FCC’s selective enforcement of equal time rule raises questions about political motivations

The Federal Communications Commission’s recent guidance on equal time obligations exposes a logical inconsistency in the agency’s enforcement approach: the same statutory requirement that applies to both television and radio broadcasters will be enforced differently depending on the medium.

Chairman Brendan Carr defended the distinction at the agency’s January meeting, saying television broadcasters had misinterpreted prior FCC decisions differently from radio stations. The explanation, however, raises questions about whether legal interpretation or political considerations drove the guidance.

“There wasn’t a relevant precedent that we saw that was being misconstrued on the radio side,” Carr said when asked why the guidance targeted only television programs. “That wasn’t part of anything in that decision. It was focused on the potential misreading of precedents on the broadcast TV side.”

The distinction matters because television talk shows that have drawn FCC scrutiny tend to feature liberal hosts and Democratic guests, while radio talk programming remains dominated by conservative voices who regularly interview Republican candidates.

Both formats involve similar editorial decisions about which political figures to feature and how to present them.

A 2006 decision with 2026 implications

The FCC’s guidance hinges on a narrow reading of a 2006 decision involving “The Tonight Show with Jay Leno.” In that case, the agency determined the program qualified for the bona fide news exemption when it featured California Governor Arnold Schwarzenegger during his reelection campaign.

Carr said broadcasters improperly extrapolated from that single decision.

“The cases that were decided in the past were really limited to the four corners of those decisions,” Carr said. “The extent that people were taking one adjudication from the way a particular show operated in 2006 and extrapolated from that that every single late night, every single daytime show must be bona fide news, that’s not right.”

Advertisement

Yet Carr’s reasoning presents its own logical problem.

If one FCC decision about one program in 2006 cannot be applied broadly across similar television programs in 2026, why would the absence of such a decision on the radio side mean radio programs face no similar scrutiny? The legal standard for what constitutes bona fide news programming remains the same regardless of medium.

The guidance states 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.”

No parallel statement addresses radio talk programs, despite their similar format and candidate appearances.

The factors that supposedly matter

The FCC guidance lists factors it considers in evaluating bona fide news claims: whether a program is regularly scheduled, whether content decisions are based on newsworthiness rather than partisan purposes, and whether the program is controlled by an independent broadcaster and producer.

These factors would apply equally to television and radio.

Both a daytime talk show and a late-night comedy show, along with a talk radio program, are regularly scheduled. Both make editorial decisions about which political figures to feature. Both could be evaluated on whether those decisions reflect newsworthiness or partisan intent.

Carr said the agency would apply the law “in a fair and even-handed manner” and that “everyone’s going to get fair and even-handed treatment.” The bifurcated approach to television and radio undermines that assertion.

“Congressional lawmakers were worried that TV programmers would broadly take advantage of trying to claim they were bona fide news when they weren’t,” Carr said. “But if you’re fake news, you’re not going to qualify for the bona fide news exemption.”

The formulation suggests a subjective judgment about program credibility rather than an objective application of statutory factors. It also leaves undefined what distinguishes “fake news” from legitimate news programming, particularly when the FCC chairman has indicated different standards apply to different media.

Political context cannot be ignored

The guidance arrives amid sustained criticism from President Donald Trump of late-night hosts, including Jimmy Kimmel, and daytime programs, including “The View.” Trump has called for Kimmel’s firing and repeatedly attacked both programs for their political coverage.

Carr’s own actions in September 2025 established the context for the current guidance.

Advertisement

After Kimmel made comments about the response to an assassination attempt on conservative activist Charlie Kirk, Carr warned ABC stations “we can do this the easy way or the hard way.” ABC suspended Kimmel hours later, though the decision was reversed after several days.

Commissioner Anna Gomez, the sole Democrat on the commission, characterized the guidance as part of a pattern.

“This is not a huge deal, honestly, in the grand scheme of things, but it’s part of a pattern of this administration of constantly berating the broadcasters and the networks for the content of their programs,” Gomez said. “And that is what leads to the chilling effect, is the cumulative effect of all of these threats, all of these discussions, always about the editorial decisions and the content of these broadcast stations.”

She described the FCC’s current posture more bluntly: “The FCC is now a political arm of this administration.”

The practical application problem

Gomez noted that the equal time rule already functions through a well-established process. Candidates bear the burden of requesting equal time within seven days and demonstrating the rule applies. Broadcasters work with FCC staff to resolve questions on a case-by-case basis during election periods.

“Under our rules, the burden is on the candidate seeking equal time to make a request within seven days and to establish that the rule applies,” Gomez said. “In practice, though, time is of the essence during elections and broadcasters have long worked closely with the FCC staff to resolve questions quickly.”

The guidance suggests broadcasters should seek declaratory rulings to establish whether programs qualify for the bona fide news exemption. Gomez questioned the utility of that approach given the fact-specific nature of equal time determinations.

“The problem with the idea that you’re going to file one declaratory ruling and it’s going to cover the entire industry or your entire network or one particular program is that it eliminates this fact-specific, case-by-case, contextual decision on whether something is subject to the equal time rule,” Gomez said.

She also pointed to the FCC’s continued investigation of a third-party complaint about Kamala Harris’s appearance on “Saturday Night Live,” despite NBC having already provided equal time to the Trump campaign on other programming.

“Why do we still have a complaint open and being investigated by the FCC on this issue?” Gomez said. “There is no reason. It’s pressure.”

Advertisement

Gomez challenged the premise that FCC intervention was necessary at all, noting that broadcasters have financial incentives to accommodate equal time requests without regulatory pressure.

“Broadcasters want the revenue they’re going to get from political advertising,” Gomez said. “So they want to meet requests for equal time rules. They want to be able to provide these things. The FCC does not need to threaten them on this.”

Political advertising represents significant revenue for broadcast stations, particularly during election cycles. Stations that provide candidate appearances on entertainment programming would likely welcome the opportunity to sell additional airtime to opposing candidates rather than risk FCC enforcement action.

The question then becomes why the agency felt compelled to issue guidance that reiterates existing obligations and threatens enforcement for programs it has not definitively determined violate those obligations.

What the statute actually says

Section 315 of the Communications Act requires that if a licensee permits a legally qualified candidate for public office to use a broadcasting station, it must “afford equal opportunities to all other such candidates for that office.” The statute exempts “bona fide newscast, bona fide news interview, bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or on-the-spot coverage of bona fide news events.”

The statute makes no distinction between television and radio.

The factors the FCC has developed to evaluate bona fide news claims apply equally to both. The agency’s selective application of scrutiny to one medium while explicitly declining similar action on the other suggests factors beyond legal interpretation informed the decision.

Carr said the agency would enforce the statute as written by Congress. The statute Congress wrote applies the same requirements to television and radio broadcasters. The enforcement approach the FCC has adopted does not.

“The equal time rule covers all broadcasters, whether it’s television or radio, whether they’re friends or foe of this administration,” Gomez said. “The threat is the point.”