FCC Requests Comment on Whether ABC/Disney Petition for Recognition of “The View” as a Program Exempt from Political Equal Opportunities 

A few weeks ago, the FCC published new guidance clarifying how it interprets whether candidate appearances on TV late night shows qualify as exempt from triggering equal time rights for other candidates, stating that it would no longer consider every such program to be a bona fide news interview program.  Instead, the circumstances of each appearance must be analyzed against specific 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). The guidance gave stations the option to seek a declaratory ruling for any scenario before airing a program with a candidate.

ABC/Disney has now filed just such a petition for declaratory ruling about its daytime news magazine/talk show “The View,” arguing first that the FCC declared the program exempt years ago, and lambasting the FCC’s new guidance as a violation of the First Amendment.  In response, the FCC issued a public notice seeking comment on the petition, with comments due June 22. The notice casts the broadcast political candidate access rules as reflecting Congress’ intent for broadcast stations to operate in the public interest, with the rules having limited exceptions subject to interpretation by the FCC.

While the FCC’s new guidance did not explicitly apply its new interpretation to radio talk shows, and Chairman Carr seemed to indicate later in public comments that radio shows were not implicated, radio stations should be following these proceedings carefully for any outcome. As a reminder, 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. In response to such a request, 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 (that meets the criteria in the new guidance).