Unequal Enforcement Of The Equal Time Rule: Late Night, Talk Radio, And TheNews Interview Exemption

*Associate Professor and Cowles Fellow of Journalism, Law and Policy, Hubbard School of Journalism and Mass Communication, University of Minnesota. The authors would like to thank Elizabeth Gratton for her research support. Associate Professor, Diederich College of Communication, Marquette University, and affiliated faculty, Marquette University Law School.Show More

Introduction

It is rare for the head of a regulatory agency like the Federal Communications Commission (“FCC”) to emerge as a central figure in popular and political discourse. But in his short time as FCC chair, Brendan Carr—through his public criticism of television shows and networks,¹ 1.As an FCC commissioner, two months before becoming chair, Carr falsely accused Saturday Night Live of violating the law by including a cameo appearance by Democratic presidential nominee Kamala Harris. See Emma Colton, FCC Commissioner Rips NBC Over Harris’ Last-Minute SNL Appearance: ‘Plainly Designed to Evade’ the Rules, FOX News (Nov. 3, 2024, at 13:53 ET), https://www.foxnews.com/politics/fcc-commissioner-rips‌-nbc-over-harris-last-minute-snl-appearance-plainly-designed-evade-rules [https://perma.cc/‌57D5-EM63]. NBC offered equal time to Donald Trump, so there was no violation. Stephen Battaglio, Trump Campaign Gets Equal Time from NBC After Harris SNL Appearance, L.A. Times (Nov. 4, 2024, at 13:35 PT), https://www.latimes.com/entertainment-arts/busines‌s/story/2024-11-04/trump-campaign-gets-equal-time-from-nbc-after-harris-snl-appearance [https://perma.cc/5JBS-F3DV].Show More and his threats over entertainment programming² 2.After Jimmy Kimmel joked on air about the assassination of Charlie Kirk, Carr said, “we can do this the easy way or the hard way” while discussing potential regulatory actions against ABC. Benny Johnson, Kash Patel Testifying LIVE Now on Charlie Kirk Assassin | Dark Texts with Trans Boyfriend Released . . . , at 1:30:03 (YouTube, Sep. 17, 2025), https://www.youtube.com/watch?v=4dNxPINQdcs. Following Carr’s comments, ABC suspended Kimmel. John Koblin, Michael M. Grynbaum & Brooks Barnes, ABC Pulls Jimmy Kimmel Off Air for Charlie Kirk Comments After F.C.C. Pressure, N.Y. Times (Sep. 17, 2025), https://www.nytimes.com/2025/09/17/business/media/abc-jimmy-kimmel.html.Show More and news coverage³ 3.Carr threatened to revoke the licenses of broadcasters who aired false or “hoax[]” coverage of the war in Iran, echoing President Donald Trump’s call to target “[u]npatriotic” news organizations. Joseph Stepansky, Threats Over Iran War Bare Trump Efforts to Transform Free Speech: Experts, Al Jazeera (Mar. 23, 2026), https://www.aljazeera.com/ne‌ws/2026/3/23/threats-over-iran-war-bare-trump-efforts-to-transform-free-speech-experts [https://perma.cc/W44J-3FHS].Show More—has become one of the most controversial figures in government.

More consequential than Carr’s rhetoric are the policy decisions he has directed. One of those, the focus of this Essay, is the FCC’s public notice in early 2026⁴ 4.Fed. Commc’ns Comm’n, DA 26-68, FCC’s Media Bureau Provides Guidance on Political Equal Opportunities Requirement for Broadcast Television Stations (Jan. 21, 2026) [hereinafter 2026 Equal Time Notice], https://docs.fcc.gov/public/attachments/DA-26-68A1.‌pdf [https://perma.cc/KEG7-7L6L].Show More of a change to its interpretation of the Equal Opportunity Rules.⁵ 5.47 U.S.C. § 315. Part (a) outlines what is generally referred to as the Equal Time Rule while part (b) outlines rules regarding candidate advertising.Show More Under § 315(a) of the Communications Act, generally referred to as the Equal Time Rule, when legally qualified candidates for office appear in broadcast programming, the broadcaster must offer the same amount of time to opposing candidates.⁶ 6.Id. § 315(a).Show More But the statute exempts “bona fide news” appearances, including newscasts, news interviews, news documentaries, and news events.⁷ 7.Id. § 315(a)(1)–(4).Show More The FCC has historically interpreted the news interview exemption broadly to include programs like The Tonight Show and the old Howard Stern radio show.⁸ 8.See infra notes 68–72 and accompanying text.Show More

