Carr: Equal-Opportunity Broadcast Shift Not Aimed at Radio; Gomez Blasts ‘Pressure Campaign’

While broadcast attorneys told us they expect the policy to have limited practical effect on their clients, Public Knowledge Senior Vice President Harold Feld theorized that equal-opportunity concerns could provide a justification for broadcast groups to preempt network programming featuring political candidates.

Last week’s Media Bureau guidance said its previous rulings that specific late-night and daytime TV talk shows are eligible for a news exemption from the FCC's equal-opportunity rules applied only to those particular shows with those particular hosts, and nothing else.

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 news exemption, the bureau's public notice said. It also said the exemption wouldn’t apply to any program that the agency determines “is motivated by partisan purposes.” In a blog post last week, Wiley said the notice was "silent as to the factors or metrics that may be considered for determining whether a program is 'motivated by partisan purposes.'"

The bureau said programs should petition the FCC for a declaratory ruling that they qualify for the news exemption. Carr said Thursday that so far, the agency hasn’t received any such petitions.

The notice mentioned only TV shows, and several broadcast attorneys told us that has left radio programs unsure if the FCC would also be targeting them. The equal-opportunity rules apply to TV and radio. Carr said Thursday that the bureau was focused on clarifying which FCC precedents no longer applied, and “there wasn't relevant precedent that we saw that was being misconstrued on the radio side.” The notice pointed to Media Bureau rulings that The Tonight Show With Jay Leno qualified for the news exemption, but the bureau issued a similar ruling in 2003 for The Howard Stern Show, a radio program.

“Radio is subject to the exact same rules as TV,” said Wilkinson Barker broadcast attorney David Oxenford in a blog post. “Even though the Commission’s attention may be on TV, radio broadcasters should not ignore the Public Notice, as candidates who want equal time after the appearance of another candidate on a radio program will be quick to cite to this Public Notice to back up their demands.”

In her own news conference Thursday, Gomez downplayed the policy guidance, saying that it's aimed at frightening and pressuring broadcasters. “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,” she said. “The guidance issued recently by the FCC was a threat, but it did not change much as far as what are your rights and obligations,” she added. "This is just a pressure campaign."

Some broadcast attorneys also told us they don’t expect the policy guidance to have a large practical effect on programming because the equal-opportunity rules are narrow and apply only to legally qualified candidates -- those who have filed their paperwork -- in elections for positions in jurisdictions where the program is being aired. The rules apply only to appearances by candidates, not surrogates or representatives. “The rule is you have to give equal opportunity to candidates on both sides,” said National Religious Broadcasters General Counsel Mike Farris. “It does not mean that you are curtailed at all in what you say about candidates.” Oxenford said the policy will disincentivize having candidates on shows that aren’t clearly news shows, but “political talk will go on.”

John Fredericks, who hosts a conservative talk radio show and owns 15 radio stations, told us he approves of the Media Bureau’s policy shift. “I favor the rule, and I think what Brendan Carr is doing is opening up an avenue for more honest and open dialog and debate on the issues and the policies.”

Preemption and Public File Questions

Feld agreed with Gomez that the public notice didn’t change any regulations, but he expressed concern that the equal-opportunity rules could be used as a justification for broadcast station groups to preempt programming featuring candidates critical of the Trump administration. “It gives an excuse for group owners who want to preempt but have been worried about backlash because of what happened with” Jimmy Kimmel Live!, Feld said. Carr has repeatedly urged broadcast groups to preempt more network programming, and the FCC has an ongoing proceeding on the network/affiliate relationship, which Carr has said is aimed at strengthening stations’ ability to preempt network programming. Because a violation of the equal-opportunity rules would fall on the stations rather than the networks, broadcast groups might be able to justify a preemption to the networks and public, Feld said.

The bureau notice also highlights public file requirements for the equal-opportunity rules, which Feld said could provide an avenue for the FCC to make things difficult for broadcasters outside enforcement proceedings. Oxenford similarly raised the issue. “With the ambiguity as to whether or not a program is exempt unless and until the FCC says that it is exempt, how is the broadcaster supposed to know whether public file entries are required?” he wrote. “It almost seems that this is one of those regulatory ‘gotchas.’”

The FCC has issued very few enforcement actions related to the equal-opportunity rules in recent years, and broadcast attorneys told us it isn’t clear what the penalties may be. Carr last year reinstated a dismissed equal-opportunity complaint against NBC over former Vice President Kamala Harris’ appearance on Saturday Night Live, but the agency doesn’t appear to have taken further action on it. The complaint was dismissed by the Media Bureau under the previous FCC in part because NBC followed the rule and provided free airtime to President Donald Trump at two major sporting events. "Why do we still have a complaint open and being investigated by the FCC on this issue?" Gomez asked Thursday. “There is no reason. It's pressure.”

It’s also not clear what the limits of the policy’s language about “partisan purposes” are, Feld said. "Could an interview on ABC News in theory violate the equal-time rule if the FCC said, 'Well, you gave them a lot of softballs'?"

Oxenford said the notice's focus on partisanship “puts the FCC in the position of assessing whether programming decisions are being made for partisan purposes -- or whether the program simply reflects facts and opinions that some parties do not like. We have in the past noted how uncomfortable it is for the government to be determining what is ‘true’ and what is not in connection with political speech.” Making decisions about what's partisan and what's not could put the agency in conflict with language in the Communications Act barring the FCC from censoring broadcasters, he added.