FCC chairman Brendan Carr responded to ABC’s Jimmy Kimmel after the host weighed in on the agency’s new “equal opportunities”rule guidance, which will exclude late night and daytime talk shows from receiving a bona fide news exemption.
Under the Communications Act of 1934, Congress put protections in place
to ensure equal access to broadcast station facilities for legally qualified candidates for office, regardless of political affiliation. The rule covers individuals who have publicly announced their intention to run for office and qualify under applicable state or federal law to hold the office being sought.
In 2006, the FCC determined that “The Tonight Show with Jay Leno” qualified for an exemption from the rule as a “bona fide news interview” — the first time that such an exemption had been applied to a late night talk show.
Kimmel, who was temporarily suspended last year for remarks made about Charlie Kirk following criticism from Carr, reacted to the rule change during a “Jimmy Kimmel Live!” monologue last week.
“I might need your help again,” the late night host said. “This isn’t the ’50s anymore … Back then there were only three major networks. Now we’ve got cable, we’ve got streaming, we have satellite, podcasts, social media. There are thousands of outlets now. Broadcast TV used to account for 100 percent of viewing. Now, it’s like 20 percent. There are so many channels, some of them doing 24/7 Trump programming: Fox News, Newsmax, One America New, Real America’s Voice. None of them are required to give equal time, but we are because we use the public airways.”
During the FCC’s monthly press conference on Thursday, Carr responded to Kimmel, saying it’s ultimately up to Congress to decide whether the rule should be expanded to other forms of distribution.
“If you don’t want to comply with the public interest standard with your programming now, you have so many other ways of getting it out there, whether it’s a podcast, a cable channel, a streaming service,” Carr continued. “If you want the unique privilege of distributing over this one type of thing, broadcast TV, then we should really make sure that you’re actually complying with the rules of that distribution mechanism.”
He added that the statutory history of the bona fide news exemption is clear that Congress was “worried that TV programmers would broadly take advantage of trying to claim they were bona fide news when they weren’t.”
“But if you’re fake news, you’re not going to qualify for the bona fide news exception,” he added.
When asked during the presser if the rule would also apply to talk radio shows, Carr said there “wasn’t a relevant precedent that we saw that was being misconstrued on the radio side.”
“It was focused on the potential misreading of precedents on the broadcast TV side,” he said. “Of course, as you know, the rule applies to broadcast, radio and TV, but that one was focused on those TV precedents.”
In her own presser, Democrat FCC commissioner Anna Gomez said that the rule change would have to apply to talk radio as well.
“We must keep in mind that the primary motivation for this action was to lend a hand to the political operation of this administration, not to help consumers,” she said. “And I also want to note what the administration is not focusing on, that these rules apply to all broadcasters, television and radio, and they must be applied evenly to the administration’s friends and critics alike.”
She also slammed the rule change as a “misguided announcement meant to once again threaten late night and daytime shows who dare to report the news or speak out against this administration.”
Gomez added that the FCC is “no longer independent and it is no longer primarily interested in acting in the interest of consumers,” calling it a “political arm” of the Trump administration.
“I have one clear message to the broadcasters that we oversee: Do not be cowed into stopping your independent reporting of what is happening to this country,” she added. “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, it does not change your fundamental first amendment right to broadcast newsworthy content, but the threats are the point.”
