FCC Washington Counsel David Oxenford reports that the FCC Media Bureau has issued a Public Notice to provide “guidance” on the application of the political broadcasting “equal opportunity” rule – in particular, the application of the “bona fide news” exemption to late night and daytime talk shows.  Although the rule applies equally to radio and television stations, the PN focuses on television programming.  This public notice was released January 22.

The equal opportunity rule requires broadcast stations that allow a candidate to use their station to provide “equal time” to other legally qualified candidates for the same office.  Certain programs are considered “exempt” and the appearance of a candidate on such a program does not trigger an equal time obligation.  Exempt programs include news and “news interview” programs.

The PN expresses concerns of when a program that purports to be a news interview program is intended or designed for the political advantage of particular candidates.  The PN singles out a 2006 Media Bureau decision that the interview portion of “The Tonight Show with Jay Leno” qualified as a bona fide news interview program, emphasizing that it was the first time such a finding was applied to a late night talk show program and that it was contrary to a 1960 Commission decision regarding “The Tonight Show with Jack Parr.”  The PN cautions that the 2006 decision should not be interpreted to mean that the interview portion of all arguably similar entertainment programs – whether late night or daytime – qualify for the same exemption.

The PN warns television broadcasters that 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.” It further cautions that “a program that is motivated by partisan purposes would not be entitled to an exemption.”

In the past, the FCC has issued a number of declaratory rulings that many programs under the control of a licensee that regularly feature interviews with newsmakers, which are not used for partisan purposes, are exempt news interview programs.  The Commission’s staff had indicated that such declaratory rulings were not necessary for a program to be considered exempt – they just provided assurances that they were in fact exempt. Given the FCC’s statements in this PN, past interpretations may be subject to more scrutiny today.  The PN seems to recognize the questions it raises about past practices, and states that 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 file a petition for declaratory ruling.”

In addition, the PN “encourages” television broadcast stations to ensure that they are making all appropriate equal opportunity filings in accordance with the rules.  The reference to “appropriate equal opportunity filings” cites to Section 73.1943 of the Commission’s rules – the rule about the political file.  We note that appearances by candidates in exempt programs have not, in the past, been required to be listed in the political file.  This PN does not purport to change that policy.

While the PN does not explicitly change the equal opportunities rule or the bona fide news exemption or overrule any prior decisions, the PN is a clear signal that the FCC will critically review any assertion that the bona fide news interview exemption applies to any late night or daytime talk show, particularly if it determines that the program is “motivated by partisan concerns.”  In fact, the subtitle of the PN emphasizes: “Broadcast TV stations airing covered programming motivated by partisan purposes must comply with equal opportunities requirement.”  This may be particularly significant for certain programs that have been publicly characterized by President Trump and/or Chairman Carr as having a partisan bias against Republicans in general and Trump in particular.

Democratic Commissioner Gomez issued a statement about this PN, saying that the PN does not change Commission precedent “that bona fide news interviews, late-night programs, and daytime news shows are entitled to editorial discretion based on newsworthiness, not political favoritism.”  Her statement goes on to say that the PN “therefore does not change the law, but it does represent an escalation in this FCC’s ongoing campaign to censor and control speech.”

Oxenford expects to release some further insights on this matter in the days to come.