Kimmel Is Back, But Disney vs. Trump Is Just Beginning

0:00Hi, everyone. It's Amy Poehler, and I'm launching a new podcast called Good Hang. In preparation for that, I asked some of my friends to send in some videos and give me some advice. Just be yourself and the guests will come. Don't be the celebrity that this is their, like, sixth thing they're doing. I love true crime and cooking podcasts. Is there any way you could combine the two? Well, everyone has an opinion and a podcast. So, join me for Good Hang. It's rough out there. We're just trying to lighten it up a little. Adobe Firefly is the all-in-one creative studio with AI-powered image and video editing for today's creative process.

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2:03I thought he did a great job. He went after Trump and Brendan Carr and the FCC, but in very relatable terms. I thought he showed real emotion for Charlie Kirk and his wife. He emphatically said he never intended to link the shooter to the MAGA movement. Whether you believe that probably depends on your personal politics. But overall, I think a big win for Kimmel and for Disney, which would definitely like to put this controversy behind them. But no, I don't think it's going away. Not yet. I live in Los Angeles, which thankfully is not home to one of the 66 ABC stations owned by Nextstar and Sinclair that refused to air the show last night and ongoing.

2:40Nextstar actually put out a statement today saying they're continuing to talk to Disney. They called it productive discussions, but they want to ensure that Kimmel, quote, reflects and respects the diverse interests of the communities we serve. It's very vague. While Brendan Carr has walked back his easy way or the hard way threat to Disney, he's still pretty openly siding with the affiliates, which are much more conservative in their leadership than the Hollywood media companies. It's actually funny. These station groups are not exactly mom and pop shops. They're also big public companies, but whatever.

3:12And Donald Trump, of course, has definitely not backed down. Last night, he threatened to sue, saying, quote, Last time I went after them, they gave me$16 million, referring to the Disney-ABC News settlement. This one sounds even more lucrative, he said. Some mixed messages there and a lot of questions surrounding what the legal rights and leverage points are here on both the FCC-slash-affiliate side and the Disney side. Can Brendan Carr really go after the Disney station licenses for airing Jimmy Kimmel? Would Disney really pull football or retaliate in some major way against Next Star and Sinclair?

3:48Lots of tricky legal and government questions. So we've got Eric Gardner here to discuss. He's a writer for Puck, covers the legal world. He wrote about this topic recently. So today it's the Jimmy Kimmel saga. No, it's not over. It may actually just be getting started. We've got the legal angle and what might come next. From The Ringer and Puck, I'm Matt Bellany, and this is The Town.

4:12Okay, we are here with Eric Gardner, who, in addition to being my colleague at Puck, is an expert on the legal and regulatory aspects of the Jimmy Kimmel saga, has written about it a bunch of times, including in the Puck newsletter, What I'm Hearing Plus. First of all, welcome. Thanks for having me. Secondly, I want to get into this because lots of people texting and emailing me and they have questions. Kimmel is back, but this is not over. And this is going to play out for the next week's months. And we want to get into some of the issues that are outstanding and how they might go and be resolved.

4:51So let's start with the FCC and the affiliates. What are their options for the next steps here? Let's start with the FCC. What can Brendan Carr do or what do we expect him to do now that Disney has openly defied him, put Kimmel back on? He's kind of walking back his threats. But what is he likely to do and what can he do? Well, I don't think he's likely to do anything. Really? You don't think so? Even with Donald Trump threatening lawsuits on True Social? Yeah, I think he realizes that he'd be on shaky legal ground. But yeah, I mean, like Donald Trump is prodding him. So there could be some news distortion complaint that comes to the surface and is, quote unquote, investigated.

5:40And just to be clear, the news distortion complaint would be the FCC acting in its duty to uphold the public interest has a potential cause of action against a news outlet that is pushing out distorted news. The standard, as we know, is very high for what is a distorted news item, but he could do that. And then Disney would have to respond with what I presume would be a First Amendment argument. Yeah, but let's be clear, because one of the things that doesn't really get talked about with news distortion is what the remedy is. And the remedy isn't fines or even the cancellation of license. What happens is you get like a demerit in your character file.

6:22And so when it comes time to renew your license, they can take it into consideration. Is that like double secret probation? Yeah, exactly. So, you know, I just think it's a little bit toothless. Yeah, theoretically, it could lead to action. But if it did lead to action, you know, Disney would storm into court and 100 % would win. They would. It's just a question of do they want that? And optically, do they want to be litigating against the government and having all of the attendant noise around that? Yeah, I think that the bigger concern for them is upsetting MAGA Nation and Trump supporters, not necessarily upsetting Trump or Brandon Carr.

