One week ago, FCC Commissioner Anna M. Gómez slammed the release by the FCC’s Media Bureau of guidance “on the application of the statutory equal opportunities requirement and the bona fide news exemptions to broadcast television stations, including their airing of late-night and daytime talk shows.”
Now, the nonresident senior fellow of the American Enterprise Institute (AEI) has chimed in, examining “the latest volley” in FCC Chairman Brendan Carr‘s “ongoing campaign to address political bias in legacy media.”
In an opinion piece released Wednesday by the AEI, Daniel Lyons puts a magnifying glass to new guidance released through acting Media Bureau Chief Erin Boone that was intended — as Republican leadership sees it — to remind broadcasters of its “Equal Time Rule.”
Lyons says the guidance is part of Carr’s desire to reinvigorate “long-settled content-based broadcasting regulations.” Opposition to these efforts has been vocal, with numerous complaints that the administration seeks to stifle speech coming to fruition.
As Lyons discusses, the Equal Time Rule is simple: a broadcaster that permits a political candidate to use its broadcast station must offer equal opportunities to all other candidates for that office, without censorship. “Through this rule, Congress sought to prevent a candidate from using the public airwaves to secure an electoral advantage,” Lyons writes. But it has unintended consequences as well, he adds, pointing to a 1959 broadcast by a Chicago television station of Mayor Richard Daley welcoming a foreign diplomat to town. This triggered a complaint from perennial fringe candidate Lars Daly, who campaigned around Chicago wearing an Uncle Sam costume. The Commission granted Daly’s request for Equal Time, which prompted Congress to create an exception for “bona fide news” broadcasts.
“As candidate interviews became a broader part of the entertainment landscape, the FCC has extended the bona fide news exception beyond traditional news programming to include the daytime talk show Donahue, Entertainment Tonight, and (incredibly) The Howard Stern Show,” Lyons says.
Carr’s recent guidance reins in this trend, he adds. “It explains that exemptions are fact-specific, including whether the program is regularly scheduled, whether an independent producer controls the content, and whether content decisions are made on the basis of newsworthiness or a partisan intent to promote a candidate.”
Thus, while a 2006 decision exempted the interview portion of The Tonight Show with Jay Leno, this does not necessarily mean all talk shows are similarly exempt, Lyons opines. “The guidance was widely seen as a shot at late night’s Jimmy Kimmel Live! and the daytime show The View, both of which President Trump has repeatedly criticized (and the latter of which hosted Trump’s opponent, Kamala Harris, during the 2024 presidential election). Kimmel in particular has criticized the guidance as an effort to stifle political speech.”
Kimmel’s pushback raises a key question for Lyons: Is the Equal Time Rule constitutional?
He responds to his own question by stating, “In general, the Supreme Court has found that these types of right-to-reply statutes violate the First Amendment right of editorial control. That was the holding of Miami Herald v. Tornillo, which struck down a Florida law requiring newspapers that criticize a candidate to give the candidate equal space to respond. The Court explained that this interfered with the newspaper’s right to decide what to print and what not to print in its pages.”
The landmark 1968 Red Lion Broadcasting v. FCC Supreme Court decision made an exception for broadcasters, as it upheld the “Fairness Doctrine.” That’s the FCC rule creating a right-of-reply for candidates attacked on TV or radio programs. “The Court held that the spectrum was a scarce resource over which only a privileged few government licenses could speak,” Lyons notes. “Therefore, the First Amendment did not prohibit the government from making sure the public was fully informed by hearing both sides of key issues discussed on that medium.”
The key to that decision is “spectrum” — in 1968, scarcity was fully accurate. Today? Many will argue that there is no scarcity. For Lyons, his focus first turns to the end of the Fairness Doctrine during the Reagan Administration, as it was found to be unconstitutional and considered by leaders at the time to be a bad policy.
Now, a doctrine upheld when Nixon was President and discarded by Reagan is getting renewed attention by President Trump in his second term.
How does Lyons believe the FCC should go forward? “Although Red Lion technically remains good law, it’s far from clear that the Court would uphold it today,” he concludes. “America no longer gets its news from a handful of broadcast channels. We’re informed via a diverse media landscape of which broadcasters are a small (and shrinking) part. In a media ecosystem no longer defined by scarcity, Carr’s revival of the Equal Time Rule may say less about ensuring democratic fairness than about how long a broadcast-era solution can survive in a post-broadcast world.”
