that the most diverse and opposing opinions will be expressed, even though some views or expressions may be highly offensive.” This is the FCC’s mandate from the law that authorized it, which explicitly states, it shall not “be understood or construed to give the Commission the power of censorship over the [broadcast] communications or signals transmitted by any [broadcast] station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of [over-the-air] broadcast communication.”

Of course, programs have sometimes pushed the limits. For example, CBS cancelled the popular comedy show The Smothers Brothers Comedy Hour because of controversial political content. But that was a case of the network taking action on its own, not a threat from the FCC.

In the case of Kimmel and ABC, FCC chairman Brendan Carr suggested Jimmy Kimmel should be suspended for his remarks and said, “We can do this the easy way or the hard way.” On a podcast, he accused Kimmel of a “concerted effort to lie to the American people” and said that his agency was “going to have remedies that we can look at.” ABC and Disney officials heard that and saw the potential for their entire business to be threatened. They had little choice but to capitulate, because the FCC chairman basically had his hand on their neck and was squeezing.

Behind the scenes machinations contributed to the problem

Here are some other facts that are relevant in this situation.

Nexstar is planning a merger with Tegna, another owner of TV stations. The merged company would exceed FCC limits on how much of the US market any station owner can control. The only way past that restriction is for the FCC to change its rules.

Nexstar stations had already planned to replace the Jimmy Kimmel program with other programming, since they didn’t like its political content. Sinclair, a station group controlled by conservatives, did the same. These actions would significantly cut into ABC’s profits on the program, since it wouldn’t be carried in many local markets (and remember, because the local station feeds are what appears on cable and streaming, it would not be available in those markets through those mechanisms, either).

Nexstar and Sinclair thus demonstrated a shared interest with Brendan Carr on getting Kimmel and his criticisms of Donald Trump off the air. It’s not a stretch to imagine that because they helped Carr achieve a political objective, his administration might allow the FCC rule change that would allow the merger — which would, in turn, make Nexstar an even more powerful political force.

Put the blame where it belongs

Disney had little choice, facing these pressures. It had to cancel Kimmel or risk losing its broadcast licenses. When you’re in broadcasting, you don’t mess around with the FCC, which can instantly cut off your air supply.

So boycotting Disney is effectively attempting to hurt the victim here. Whatever you think of Disney as a corporation, if this is what has pushed you into boycotting it, you’re just reinforcing the administration’s desire to hurt the company.

The villains here are Trump’s FCC Chairman Brendan Carr, who is applying political pressure in ways that violate the FCC’s charter, and Nexstar, which is applying corrupt power dynamics to strongarm its network broadcast partner.

If you want to apply pressure as a consumer, find out who’s advertising on your local Nexstar station, and contact those advertisers. If the local advertisers pull out, Nexstar loses profits. That’s a lot more likely to create change than kicking Disney after the FCC has already punched it in the gonads.

And you might enjoy watching cancelled but still broadcasting Stephen Colbert’s animated take on the situation.