Trump v the BBC cont'd: an odd and desperate letter from the US media regulator

Or: why you should have your evidence in place before you threaten a law suit

Last week President Trump said:

“We’ll sue [the British Broadcasting Corporation] for anywhere between $1bn and $5bn, probably sometime next week.”

That “next week” was this week, and that was the week which was.

There has been no news of any law suit being filed by Trump in Florida or anywhere else. There is not even news of a formal response to the rather good reply which the BBC is reported as having sent.

Perhaps it will be this coming week, or perhaps he has “moved on”.

Who knows.

But there has been a development in the story.

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The Federal Communications Commission (FCC) - the United States counterpart to our Ofcom - has sent the BBC a letter.

You can read the news report here and the FCC has published the letter on their website.

And it is an odd and desperate letter.

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It is odd because, on the face of it, the FCC do not regulate the BBC.

But the FCC make out that they have a concern because the Panorama programme complained of may have been distributed to a US affiliate of the BBC.

You would think that the US media regulator would be able to ascertain whether the programme was broadcast in the US by an affiliate broadcaster. You would think that the FCC would be aware of TV listings and so on.

But no.

The FCC is having to ask a UK broadcaster about what was shown (or not) by the US broadcasters which the FCC regulates.

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And it is desperate because it indicates that Trump and his lawyers do not have any evidence themselves that the programme was broadcast or otherwise distributed in the US.

The sender of the letter, Brendan Carr the head of the FCC, is a close Trump ally - and you may recall his pratfall in seeking to cancel the Jimmy Kimmel show.

There would be no reason for Carr and the FCC to seek to ascertain such evidence if that evidence was already available to Trump and his lawyers.

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When the legal threat to the BBC was published this blog and others pointed out that it contained no evidence whatsoever that the programme was watched in the US. Indeed, a close reading of the letter revealed an attempt to skate over that point.

This failure to provide any evidence meant that the letter was weak, notwithstanding its strident tone and colourful phrasing.

(As a general rule, the more a litigation letter relies on rhetoric, the weaker that letter is.)

A letter such as Trump’s legal threat to the BBC really should not be sent unless the evidence is in place.

But this new FCC letter indicates that there is no such evidence in place, and so there is now a scampering around to get the evidence.

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Perhaps such evidence will come to light.

Perhaps Trump and his lawyers can stand up their claim with this help from the FCC.

Perhaps Trump will sue the BBC.

Perhaps he will be awarded $1bn dollars in damages.

Who knows.

(And I am not an American lawyer.)

But what we can know is what evidence has been placed before us to back up the claims made by Trump and his letters, and there has been no evidence made available of the programme having effect in the US or of any damage having been suffered.

You would have thought Trump would have had attention to this matter.