7:04But that's part of why I want to do this episode, because I want to know if that is even possible here, because they have now chosen to go against the government and go against these affiliates, which is necessarily going to cause noise. And I want to know what the FCC and the affiliates have as options to stoke that. Continue with Carr. What are some of his options and what he can do? So, you know, I think what he can do most is back affiliates when they get into these sort of negotiations with the networks. So in the typical agreements between network and affiliate, the affiliates have to clear their primetime schedule for networks, and there's penalties if they go over it.

7:46So for instance, a standard contract I've seen says that the affiliates have to provide all their primetime agreement, and they can only preempt up to 15 hours per year. Now, there's a big exception to that. there's an FCC rule that allows affiliates to reject programming that they deem contrary to the public interest or that they have a better local programming for. And this is something that rarely comes up, but it could come up in this context. And the affiliates could say that they're relying on this rule, this public interest rule. And so maybe Brendan Carr sticks up for these affiliates saying that they can enforce this and that, you know, ABC can't hold back programming for them.

8:35Well, okay. So that a lot, a lot going on in what you just said, because there's been a lot of attention on this issue of how long Nextstar and Sinclair can continue to refuse to air Jimmy Kimmel Live. And if I'm hearing you correctly, what you're saying is, is that in these affiliate agreements, typically they are limited as to how much they can preempt. But if they can show that the content is not in the public interest for their audience, they could preempt it indefinitely. Yes. Well, you know, some of it depends on the contract language because, you know, back in the day, there used to be some contract language that said something like, you know, if you had accepted this sort of programming in the past, you can't suddenly declare it out of the public interest.

9:24Well, that show's been on ABC for 23 years. So that'd be hard to say Jimmy Kimmel Live is so extreme that we've been airing it for 23 years. Right, right. So, you know, a lot of this we don't know. We don't know what the contract is specifically between ABC and these affiliates. A big if here. Right. But we can guess that the affiliates have fairly broad rights to reject programming that they think is contrary to the public interest. And they're also allowed to substitute programming, which they deem has greater local importance, which if you paid attention to what these stations were airing in lieu of Kimmel, a lot of them were airing news programming because they want to make sure that they're within these rights.

10:09maybe that's why Sinclair decided not to air the Charlie Kirk tribute special in the slot and put that on YouTube because maybe they want to make sure they're putting news programming there instead. Although hasn't it been celebrity family feud on a lot of these stations? No, that was what ABC put out. That was what ABC put out on their network. You know, those family feud things they have these questions and we learn what's in the public interest literally. Sure. Steve Harvey is always in the public interest. We know that. Okay, and Brendan Carr is stoking this. I mean, one of his tweets of the last couple days is, he's talking about the Democrats.

10:45He says, they simply can't stand that local TV stations, for the first time in years, stood up to a national programmer and chose to exercise their lawful right to preempt programming. We need to keep empowering local TV stations to serve their communities of license. So, there you go. He is backing them. Now, you wrote in your Puck newsletter that But Carr is not as powerful as he may think and many may think he is, that he's actually doing these things and making noise because he doesn't have very many powers these days. So explain your argument there that this is all just noise. Yeah, well, a few things.

11:28Number one, he rules over broadcast television, but a lot of what's happening in entertainment is away from broadcast television. Of course. But this has been true for the past five to seven years that the influence of broadcast is waning. But there are people who keep cutting the cord that keep streaming the youth of today. They're not watching television at all. So, you know, Brendan Carr rules over a very narrow sector of television, which is why he keeps trying to put his hooks into whatever little point of leverage he has. It's not just the license. He's talking about these deals that require FCC approval, that he can get into it and use as points of leverage.

12:11And as we've noted, he has not made very many rulings or filed many cases. he has essentially used his voice box to threaten and try to get these companies to act on their own. And he's been successful in that regard. But it's a sign that he knows that his actual power is limited. Yeah, he uses his megaphone, a lot of his bluster. And, you know, to the extent that he has power in that megaphone, sure, he has that. But we give him that power by taking him seriously. Well, but he's got Donald Trump behind him. We know that Trump is not necessarily dictating, but is certainly supporting all these decisions.

12:55Yeah, and egging him on and all that. But at the end of the day, if Bob Iger and network executives stood firm, they'd probably win a lot of these battles because there are broad First Amendment rights. And moreover, the Supreme Court in recent years has limited the power of these agencies. They say that, you know, these agencies aren't, you know, free to interpret statutes as they as they, you know, wish. They have held back these agencies from from doing things that go too far. Yeah. And that's a big Republican talking point is limiting the administrative state. And the FCC would certainly be part of that.

