Candidate TV Late Night Shows Not Automatically Exempt from Equal Time Obligations

The FCC’s Media Bureau has provided new guidance clarifying how it will interpret whether candidate appearances on TV late night shows qualify as exempt from triggering equal time rights for other candidates.

Any legally qualified candidate appearance on broadcast stations triggers the right of other candidates to request, within 7 days of the appearance, equal time for their own appearance. Stations must then provide comparable time opportunities.  However, there are some exceptions, including when a candidate appears on a bona fide news or news interview program. For many years, the FCC has interpreted TV late night show candidate interviews as exempt from equal time rights based on its view that those shows are bona fide news interview programs.

In the new guidance, the Bureau indicates that it will no longer consider every such program to be a bona fide news interview program, and that the circumstances of each appearance analyzed against the criteria (whether the program is regularly scheduled, whether the program is controlled by the station or an independent producer, and whether decisions on the content and participants in the program are based on newsworthiness and not partisan purposes. Stations may seek a declaratory ruling for any scenario before airing a program with a candidate.

The impact of this new guidance remains to be seen, but at least initially will likely deter the late- night TV shows from having candidate guests. While the guidance could be read broadly to include radio programs, Chairman Carr later commented that the guidance did not mention radio because similar issues have not been observed in radio.  Nevertheless, radio stations should take note of the new guidance in scheduling legally qualified candidates if their intention is to claim exemption from an equal time request because the program is news or a news interview.