Articles Posted in 2026

In a not all that surprising development for those who monitor Chairman Carr’s pronouncements, the FCC’s Media Bureau today released a “Guidance on Political Equal Opportunities Requirement for Broadcast Television Stations” narrowing the programs found exempt from the Equal Opportunities requirement.  The clear target is appearances by candidates on the TV broadcast networks’ morning and late night interview programs.  Tellingly, while the Equal Opportunities requirement applies to both radio and TV stations, today’s Public Notice containing the guidance is directed only at “Broadcast Television Stations” (see the title above).

The Equal Opportunities requirement (often inaccurately called “equal time”) was created by Congress via Section 315(a) of the Communications Act of 1934.  This requirement was not only in the original statute as enacted in 1934, but the language was copied over from its predecessor statute, the Radio Act of 1927.  This 99-year-old provision requires that whenever a broadcast station has a political candidate appear on-air, the station must make comparable airtime available on comparable terms to all competing candidates that request it.  So if Candidate A buys a campaign spot, the station must sell comparable airtime at comparable rates to competing Candidates B, C, D, and E if they request it.  The true rub lies in the comparable rate part.  If the station grants free airtime to Candidate A, then B, C, D, and E are entitled to request free airtime as well.  As long as their request arrives within seven days of Candidate A’s appearance, the station must honor it (admittedly, I am simplifying a bit here).

Incredibly, from its original adoption in 1927 until 1959, the statutory language provided for no exceptions, so even a station airing a presidential news conference would trigger Equal Opportunities obligations if the President was running for reelection at the time.  The only reason this situation could persist for so long is that the FCC inferred an exception for newscasts in which a candidate appeared.  However, in 1959, the FCC reversed itself on even that, concluding that newscasts were not exempt.  The U.S. Court of Appeals for the DC Circuit has stated that decision “created a national furor, and it was feared that its strict application of the equal opportunities provision ‘would tend to dry up meaningful radio and television coverage of political campaigns.’”

In response, Congress reasserted itself, and in a matter of months amended the Communications Act to create exemptions where a candidate appears in:

(2) a bona fide news interview;

(3) a bona fide news documentary; or

In the early years after these exemptions were added, the FCC was rather begrudging as to which events it believed qualified as bona fide news.  In 1962, it ruled that the airing of candidate debates did not qualify for any of the exemptions, and in 1964, it ruled that candidate press conferences, even by the President, were not exempt from Equal Opportunities.  Almost comically, the FCC realized years later that the legislative history it had relied upon in making both these decisions referenced language that was stricken from the legislation before it was enacted.  As a result, the FCC reversed itself in 1975, adopting a broader interpretation of the exemptions.

In the years since, the FCC has specifically blessed a broad range of programs as containing bona fide news interviews, moving beyond traditional journalism programs like Meet the Press and Face the Nation to Donahue (1984), Entertainment Tonight (1988), the Sally Jessy Raphael Show (1991),  Jerry Springer (1994), Politically Incorrect (1999), Howard Stern (2003), and The Tonight Show with Jay Leno (2006).  Notably, the Communications Act only requires that a program fit into one of the four exemptions to be exempt from Equal Opportunities.  No pre-approval by the FCC is required.  However, as the U.S. Court of Appeals for the DC Circuit has noted in a different context, the FCC has “life and death power over” broadcasters, and it is therefore not surprising that stations would want a clear ruling from the FCC that a program is exempt before treating it as such.

Some early press articles have portrayed today’s action by the Media Bureau as “[t]he Federal Communications Commission told broadcasters late night and daytime talk shows are not exempt from the ‘equal time’ rule of the Federal Communications Act, meaning the talk shows will be required to provide political candidates equal opportunity for air time if their opponents sit down for interviews.”  That’s not quite right.  What the Media Bureau did today is more subtle, but equally consequential.  Late night and daytime talk shows that fit into one of the four exemptions will still qualify as exempt from Equal Opportunities because that is what the statute says and the FCC can’t overrule Congress.  Similarly, Congress didn’t require that broadcasters get prior approval from the FCC in order to treat a program as exempt, so the FCC can’t require that either.  What the FCC can do is make the life of a broadcast licensee airing an “unblessed” program miserable through its investigatory authority and control over broadcast license renewals and station sales, among other things.

That makes the dramatic aspect of today’s Public Notice the following two paragraphs from its last page (bold added):

“Concerns have been raised that the industry has taken the Media Bureau’s 2006 staff-level decision [regarding The Tonight Show] to mean that the interview portion of all arguably similar entertainment programs—whether late night or daytime—are exempted from the section 315 equal opportunities requirement under a bona fide news exemption.  This is not the case.  As noted above, these decisions are fact specific and the exemptions are limited to the program that was the subject of the request.

Importantly, the FCC has not been presented with any evidence that the interview portion of any late night or daytime television talk show program on air presently would qualify for the bona fide news exemption.  Moreover, a program that is motivated by partisan purposes, for example, would not be entitled to an exemption under longstanding FCC precedent.  Any program or station that wishes to obtain formal assurance that the equal opportunities requirement does not apply (in whole or in part) is encouraged to promptly file a petition for declaratory ruling that satisfies the statutory requirements for a bona fide news exemption.”

In other words, the Media Bureau has wiped the slate clean, making clear that no currently airing program should be considered exempt based on a prior FCC blessing, not even The Tonight Show Starring Jimmy Fallon because it is not The Tonight Show with Jay Leno (the latter being found exempt in 2006).

That means there are no safe harbors among these programs, and broadcast stations must either (1) treat such programs as exempt using their own best judgment and run the risk of being second-guessed by the FCC later, with appropriate penalties meted out, (2) seek a declaratory ruling for each program from the FCC, with the risk that any episodes aired without providing Equal Opportunities while awaiting such a decision could lead to FCC penalties if the FCC later concludes the program doesn’t fit into one of the statutory exemptions, or (3) treat every candidate appearance in every non-newscast program as triggering Equal Opportunities, and hand out airtime to competing candidates like candy.  Of course, all of these lead to the far more likely option 4: no candidate interviews aired outside of newscasts.  That hardly seems to be in the public interest, which is the guiding mandate of the FCC, much less consistent with the First Amendment.

On that last point, the Media Bureau’s words from its 2006 decision granting a safe harbor to The Tonight Show seem relevant (brackets omitted):

“The Entertainment Tonight ruling further states that ‘Congress did not note that bona fide news could be coverage of only certain substantive areas.’  It stated that the prospect of the Commission making determinations as to whether particular kinds of news are more or less bona fide ‘would involve unwarranted intrusiveness into program content and would be thus, at least suspect under the First Amendment.’  The ruling concludes that ‘so long as the program characteristics set out by Congress are met, our role is properly limited to determining whether a broadcaster was reasonable in deciding that a program fits within an exemption.  Our role is not to decide, by some qualitative analysis, whether one kind of news story is more bona fide than another.’

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[W]e again note the Commission’s observation in Donahue: ‘it would seem elemental that Congress when adopting the news exemptions contemplated interviews with elected officials and candidates for elected office as newsworthy subject matter.’  As the Commission stated in Donahue, ‘Congressional intent is to defer substantially to the good faith news judgments of licensees.’”

How much deference remains to be seen.