Despite this long-established interpretation, Carr criticized ABC’s daytime talk show The View, accusing it of violating the law by platforming Democratic candidates without offering equal time to Republicans.⁹ 9.Radhamely De Leon, FCC Head Warns It Could Be “Worthwhile” To “Look Into” Whether ‘The View’ Is Violating FCC Rules, The Decider (Sep. 19, 2025, at 10:54 ET), www.decider.com/2025/09/19/fcc-view-violating-rules [https://perma.cc/3A23-VUZX].Show More Then, on January 21, 2026, the Media Bureau released a public notice (hereinafter 2026 Equal Time Notice) asserting that it would no longer presume that late-night and daytime television talk shows qualify for the news interview exemption.¹⁰ 10.2026 Equal Time Notice, supra note 4, at 3–4.Show More Shortly thereafter, Carr acknowledged that the FCC had begun to formally investigate The View.¹¹ 11.Fed. Commc’ns Comm’n, February 2026 Open Commission Meeting, at 58:20 (YouTube, Feb. 18, 2026) [hereinafter FCC, February 2026 Meeting], https://www.youtube.‌com/watch?v=UW0Tsya97-o. In May, Disney and some of its local affiliates petitioned the FCC for a declaration that The View is a bona fide news interview program, and the FCC responded by opening up a public comment period ending July 6. Fed. Commc’ns Comm’n, Comment on Petition by Disney’s ABC Asking the FCC to Declare That The View Qualifies as a Bona Fide News Interview Program, MB Docket No. 26-124, DA 26-517 (May 22, 2026), https://docs.fcc.gov/public/attachments/DA-26-517A1.pdf [https://perma.cc/978G-Q‌37U]. If the FCC takes even 90 days to respond (a timeline it is not obligated to adhere to), this could leave the matter unresolved through Election Day.Show More Conspicuously, the 2026 Equal Time Notice makes no mention of broadcast radio, where conservative talk shows dominate and Republican candidates appear routinely.¹² 12.See infra Part III.Show More The notice warns against the platforming of candidates for “partisan purposes”¹³ 13.2026 Equal Time Notice, supra note 4, at 3.Show More but directs this and its other admonitions solely at broadcast television.

The controversy over the FCC’s new approach peaked after CBS lawyers told Late Show host Stephen Colbert on February 16, 2026, that he had to scrap a planned guest appearance by Democratic U.S. Senate candidate James Talarico, and that he could not mention the ban on the air.¹⁴ 14.The Late Show with Stephen Colbert, Why CBS Didn’t Broadcast Stephen Colbert’s Interview with James Talarico, at 01:34 (YouTube, Feb. 16, 2026), https://www.youtube.co‌m/watch?v=oh7DPSP65JA.Show More Colbert defied them in part by revealing to his audience what had transpired behind the scenes.¹⁵ 15.Id.Show More He then posted his interview with Talarico online,¹⁶ 16.See generally The Late Show with Stephen Colbert, Rep. James Talarico on Confronting Christian Nationalism, and the Strange Days in the Texas Legislature (YouTube, Feb. 17, 2026), https://www.youtube.com/watch?v=oiTJ7Pz_59A.Show More where the equal opportunities laws do not apply.¹⁷ 17.See 47 U.S.C. § 315(a)–(b) (imposing obligations solely on “licensee[s]” who allow candidates to appear on their “broadcasting station[s]”).Show More

Reaction to the Colbert incident was intense, with people from across the political spectrum suddenly debating about these obscure regulations that have been in force since the Radio Act of 1927¹⁸ 18.Radio Act of 1927, 47 U.S.C. §§ 81–119, repealed by, Communications Act of 1934, ch. 652, § 602(a), 48 Stat. 1102.Show More but have rarely captured much public attention. Public discussion about the rules has been intense but often uninformed, with some people confusing the equal opportunities provisions with the defunct Fairness Doctrine,¹⁹ 19.Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249–50 (1949) (requiring broadcasters to address issues of public significance and air competing points of view on those issues). The Fairness Doctrine was abandoned by the FCC as policy in Syracuse Peace Council, 2 FCC Rcd. 5043 (1987).Show More or conflating § 315(a), the equal time provisions, with § 315(b), which requires broadcasters to provide equal access and reduced rates for political advertising.²⁰ 20.47 U.S.C. § 315(b)(1)–(2).Show More Grounded debate on this issue is urgently needed.

