ABC says FCC wants an editor’s chair and picked ‘The View’ to take it

Disney’s ABC opened its latest filing at the Federal Communications Commission by disowning the request it was making.

“ABC did not come to the Federal Communications Commission asking for anything,” the network wrote in reply comments filed July 6.

“The Commission compelled ABC to file the Petition for Declaratory Ruling at issue here, directing the network to explain why the government should not dictate which political candidates may appear on The View—even though the Commission itself resolved that very question in ABC’s favor more than two decades ago, ruling in 2002 that The View is a bona fide news program not subject to the equal opportunities requirement.”

The petition asks the commission to reaffirm that “The View” qualifies as a bona fide news interview program, a designation that exempts it from the equal opportunities requirement of Section 315 of the Communications Act of 1934. That requirement obliges a station giving airtime to one legally qualified candidate to offer comparable time to that candidate’s opponents. Four categories of news programming are exempt, and the news interview exemption is the one at issue.

The filing, in MB Docket No. 26-124, was the last word in a comment cycle the Media Bureau opened May 22. The National Association of Broadcasters filed a separate brief the same day arguing the statute itself cannot survive the First Amendment. ABC kept to the program, the process and a metaphor it returned to more than once.

“The First Amendment does not permit the government to sit in an editor’s chair,” the filing said. “Yet that is the seat the Commission now proposes to take—deciding which broadcast programs qualify as legitimate news and, for those it finds wanting, compelling them to surrender their airtime to guests they never chose to feature.”

How the docket got here

The proceeding traces to a Jan. 21 Media Bureau public notice, which stated that no current broadcast program had affirmatively established bona fide news interview status under the agency’s framework. Scrutiny of “The View” followed an appearance by Texas Senate candidate James Talarico. A supplemental letter of inquiry on March 26 directed KTRK Television Inc., Disney’s Houston station, to file a petition for a declaratory ruling. ABC and KTRK filed it May 7. The bureau opened it for comment May 22, with initial comments due June 22 and replies July 6.

ABC framed that order as the point of the whole exercise: the commission told the network to justify why the government should not control whom it interviews.

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The core of ABC’s case is that the commission already answered this question.

In 2002, the Mass Media Bureau concluded in a letter that the program qualified for the exemption. ABC treats that determination as binding, says it has structured its operations around it and argues that nothing the law cares about has changed since.

Brendan Carr, the commission chairman, has read the 2002 document as a staff letter rather than a formal ruling, and one tied to the program as it existed then.

“A letter based on the contours of a program that existed many, many years ago isn’t necessarily binding precedent for a show that exists today,” Carr said.

Anna Gomez, a commissioner, has taken the opposite view, arguing the finding has stood for 24 years and cannot be set aside informally.

“The commission can’t just wave a wand and make a prior declaratory ruling disappear,” Gomez said. “If the commission wants to do that, then it needs to go through the proper regulatory channels.”

ABC pressed the same procedural point, asking that the full commission rather than the Media Bureau decide the petition, because the bureau cannot overturn commission precedent on delegated authority. It quoted Carr against himself, citing a 2024 statement he made as a commissioner that the bureau lacks authority to make “new and novel decisions without authorization from the full Commission.”

The test, and the factors ABC wants kept out

Much of the brief works through the commission’s three-part test, which asks whether a program is regularly scheduled, whether the broadcaster controls it and whether decisions on format, content and participants turn on newsworthiness rather than an intent to help or harm a candidacy.

ABC argued the program clears all three, and pointed to recent guests it called self-evidently newsworthy, among them Vice President J.D. Vance, former first lady Jill Biden, Sen. Chris Murphy, Justices Ketanji Brown Jackson and Sonia Sotomayor and former Rep. Marjorie Taylor Greene.

The network then set out to knock down factors that opposing commenters wanted added: the political views of the hosts, the partisan balance of the guests, the ratio of news to entertainment and whether hosts hold journalistic credentials. None of those appears in the statute or in four decades of commission precedent, ABC argued, and each would put the government in the business of grading speech by viewpoint or certifying who counts as a journalist.

“A host’s political point of view—even a manifestly partisan one—says nothing about whether programming decisions are driven by newsworthiness rather than an intention to advance or harm a candidacy,” the filing said.

“A rule disqualifying programs based on the perceived politics of their hosts is not a neutral regulatory standard. It is viewpoint discrimination.”

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Talk radio, the ad campaign and the retaliation claim

ABC’s sharpest argument is that the commission has aimed the rule at one kind of program and left another alone. The filing named conservative talk radio, including “The Sean Hannity Show” and “The Mark Levin Show,” where candidates appear without their opponents, and said the pattern is not accidental.

“What has changed is not the program but the political climate around it,” the filing said. “The Commission has trained its attention on daytime and late-night television—programs perceived as unfriendly to the current administration—while leaving untouched the vast landscape of talk radio, where candidates routinely appear without their opponents. A rule pressed against one set of speakers and quietly suspended for another, along lines that track the administration’s political preferences, is not evenhanded regulation.”

That claim sits inside a broader record the network laid out: an investigation into Disney’s diversity practices, an inquiry into the program and an April 28 order directing ABC to file early renewal applications for all eight of its owned television stations. The renewal matter runs on a separate docket, MB Docket No. 26-131, and ABC filed under protest, calling the order unlawful, arbitrary and unconstitutional. Early renewals for a major broadcaster had not been ordered in more than 50 years.

On June 22, ABC began on-air and online campaigns urging viewers to file comments in both proceedings, with spots airing during “The View” and localized versions running across its owned stations in New York, Los Angeles, Chicago, Philadelphia, Houston, San Francisco, Raleigh-Durham and Fresno.

Carr called that effort a campaign of misinformation. ABC answered that there is nothing misleading about telling the public a proceeding could reach a broadcaster’s editorial control over who appears on its air. Tens of thousands of comments followed, most of them supporting the show, according to the filing.

The stakes for programmers sit in the edges of the exemption.

A ruling that narrows it, or that ties it to a commission assessment of a program’s editorial choices, would change booking and format decisions across daytime, morning and late-night television whenever a guest is also a candidate.

The NAB filing raised a larger prospect, arguing that Section 315 and the parallel rule cannot survive First Amendment review at all. ABC made a version of the same point in closing.

“Any rule that compels speech to fit the government’s preferred balance of viewpoints is deeply suspect; the equal opportunities rule cannot survive First Amendment scrutiny without a robust bona fide news exemption,” the filing said.

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