Trump says FCC should take into account bias against him when it comes to TV licenses
President Donald Trump told reporters that networks that air negative coverage of him risk having their FCC licenses revoked.
The Federal Communications Commission said in new guidance that daytime and late-night television talk shows do not have a blanket exemption from the law that requires stations to provide equal broadcasting opportunities to political candidates.
The station’s Jan. 21 public announcement comes months after FCC Chairman Brendan Kerr made comments that some interpreted as a threat to revoke ABC stations’ licenses unless Jimmy Kimmel was fired for his on-air comments about the assassination of Charlie Kirk. President Donald Trump’s administration has also criticized Seth Meyers, Stephen Colbert and “The View” co-hosts.
Experts told USA TODAY that such laws go back decades, are not widely enforced against television stations, and violate the First Amendment right of broadcasters to make their own editorial decisions.
“The FCC is not intended to be, and is not authorized to be, the nation’s speech police,” said Robert Cohn Revere, principal counsel at the Foundation for Individual Rights and Expression.
USA TODAY has reached out to the FCC and the National Association of Broadcasters for comment.
Notice regarding late-night TV
The Communications Act of 1934 required FCC licensees in both radio and later television to provide all legally eligible candidates for public office an equal opportunity to appear on the air.
The law was amended in 1959 to exempt news programs, news interviews, news documentaries, and on-the-ground coverage of news events from its requirements.
The FCC determined in 2006, under the administration of former President George W. Bush, that interview segments on “The Tonight Show with Jay Leno” qualified for the news interview exemption, according to the FCC notice.
But this singular decision was interpreted and applied too broadly in subsequent years, resulting in the widespread belief that all daytime and late-night talk shows were exempt from equal opportunity requirements, the FCC said in new guidance.
“This is not true,” the notice said.
Rather, the agency said such decisions are “fact-based” and exemptions are “limited to the program that was the subject of the request.”
Guidance could have a chilling effect on broadcasters
Jenna Leventoff, senior policy adviser at the American Civil Liberties Union, said narrowing the definition of what constitutes news to exclude talk shows “could have very dramatic First Amendment implications.”
She said her organization supports a broader definition, given the vast number of options people now have to stay up to date on current events, including traditional news outlets, social media and talk shows.
The 1934 law was based on a limited number of public airwaves. David Keating, director of the Free Speech Institute, said such a rationale would be “obsolete” by 2025 due to the dramatic changes in the media environment that have occurred in the years since.
He said the equal opportunity requirement was “constitutionally questionable” in the modern context, adding that the courts could resolve the issue if a lawsuit were filed.
However, he said his talk show may avoid booking political candidates in light of the FCC’s notice.
“As a result, I think the situation for viewers and the public will become even worse,” he said.
Although the notice only refers to television, Mr. Cornrevere said these policies apply to radio as well, as the Broadcasting Act applies to both mediums. That means conservative talk radio, said to be a key factor in President Trump’s political success, will also be bound by equal opportunity requirements.
It remains to be seen how much of a mandate the FCC will impose on talk shows over such requirements, but Leventov said, “Even if it’s unenforceable, damage could still occur.”
“Sometimes that threat is enough to chill speech,” she says.
Breanna Frank is USA TODAY’s First Amendment reporter. please contact her bjfrank@usatoday.com.
USA TODAY’s coverage of First Amendment issues is funded by the Freedom Forum in collaboration with our journalism funding partners. Funders do not provide editorial input.