This Essay seeks to contribute to the conversation in three ways. First, it presents the results of an empirical analysis of some prominent television and radio talk shows, testing some of the assumptions underlying the 2026 Equal Time Notice and Carr’s critiques. Second, it offers a critical analysis of the FCC’s equal time reversal, concluding that in addition to being bad policy built on false assumptions and imposed through flawed processes, it violates both the First Amendment and the anti-censorship provision of the Communications Act.²¹ 21.Id. § 326 (“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.”).Show More The final aim of the Essay is to provide some context for this debate by offering a snapshot history of the Equal Opportunity Rules and the FCC’s interpretation and application of them over time.

Although this Essay is about policy, not personality, they cannot easily be separated here. Carr takes direction from President Trump in ways that are unusual for an agency head, and Carr even scrubbed the FCC website of references to its status as an “independent agency.”²² 22.David Shepardson, FCC Deletes Reference to Agency Independence During US Senate Hearing, Reuters (Dec. 17, 2025, at 17:58 ET), https://www.reuters.com/business/media-tele‌com/fcc-deletes-reference-agency-independence-during-us-senate-hearing-2025-12-17 [https‌://perma.cc/BB9U-T2AN].Show More Carr also echoes President Trump’s pointed rhetoric, railing against the “fake news media,”²³ 23.FCC, February 2026 Meeting, supra note 11, at 56:45.Show More insulting individuals like “sleepy-eyed Chuck Todd,”²⁴ 24.PBS NewsHour, WATCH LIVE: FCC Chair Brendan Carr Speaks at CPAC, at 02:38 (YouTube, Mar. 27, 2026), https://www.youtube.com/watch?v=uP8r6oE2Y5M.Show More and accusing mainstream media of having “Trump derangement syndrome.”²⁵ 25.FCC, February 2026 Meeting, supra note 11, at 55:55.Show More On March 27, 2026, Carr told the audience at the CPAC Convention that Trump is taking on the fake media and he “is winning,”²⁶ 26.PBS NewsHour, supra note 24, at 02:30.Show More even though “we[]”²⁷ 27.Id. at 02:55 (emphasis added).Show More have not yet finished the mission. Carr then rattled off the victories: liberal hosts and reporters like Joy Reid, Chuck Todd, and Jim Acosta are no longer on the air; Democratic-leaning shows like The Late Show with Stephen Colbert have been cancelled; and funding for public media has been zeroed out.²⁸ 28.Id.Show More Carr also extolled the Paramount takeover of CBS and promised the crowd, “CNN is gonna have new ownership as well.”²⁹ 29.Id.Show More Carr’s public statements mirror his policy moves and the FCC’s enforcement actions, which have largely targeted liberal media while protecting conservative ones.³⁰ 30.For example, after outgoing FCC chair Jessica Rosenworcel dismissed several complaints against broadcast stations because they threatened the stations’ First Amendment rights, Carr reinstated the complaints, but only the ones targeting ABC, CBS, and NBC stations, not the ones targeting FOX affiliates. See Katie Kwasneski, FCC Investigations Under Trump Could Hurt Broadcasters, Gateway Journalism Rev. (Feb. 27, 2025), https://ga‌tewayjr.org/fcc-investigations-under-trump-could-hurt-broadcasters/ [https://perma.cc/3ZL4-‌2SKT].Show More To be clear, the new 2026 Equal Time Notice is defective, independent of Carr’s proclivities, but his comments and actions raise questions about his motives that are relevant to assessments of the policy’s legitimacy and constitutionality.³¹ 31.See infra notes 132–33 and accompanying text. It is also important to note that the FCC only has three sitting commissioners: Carr, fellow Republican Olivia Trusty, and Democrat Anna Gomez. The other two slots are vacant. See Leadership, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership [https://perma.cc/6BZF-DWGU] (last visited July 16, 2026). This gives Carr even more unchecked discretion, and he also personally directs the Media Bureau, which is driving much of this activity. Brendan Carr, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership/brendan-carr/staff [https://p‌erma.cc/7YBE-42SW] (last visited July 19, 2026).Show More