13:33Yeah. You know, that's why they're going to lift the cap on how many stations you can own because they say it's outdated. And a lot of people say that. I mean, listen, Disney is benefiting here too. What was the first thing Disney did after Kimmel aired last night is they put the entire monologue on YouTube and distributed it far and wide. That is a dagger to these stations that have pulled it because you know what? People aren't going to watch it there. They're just going to watch it on YouTube. And lo and behold, it is now the most watched monologue in the history of YouTube. I mean, we're talking tens of millions of people are going to watch this monologue on YouTube.

14:12And those are people who are not watching on broadcast. Yeah, I'm sure more people watched it online and digitally than watched it live on television. Oh, of course. We just got ratings for the episode and it was about 6 million viewers, more than 6 million, which is more than three times the normal. Lucas and I were a bit low in our estimates the other day. not bad especially since about 20 23 percent of the stations were not carrying the show you know and to the to the extent that these stations are saying hey this is not in our local interest i'm sure that you know someone can dig up stats that that well there are people in your local community who seem to be digging it right so that's car the affiliates now we know that next star put out a statement today they say they are continuing to discuss the matter in productive discussions, they say, with Disney, quote, with a focus on ensuring the program reflects and respects the diverse interests of the communities we serve.

15:12What does that mean? Are they making content requests for Jimmy Kimmel Live? And is Disney going to let them? You know, it's a lot of gobbledygook, but I think at the end of the day, it's just saying like we have the right to do, you know, what we want. I think they're laying the path to walk this back, right? They're going to be able to say, we got some assurance from Disney that Kimmel will be respectful of all of our audience's beliefs and we are going to bring the show back, right? I think that they need to bring it back. I think that there's consequences if they don't bring it back. Because everyone says that Brendan Carr, they need to preempt Kimmel to clear their Tegna merger with the FCC.

16:02I think it's the reverse. They need to bring back Kimmel or else all these state AGs, the Democratic ones in places like California and Colorado and Arizona and New York, are going to go to court and they're going to challenge the merger and they're going to try to get an injunction on the transaction. So I think their biggest political risk is not at the federal level. It's at the local level. And they need to be careful. That's interesting. Although Elizabeth Warren has said she's going to investigate this. And, you know, that's the federal level. Yeah. I mean, there'll be some uncomfortable subpoena request and all that.

16:40Which they can ignore while the Republicans are in power. Right. We'll see what happens a year from now in the midterms. But for now, I think that the biggest risk for a Nextstar is at the state level, not necessarily at the federal level. So all of these state attorneys general can just band together and try to block this merger on a state level because most of these blue states have stations that are going to be impacted by this Nextstar -Tenga merger. Yeah, you know, a lot of these markets have, you know, a Fox station and an NBC station. And do you want the same owner of Fox owning NBC? And if you're having an owner say, you know, this Jimmy Kimmel, he can't be in our markets.

17:28Well, suddenly you're blocking two big networks from airing this station. And I imagine that there are some regulators out there who would have a problem with that.

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18:18All new Sundays at 9, exclusively on AMC and AMC+. I am the vampire Lestat. I'm a rock star now. I'm a little killer. I'm a little one. From Anne Rice's Immortal Universe comes what Vulture calls the most momentous event in fictional rock history. thousands of fans love you i want millions it's my era and rice is the vampire list dot all new sundays at nine exclusively on amc and amc plus stream now all right so we've talked about the leverage on the fcc and affiliates side let's talk about the leverage on the disney side because they now have this show airing it's getting good ratings on the first night they i would argue they have the public on their side.

19:07I mean, obviously a lot of fans of Donald Trump don't like that it's back, but the first hurdle was achieved. Kimmel came back. He did a very emotional and a very funny monologue. He did attack Trump and Carr and those guys, but he also was very, not apologetic, but emotional when talking about Charlie Kirk and that he claims he never meant to imply that the tutor was MAGA. And I think that worked. I think it was convincing. Now, what leverage does Disney have? Well, the leverage doesn't come from Kimmel. The leverage comes from their sports. Disney has all these local sports, you know, college football games.

19:51But are they going to do that? Are they going to pull sports from these affiliates and like declare war? That is the equivalent of dropping a nuclear bomb. Right. Well, if the affiliates are not airing their programming, that could be, you know, cause to, you know, cancel the contract. And that would be a contractual issue. If they break, if they breach the contract longer than what they are able to take this stuff off the air, Dizzy could say you've breached, we are canceling the contract, right? Yeah. I think that, you know, at the end of the day, the affiliates and networks are usually on the same page.

20:22They want to work together. That's the reason for having a relationship in the first place. and it's a business for them. I mean, the overarching trend here is that the affiliate TV business is not as good as it once was. We know ratings are falling. The linear business is dying. All of these executives at these companies are in it for the next five to 10 years and they know that eventually this business is going away. Disney, for its part, is putting all of its best content on the streaming service. It's directing people to the streaming service. If you go to a lot of these digital MPBDs, the YouTube TVs of the world, they put the local stations there where people are getting this stuff digitally.

