FCC Issues Guidance on Talk Show Compliance with Equal Opportunities Rules

The FCC has issued a Public Notice providing guidance that partially upends a longstanding interpretation of the requirement that broadcasters provide equal opportunities to opposing political candidates.

Under federal law, if a legally qualified candidate for public office makes an appearance on a broadcast station, the station must provide an equal opportunity (sometimes referred to as “equal time”) to appear on the station to all other legally qualified candidates in the same race for the same office. However, candidate appearances in certain bona fide news programming, including bona fide news interviews, are exempt from the equal time rule and do not entitle opposing candidates to equal time.

For several decades, the FCC has interpreted the bona fide news interview exemption as applying to the interview portions of what are not, strictly speaking, news programs, such as talk and “infotainment” programs like The Howard Stern Show and TMZ. Under this approach, candidate appearances in the interview portions of such programs have not triggered the equal time requirement if

1. the program is regularly scheduled;

2. the broadcaster or an independent producer has editorial control over the program; and

3. decisions on the content, participants, and format are based on newsworthiness, rather than partisan purposes.

Where those three criteria were satisfied, broadcasters generally did not seek an FCC ruling on whether the bona fide news interview exemption applied. In fact, it appears the FCC has not ruled on a request for a declaratory ruling involving a bona fide news exemption in nearly ten years, although such requests were fairly common at one time.

The FCC now says that prior decisions which took the approach described above were fact-specific and limited to the programs that were the subject of the rulings. Moreover, the FCC is signaling that application of the bona fide news exemption will now be scrutinized more carefully and that the determination as to whether decisions as to the interviews are based on newsworthiness, rather than partisan purposes, will be viewed in a different light.

Here are a few takeaways about the FCC’s new guidance:

• The FCC appears to be focused on television, and specifically late-night talk shows such as Jimmy Kimmel Live! which have been heavily criticized by President Trump and other conservatives. Television stations are mentioned throughout the Public Notice but broadcast radio, which is subject to the same equal opportunities rules, is not mentioned.

• Stations can no longer rely on FCC precedent as to applicability of the bona fide news interview exemption. Only by obtaining a declaratory ruling, in advance, from the FCC can a station be assured that it will not face regulatory action for interviewing a candidate without providing equal opportunities to opposing candidates.

• Stations which obtain from third parties (including television networks) programs that may interview candidates should discuss the implications of this Public Notice with their program suppliers to assess risks and the potential need for indemnification.

• The Public Notice reminds broadcasters of their obligation to place required materials in their political files. If a candidate’s appearance is exempt from the equal opportunities rule, no record of that appearance is required. However, if an appearance is not exempt, a record is required to be uploaded to the station’s political file. A broadcaster that takes the position that a candidate appearance is exempt based on prior FCC precedent now runs a risk of being found to have violated the political file rule, as well as its equal opportunities obligation, if the FCC later determines that the appearance was not exempt. A broadcaster could upload a record of an appearance with a notation that the station believes the appearance was exempt from the equal opportunities requirements and that the filing is only being made out of an abundance of caution, but this could trigger a request for equal time by opposing candidates and require the station to make a potentially difficult decision on how to handle these requests.

It should be noted that the Public Notice and the FCC’s rules do not require a station to contact other candidates about a candidate appearance and potential opportunity to request equal time. When notice of a candidate appearance is uploaded to a station’s political file, it is incumbent on opposing candidates to request equal opportunities within seven days.

If you have questions about the FCC’s new guidance and its potential impact, please contact David Burns in in our Media Practice Group.