FCC Signals Elimination of News Interview Exemption for Political Candidates During Entertainment Programs

The FCC has long recognized an exemption from the equal opportunities rule (a.k.a., the equal time rule) for political candidates that appear and are interviewed during entertainment talk programs.  These interviews fell within the bona fide news interview exception to the equal time rule for political candidates.  Over the years, there have been a number of decisions supporting this approach, such as Jay Leno’s interview of California Governor Arnold Schwarzenegger on the “Tonight Show,” segments on “Entertainment Tonight,” “Donahue,” and even “Meet the Press.” 

Last week, the FCC's Media Bureau issued a statement that this approach may be changing. It noted that past decisions did not create a wholesale exemption for all talk shows.  Each decision is limited to the facts of each show.  As for shows currently on the air, the FCC noted:

“Importantly, 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.  Moreover, a program that is motivated by partisan purposes, for example, would not be entitled to an exemption under longstanding FCC precedent.”

The Commission encourages broadcasters to file for a declaratory ruling if they are unsure whether a particular program would qualify for the exemption.

There is no question that this “guidance” is aimed at the current late-night network talk and daytime shows because of their purported political leanings.  It places the networks and stations on notice that they cannot be sure such interviews would qualify under the news interview exception to the equal time rules.

No change to existing law: The decision is not a return to the Fairness Doctrine.  It does not require a network or station to provide equal time in all situations involving issues of public importance.  It is limited to access by legally qualified candidates. Moreover, the decision itself did not say current shows would not qualify for the news interview exception.  However, it sends a signal, albeit a strong signal, that they may not qualify.  The decision seems to invite petitions so the FCC can render judgment on these programs. 

Potential Impact Limited to Elections: The decision applies only to an appearance by a legally qualified candidate during an election.  The decision has no impact unless the person being interviewed is a legally qualified candidate under the law.  Note, however, the rule will get triggered once the person is a legal candidate; it is not limited to the lowest unit charge time period (60 days before a general election/45 days before a primary).

Stations Potentially Liable: As the decision noted, the FCC may take enforcement action against the stations airing the programs.  If the program is a network program, the FCC could take an enforcement action against the network's owned and operated station or its affiliates.  Moreover, the decision could apply to syndicated and locally produced programs as well. 

While the decision does not change the law, there is no question that the FCC intends to address the ability of late-night and daytime talk shows to host candidates during the upcoming mid-term elections.  There is a significant potential that this new approach will “chill” the appearances of candidates on these types of programs.  We intend to follow this issue closely.

You can see the FCC’s decision here.

Noted communications attorney David Oxenford has written an excellent article on this subject.  You can see the article in his Broadcast Blog here.