The Federal Communications Commission has issued new guidance on Wednesday warning that late night and daytime talk shows will not be exempt from the equal opportunities requirements put in place by Congress.
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.
“Concerns have been raised that the industry has taken the Media Bureau’s 2006 staff-level decision to mean that the interview portion of all arguably similar entertainment programs— whether late night or daytime—are exempted from the section 315 equal opportunities requirement under a bona fide news exemption,” the FCC’s new guidance states. “This is not the case. These decisions are fact specific and the exemptions are limited to the program that was the subject of
the request.”
The agency said it 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.” It added that any program that is “motivated by partisan purposes” would not be entitled to an exemption under longstanding FCC precedent.
The new guidance comes after ABC’s “Jimmy Kimmel Live!” was temporarily pulled from the airwaves back in September for remarks the late night host made following Charlie Kirk’s death.
At the time, FCC chairman Brendan Carr condemned Kimmel’s remarks and urged local broadcasters to take action.
“When we see stuff like this, look, we can do this the easy way or the hard way,” Carr said in a YouTube interview at the time. “These companies can find ways to change conduct, on Kimmel, or there’s going to be additional work for the FCC ahead.”
Following Carr’s remarks, Kimmel would get pulled from ABC affiliate stations owned by Nexstar Media Group and Sinclair Broadcasting and the network would follow suit soon after. Kimmel was suspended for around a week before his show was ultimately restored.
Carr’s remarks would lead to criticism from both sides of the political aisle and he was ultimately pressed further about the Kimmel situation and pressures the Trump administration may be placing on the regulator during a Senate Commerce Committee hearing last month.
In addition to Kimmel, Carr has also previously threatened ABC’s “The View” about pulling the show’s bona fide news interview exemption.
He also previously reiinstated a dismissed complaint against New York’s WNBC-TV, which accused the network of violating the FCC’s equal time rule when former Vice President Kamala Harris appeared on “Saturday Night Live” during the weekend leading up to the 2024 presidential election.
“Any program or station that wishes to obtain formal assurance that the equal opportunities requirement does not apply (in whole or in part) is encouraged to promptly file a petition for declaratory ruling that satisfies the statutory requirements for a bona fide news exemption,” the FCC’s guidance concludes. “It is important that both broadcasters and legally qualified candidates understand the FCC’s equal opportunities regulations and how they can result in broadcasters offering opposing legal qualified candidates comparable time and placement.”
In a statement, the FCC’s sole Democrat commissioner Anna Gomez said that “nothing has fundamentally changed” with respect to the agency’s political broadcasting rules.
“The FCC has not adopted any new regulation, interpretation, or Commission-level policy altering the long-standing news exemption or equal time framework,” Gomez said in a statement. “For decades, the Commission has recognized that bona fide news interviews, late-night programs, and daytime news shows are entitled to editorial discretion based on newsworthiness, not political favoritism. That principle has not been repealed, revised, or voted on by the Commission. This announcement therefore does not change the law, but it does represent an escalation in this FCC’s ongoing campaign to censor and control speech.”
Gomez added that the First Amendment “does not yield to government intimidation.”
“Broadcasters should not feel pressured to water down, sanitize, or avoid critical coverage out of fear of regulatory retaliation. Broadcast stations have a constitutional right to carry newsworthy content, even when that content is critical of those in power,” she continued. “That does not change today, it will not change tomorrow, and it will not change simply because of this Administration’s desire to silence its critics.”
