ABC Accuses FCC of Threatening to ‘Chill Critical Protected Speech’

WASHINGTON—In what may be the strongest pushback by any broadcast network against attempts by the FCC and the Trump administration to regulate broadcast content, The Walt Disney Co.’s ABC has filed a sternly worded petition arguing that the “Commission’s actions threaten to upend decades of settled law and practice and chill critical protected speech, both with respect to ‘The View’ and more broadly.”

The network made the filing on behalf of KTRK Television, Inc. and American Broadcasting Companies in response to an Federal Communications Commission probe into ‘The View’ for potential violations of equal time rules for political candidates. KRTK-TV is the ABC-owned station in Houston; daytime talk show ‘The View’ had aired an interview with Democratic Texas State Rep. James Talarico, now a nominee for U.S. Senate.

In January, the FCC’s Media Bureau issued new guidance telling broadcast stations airing certain late-night and daytime talk shows that they are required to give equal time to rival candidates and that programs "motivated by partisan purposes" would not be given a news exemption, as they had beeen for the past two decades.

“Late-night programming and daytime talk shows have been exempt from that [equal time for political candidates] requirement since 2006 when an exemption was given to Jay Leno because he was conducting bona fide news interviews,” the FCC's Media Bureau noted in the new guidance. “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.”

This revised guidance on equal time rules quickly led to a controversial incident in which Stephen Colbert said he was told by CBS not to air an interview with James Talarico, who was running in the Democratic party primary for the Texas Senate. CBS has denied it issued such an order and Colbert ended up running the interview on YouTube, where it racked up more than 9.4 million views.

Subsequently, Carr announced that the FCC had opened an investigation into ‘The View' for running an interview with Talarico.

The petition for declaratory judgment with the FCC complains that “narrowing the Commission’s long-established approach to bona fide news exemptions, however, would risk restricting political discourse exactly when it is needed most. While candidates are always able to connect with voters on cable, podcasts, and social media, specifically requiring broadcast airtime for all qualified candidates does not expand speech; rather, it makes coverage infeasible, which ultimately reduces it.”

“The government does not get to decide `what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’” the filing argued. “Or which `ideas and beliefs [are] deserving of expression [and] consideration.’ The danger is that the government will simply decide which perspectives to regulate and which to leave undisturbed. In fact, while the Commission now questions The View’s decades-long exemption, it has not expressed any inclination to apply a similar interpretation of the equal opportunities rule to other broadcasters, including the many voices—conservative and liberal—on broadcast radio. And as a broad array of voices, including many conservatives, have recognized, if the government is allowed to discriminate on the basis of viewpoint in a Republican administration, there is little preventing it from doing so when the Democrats are in charge.”

“Until now, it has never been disputed that The View qualifies as a bona fide news interview program,” the petition noted. “In 2002, ABC requested and obtained a Declaratory Ruling from the Mass Media Bureau confirming that status. That Declaratory Ruling remains in full force and effect. The Commission has taken no action over the last two decades to modify or overturn the Declaratory Ruling and there is no basis for doing so now. Given that KTRK Television acted in good faith reliance on the Declaratory Ruling and the consistent guidance provided by the Commission for decades, the Commission cannot find now that KTRK Television violated any of the Commission’s rules with respect to appearances by legally qualified candidates on The View.”

The filing also noted that at the end of March, the Media Bureau ordered KTRK Television to file another petition for declaratory ruling regarding The View’s status as a bona fide news interview program. In parallel, on April 28, the Media Bureau issued an extraordinary order demanding the early filing of all of ABC’s license-renewal applications, including for KTRK-TV.

“Combined with the Commission’s other recent actions, including publicly announcing its investigation concerning ‘The View’ and presaging an outcome, this suggests that the Commission is implementing major shifts in policy and practice, including how the Commission intends to apply the equal opportunities requirements. Such an abrupt and substantial change in long-established policy requires the action of the full Commission and the oversight of the courts.”

The filing also included a statement from the show’s executive producer saying, “I do not select potential interview subjects with the intent to advance or harm any individual’s candidacy for any office or any other partisan purpose.”

Brian Teta, executive producer of “The View,” also stressed that “interview subjects are not given any option to edit or otherwise influence or control the broadcast of the interview, and do not see the final interview until it airs.”

Teta said after U.S. Rep. Jasmine Crockett, a candidate in the Texas Democratic primary for Senate, appeared on ‘The View’ Jan. 6, co-hosts Alyssa Farah Griffin and Whoopi Goldberg suggested to him that Talarico should be a potential interview guest. Talarico eventually defeated Crockett in that primary.

“In deciding whether to invite Mr. Talarico to appear on ‘The View,’ I considered the facts that, at that time, Talarico’s campaign had been receiving national attention and that Talarico had gained a significant following on social media,” he added. “These factors, along with the newsworthiness of the Texas senate primary elections and potential audience interest in Mr. Talarico, informed my judgment that Mr. Talarico was a newsworthy subject. My decision to invite Mr. Talarico to appear on the program was not motivated by any intent to advance or harm any individual’s candidacy.”

In response, FCC Commissioner Anna Gomez said:

The full ABC filing is available here.