21:04They're not getting it through traditional means. So Disney knows that business is eventually going away, but it's still a business. And they still have to care about these, which is why I don't think they would employ a nuclear option like pulling SEC football. Not yet. Not just for Jimmy Kimmel. But if it gets to the point where, you know, the stations are just doing too much, they're not just preempting the late night talk show, but they're also preempting the national news shows or something else. It might cause some reconsiderations of the relationship. Because the relationships are not good.

21:43I mean, the tensions between the affiliates and the networks are probably, one source told me today, as bad as they've ever been just because of the economics here. So what I think Disney is going to do is avoid the nuclear option and just stick them with little knives. You know what? Put more stuff on YouTube. Maybe take that show that was going to go to ABC. Let's just do that as a Hulu exclusive now. Let's do the bare minimum of what we need to have to satisfy our affiliate arrangements. Maybe we don't give them the plum seating at the upfronts like we used to. We don't invite them to that steak dinner like we used to.

22:22They're going to kind of just put little needles in them. And then when they get to the next negotiation, there's no fun and games anymore. It's what do we need to do to renew this on terms that are most favorable to the Walt Disney Company? And the old time slap on the back is over. It kind of reminds me of, you know, the relationship between movie studios and theaters. Yeah, very good point. You know, it would be unheard of 10 years ago for these companies to do a 45-day window or to put these smaller movies on Peacock from Universal after three weekends. But now they just don't care. They're like, okay, we have a business to run.

23:01And I think Disney will increasingly, to the extent they're not already doing it, increasingly look at these affiliates that way. Yeah, you know, the funny thing about this whole thing is that it harkens back to how ABC was created in the first place. Because back in the 1930s, Congress passed a Communications Act, and the FCC stood up and created all these ownership rules and stuck their head in the relationship between networks and affiliates. And that went all the way to the Supreme Court. And the Supreme Court backed the FCC's authority to make these ownership rules. And it basically forced NBC to sell the station group that became ABC.

23:41That is interesting. And obviously, that was at a time where there were three networks. And that was the only way to watch visual medium. and now, I mean, I was frustrated being on the West Coast last night because everybody I knew on the East Coast was able to watch Kimmel live or, you know, taped live. And I just went on YouTube. Everybody just went on YouTube. So it just decreases their leverage, right? Yeah, I don't see really the point of the preemption. I think they're, you know, putting up a big fuss. They're like the kid who doesn't get what they want and they cry and they say like, oh, I'm not going to have dinner now.

24:18But in the end, they'll probably take it back eventually. So could Brendan Carr actually go after the ABC licenses? I think that, you know, like the next time Disney needs to renew a license, let's say WABC in New York or KABC in Los Angeles. Disney owns eight of the larger affiliates, including New York, LA, and Chicago. Yeah, so maybe there's something there. But, you know, overall, I think that, you know, we talk about Brandon Carr way too much. He loves it. He is a media whore. Oh, yeah, yeah, yeah. Absolutely. He leans into this sort of thing. But you know what? I think he overplayed. I think this backfired.

25:00I think they did not expect that people like Ted Cruz and Rand Paul and Theo Vaughn, for Christ's sake, is now speaking out against Department of Homeland Security saying, take me out of your videos. Joe Rogan is against it. None of these comedians like the notion of free speech being taken away, especially from a president who championed free speech when he was running. And I just think that the manosphere is against you. They misstepped here. I also think that maybe he's raised his boss Trump's expectations too much. You know, now Trump thinks that Brendan Carr can do do this magical stuff. And when he's not able to accomplish that, that's going to make the big boss unhappy.

25:42And so it just puts him in a bad position. I think, you know, Brendan Carr is smart enough to realize that he's going to lose these court battles. So often he doesn't do this sort of thing to drag. He's been very good at staying out of court. And now Donald Trump is on true social saying we're going to sue. Exactly. We'll see where it goes from here. Yeah. On the leverage front, I would so much rather be Disney than I would the stations right now for many reasons. But I just think the leverage favors Disney here. I agree with you there. Which they should have recognized a week ago and not taking Kimmel off the air.

26:18Or if they did so, they should have been very clear that because we're up against a deadline, we're going to preempt the show tonight and figure out how to deal with this and bring him back. Not just say we are going to preempt this indefinitely. Yeah, and it goes back to my point that this is all about Trump supporters and the political atmosphere. And, you know, they were probably reading stuff on X and social media and, you know, not necessarily reacting to Brendan Carr, but to the atmosphere that this was going to be controversial. There's a retribution aspect to the reaction here. So many conservatives feel that they were censored on social media and that the Biden administration was urging social media companies to cancel people and deplatform people.