WASHINGTON—In a move that could have a major impact on daytime and late night talk shows, the Federal Communications Commissions' Media Bureau has issued guidance telling broadcast stations airing certain late night and daytime talk shows that they are required to give equal time to rival candidates.
The guidance could also give affiliate stations a legal rationale for dropping controversial programming like "Jimmy Kimmel Live", which regularly criticizes President Trump.
It isn't certain, however, what legal impact the new guidance might have given that the FCC has not voted on any new regulations.
“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 noted in its latest 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.”
“In the meantime, the Media Bureau encourages all television broadcast stations to ensure that they are making all appropriate equal opportunity filings in accordance with section 73.1943 of the FCC’s rules and as required by agency precedent. 47 CFR § 17.1943. It is important that both broadcasters and legally qualified candidates understand the FCC’s equal opportunities regulations and how they can result in broadcasters offering opposing legal qualified candidates comparable time and placement,” the FCC concluded.
The move drew immediate fire from the lone Democrat on the FCC, Commissioner Anna Gomez, who said it was an “an escalation in this FCC’s ongoing campaign to censor and control speech.”
“Nothing has fundamentally changed with respect to our political broadcasting rules,” Gomez said in a statement. “The FCC has not adopted any new regulation, interpretation, or Commission-level policy altering the long-standing news exemption or equal time framework. For decades, the Commission has recognized that bona fide news interviews, late-night programs, and daytime news shows are entitled to editorial discretion based on newsworthiness, not political favoritism. That principle has not been repealed, revised, or voted on by the Commission. This announcement therefore does not change the law, but it does represent an escalation in this FCC’s ongoing campaign to censor and control speech.
“The First Amendment does not yield to government intimidation,” Gomez added. “Broadcasters should not feel pressured to water down, sanitize, or avoid critical coverage out of fear of regulatory retaliation. Broadcast stations have a constitutional right to carry newsworthy content, even when that content is critical of those in power. That does not change today, it will not change tomorrow, and it will not change simply because of this Administration’s desire to silence its critics.”
Last year, FCC Commissioner attacked "Jimmy Kimmel Live" for violating public interest standards for broadcast stations and applauded Nexstar and Sinclair for temporarily blacking out his show on their broadcast stations. This drew fire from free speech groups and some conservatives like Ted Cruz who argued that Carr's interpretation of public interest rules could be used to censor conservatives.
