DOJ opposes an emergency hearing over the FCC’s review of ABC’s licences

Disney asked a federal judge to hold an emergency hearing by Tuesday over the Federal Communications Commission’s move to review the licences of its eight ABC-owned stations. The Justice Department told the court on Thursday that there is no hurry.

The government’s argument is procedural and, on its face, mild. A hearing designation order would simply “set in place a further administrative process in which Disney and ABC would have the opportunity to make their case”, the department said, which is to say nothing irreversible happens on Tuesday.

Disney reads the same process differently. Its lawsuit, filed in the US District Court in Washington and assigned to Judge Loren AliKhan, describes the FCC’s conduct as an “extraordinary assault on free speech” and an attempt to “coerce and retaliate” against the network.

The company is seeking a temporary restraining order, which is why the calendar matters to it and not to the government. A restraining order sought after the administrative machinery has started is a considerably harder thing to obtain than one sought before.

The stakes are structural for a company in the middle of a rebuild. Disney is reorganising its business around a Disney+ super app under a new chief executive, a project that assumes a stable regulatory relationship with Washington.

The dispute did not arise out of nowhere. President Donald Trump called last month for ABC stations to lose their licences after the network declined to carry a prime-time speech, and he has spent the better part of two years pressing the commission on the point.

Broadcast licences are the pressure point because they are the only part of a modern media company that the federal government still licences directly. Cable channels, streaming services, and studios are not licensed; the eight stations Disney owns outright are.

That gives the FCC leverage over roughly the smallest and least profitable part of the Disney empire and, simultaneously, the part that brings the network’s news division into homes. The commission does not have to revoke anything for the leverage to work.

A hearing designation order is the mechanism at issue, and it is rarely used against a major broadcaster. It moves a licence into a contested proceeding before an administrative law judge, where the burden sits with the licensee to show it should keep what it has.

The Justice Department is correct that the process would give Disney a forum. It is also true that the process itself is the sanction, in the sense that a network fighting for its licences has an incentive to be careful about what it broadcasts.

That is the argument Disney is making, and the reason it wants a court involved before the proceeding begins rather than after. The First Amendment claim is not that the FCC will take the licences, but that the threat of taking them is doing work.

Judge AliKhan has not yet ruled on the timing request. Nothing in the government’s filing addresses the merits of Disney’s free speech claim, which is standard at this stage and will have to be answered eventually.

The wider American media industry is watching a separate fight over whether state attorneys general can block the Paramount and Warner Bros merger, which turns on a different question but the same underlying one: how much say government gets over who owns the country’s screens.

The eight stations are in New York, Los Angeles, Chicago, Philadelphia, San Francisco, Houston, Raleigh, and Fresno, which, between them, cover a substantial share of the American population. Disney’s remaining ABC reach comes through affiliates it does not own and cannot be compelled through the same mechanism.

Affiliates have their own licences and their own risk calculations, which is what made the Jimmy Kimmel episode instructive: several affiliate groups declined to carry the programme after it returned, without any regulator having to order anything.

The FCC has not commented on the litigation. Disney’s stations remain on air and licensed while the case proceeds.