Backed by a wave of public support, ABC filed its formal reply with the FCC on Tuesday over its ongoing investigation into “The View,” in which the network reiterated that the regulator’s actions are threatening editorial independence and could violate its rights under the First Amendment.
The broadcaster had until Monday evening to file its reply comments to support its petition for a declaratory ruling that would reaffirm that the daytime talk show is a “bona fide” news program that should be exempt from the agency’s equal time rule for political candidates.
“ABC did not come to the Federal Communications Commission asking for anything,” the filing stated. “The Commission compelled ABC to file the Petition for Declaratory Ruling at issue here, directing the network to explain why the government should not dictate which political candidates may appear on ‘The View’ — even though the Commission itself resolved that very question in ABC’s favor more than two decades ago, ruling in 2002 that ‘The View’ is a bona fide news program not subject to the equal opportunities requirement.”
Over 77,000 comments have been filed to date for the proceeding, with the majority of those in support of ABC.
“The commenters are right to be concerned. The First Amendment does not permit the government to sit in an editor’s chair,” the network said. “Yet that is the seat the Commission now proposes to take — deciding which broadcast programs qualify as legitimate news and, for those it finds wanting, compelling them to surrender their airtime to guests they never chose to feature.”
ABC then questioned whether a federal regulator may “override a broadcaster’s editorial judgment about whom to interview,” citing its Constitutional right under the First Amendment.
“Nothing about ‘The View’ that the law cares about has changed since the Commission last answered that question more than two decades ago,” the network continued. “The program remains regularly scheduled, remains under ABC’s control, and remains driven by the same lodestar — newsworthiness — that has long led it to interview the day’s most consequential figures, from Presidents and Senators to Supreme Court Justices. What has changed is not the program but the political climate around it.”
Per ABC, the FCC has “trained its attention on daytime and late-night television,” given these programs are “perceived as unfriendly to the current administration.” Yet, the company feels the FCC has left talk radio “untouched,” despite candidates routinely appearing without their opponents.
The company further argued that those opposing its petition do not “meaningfully engage the Commission’s settled, three factor test under which ‘The View’ plainly qualifies” and are seeking to “graft on factors” never before used to evaluate whether a program qualifies for the bona fide news exemption, including the opinions of the program’s hosts, the ratio of news and entertainment and whether an interviewer holds government-approved journalistic credentials.
“Each novel factor would require the Commission to do precisely what the Constitution forbids: grade speech by its viewpoint and decide who is a ‘real’ journalist and what is ‘real’ news,” the filing read. “The right to inform the public has never depended on a regulator’s imprimatur. And if that has always been true, it is only more so today.”
It also noted that technological and business developments have multiplied the channels through which Americans learn about the world, with podcasts, streaming programs and online platforms that “answer to no traditional newsroom.”
“A moment when more voices reach the public than ever before is precisely the wrong time for the government to begin demanding an official credential before a speaker may be treated as a journalist. Nor can the Commission treat broadcasters as second-class speakers on the theory that the airwaves are scarce,” ABC continued. “The public’s access to information about candidates does not turn on dictating the guest list of a single daytime program, and the Supreme Court has grown only more emphatic that the government may not rebalance private expression to achieve its own conception of fairness.”
The latest filing comes after the FCC issued new guidance in January 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. At the time, the body said any program that is “motivated by partisan purposes” would not be entitled to an exemption under longstanding FCC precedent.
A month later, chairman Brendan Carr confirmed that the regulator had launched an investigation into “The View,” questioning whether the talk show had violated the aforementioned “equal time” rule when it aired an interview with then-Texas Democratic Senatorial candidate James Talarico.
Then in April, the FCC demanded that ABC submit an early license renewal for its eight owned affiliate stations as part of an investigation into Disney’s diversity, equity and inclusion (DEI) practices. In response, ABC said it was filing the early renewal “under protest” in response to the agency’s “unlawful, arbitrary and unconstitutional” order.
ABC would subsequently launch a viewer awareness campaign to rally public support, which Carr has argued is a “campaign of misinformation” but a “fairly standard, off-the-shelf strategy.” He maintains that the FCC is simply enforcing the provisions of the Communications Act.
“Disney has a dispute with the law that Congress has passed and that’s fine, but Congress is the forum for that. We’re going to apply the law,” he said during a press conference last month. “We have not made a decision one way or the other, we’re open-minded, we’ll see what they say, but that was, I think, probably the basis for some of those comments.”
While the deadlines for “The View” proceeding have passed, the public can still comment on the ABC license renewal. Petitions to deny the license renewal were due June 29, while opposition is due July 29 and replies are due Aug. 5.
The public can comment via the FCC’s Electronic Comment Filing System online and enter the corresponding docket number along with their submission: No. 26-131.