Part I of this Essay addresses the original rationale for the equal opportunities law and shows that—in part because of the broad scope of the bona fide news exceptions—enforcement has focused almost exclusively on appearances by candidates in entertainment programming under § 315(a), and on advertising access under § 315(b). Part II addresses the bona fide news exceptions, their origins, and how they have been applied over time. Part III outlines the results of the empirical analysis of candidate appearances on several daytime and late-night TV talk shows, and on some nationally syndicated and local talk radio shows. This research shows how common candidate appearances are on both broadcast TV and radio, and how stark the differences are, with Republicans getting significantly less attention than Democrats on TV talk shows, but with Democrats entirely absent from leading talk radio shows. Secondary analysis also shows that candidate interviews in all these formats are generally substantive, and there is no reason to remove any of these shows from the news interview exemption. Part IV critiques the FCC’s new enforcement notice, arguing that it is an arbitrary and capricious change that also violates the First Amendment.

1.  As an FCC commissioner, two months before becoming chair, Carr falsely accused Saturday Night Live of violating the law by including a cameo appearance by Democratic presidential nominee Kamala Harris. See Emma Colton, FCC Commissioner Rips NBC Over Harris’ Last-Minute SNL Appearance: ‘Plainly Designed to Evade’ the Rules, FOX News (Nov. 3, 2024, at 13:53 ET), https://www.foxnews.com/politics/fcc-commissioner-rips‌-nbc-over-harris-last-minute-snl-appearance-plainly-designed-evade-rules [https://perma.cc/‌57D5-EM63]. NBC offered equal time to Donald Trump, so there was no violation. Stephen Battaglio, Trump Campaign Gets Equal Time from NBC After Harris SNL Appearance, L.A. Times (Nov. 4, 2024, at 13:35 PT), https://www.latimes.com/entertainment-arts/busines‌s/story/2024-11-04/trump-campaign-gets-equal-time-from-nbc-after-harris-snl-appearance [https://perma.cc/5JBS-F3DV]. ↑
2.  After Jimmy Kimmel joked on air about the assassination of Charlie Kirk, Carr said, “we can do this the easy way or the hard way” while discussing potential regulatory actions against ABC. Benny Johnson, Kash Patel Testifying LIVE Now on Charlie Kirk Assassin | Dark Texts with Trans Boyfriend Released . . . , at 1:30:03 (YouTube, Sep. 17, 2025), https://www.youtube.com/watch?v=4dNxPINQdcs. Following Carr’s comments, ABC suspended Kimmel. John Koblin, Michael M. Grynbaum & Brooks Barnes, ABC Pulls Jimmy Kimmel Off Air for Charlie Kirk Comments After F.C.C. Pressure, N.Y. Times (Sep. 17, 2025), https://www.nytimes.com/2025/09/17/business/media/abc-jimmy-kimmel.html. ↑
3.  Carr threatened to revoke the licenses of broadcasters who aired false or “hoax[]” coverage of the war in Iran, echoing President Donald Trump’s call to target “[u]npatriotic” news organizations. Joseph Stepansky, Threats Over Iran War Bare Trump Efforts to Transform Free Speech: Experts, Al Jazeera (Mar. 23, 2026), https://www.aljazeera.com/ne‌ws/2026/3/23/threats-over-iran-war-bare-trump-efforts-to-transform-free-speech-experts [https://perma.cc/W44J-3FHS]. ↑
4.  Fed. Commc’ns Comm’n, DA 26-68, FCC’s Media Bureau Provides Guidance on Political Equal Opportunities Requirement for Broadcast Television Stations (Jan. 21, 2026) [hereinafter 2026 Equal Time Notice], https://docs.fcc.gov/public/attachments/DA-26-68A1.‌pdf [https://perma.cc/KEG7-7L6L]. ↑
5.  47 U.S.C. § 315. Part (a) outlines what is generally referred to as the Equal Time Rule while part (b) outlines rules regarding candidate advertising. ↑
6.  Id. § 315(a). ↑
7.  Id. § 315(a)(1)–(4). ↑
8.  See infra notes 68–72 and accompanying text. ↑
9.  Radhamely De Leon, FCC Head Warns It Could Be “Worthwhile” To “Look Into” Whether ‘The View’ Is Violating FCC Rules, The Decider (Sep. 19, 2025, at 10:54 ET), www.decider.com/2025/09/19/fcc-view-violating-rules [https://perma.cc/3A23-VUZX]. ↑
10.  2026 Equal Time Notice, supra note 4, at 3–4. ↑
11.  Fed. Commc’ns Comm’n, February 2026 Open Commission Meeting, at 58:20 (YouTube, Feb. 18, 2026) [hereinafter FCC, February 2026 Meeting], https://www.youtube.‌com/watch?v=UW0Tsya97-o. In May, Disney and some of its local affiliates petitioned the FCC for a declaration that The View is a bona fide news interview program, and the FCC responded by opening up a public comment period ending July 6. Fed. Commc’ns Comm’n, Comment on Petition by Disney’s ABC Asking the FCC to Declare That The View Qualifies as a Bona Fide News Interview Program, MB Docket No. 26-124, DA 26-517 (May 22, 2026), https://docs.fcc.gov/public/attachments/DA-26-517A1.pdf [https://perma.cc/978G-Q‌37U]. If the FCC takes even 90 days to respond (a timeline it is not obligated to adhere to), this could leave the matter unresolved through Election Day. ↑
12.  See infra Part III. ↑
13.  2026 Equal Time Notice, supra note 4, at 3. ↑
14.  The Late Show with Stephen Colbert, Why CBS Didn’t Broadcast Stephen Colbert’s Interview with James Talarico, at 01:34 (YouTube, Feb. 16, 2026), https://www.youtube.co‌m/watch?v=oh7DPSP65JA. ↑
15.  Id. ↑
16.  See generally The Late Show with Stephen Colbert, Rep. James Talarico on Confronting Christian Nationalism, and the Strange Days in the Texas Legislature (YouTube, Feb. 17, 2026), https://www.youtube.com/watch?v=oiTJ7Pz_59A. ↑
17.  See 47 U.S.C. § 315(a)–(b) (imposing obligations solely on “licensee[s]” who allow candidates to appear on their “broadcasting station[s]”). ↑
18.  Radio Act of 1927, 47 U.S.C. §§ 81–119, repealed by, Communications Act of 1934, ch. 652, § 602(a), 48 Stat. 1102. ↑
19.  Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249–50 (1949) (requiring broadcasters to address issues of public significance and air competing points of view on those issues). The Fairness Doctrine was abandoned by the FCC as policy in Syracuse Peace Council, 2 FCC Rcd. 5043 (1987). ↑
20.  47 U.S.C. § 315(b)(1)–(2). ↑
21.  Id. § 326 (“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.”). ↑
22.  David Shepardson, FCC Deletes Reference to Agency Independence During US Senate Hearing, Reuters (Dec. 17, 2025, at 17:58 ET), https://www.reuters.com/business/media-tele‌com/fcc-deletes-reference-agency-independence-during-us-senate-hearing-2025-12-17 [https‌://perma.cc/BB9U-T2AN]. ↑
23.  FCC, February 2026 Meeting, supra note 11, at 56:45. ↑
24.  PBS NewsHour, WATCH LIVE: FCC Chair Brendan Carr Speaks at CPAC, at 02:38 (YouTube, Mar. 27, 2026), https://www.youtube.com/watch?v=uP8r6oE2Y5M. ↑
25.  FCC, February 2026 Meeting, supra note 11, at 55:55. ↑
26.  PBS NewsHour, supra note 24, at 02:30. ↑
27.  Id. at 02:55 (emphasis added). ↑
28.  Id. ↑
29.  Id. ↑
30.  For example, after outgoing FCC chair Jessica Rosenworcel dismissed several complaints against broadcast stations because they threatened the stations’ First Amendment rights, Carr reinstated the complaints, but only the ones targeting ABC, CBS, and NBC stations, not the ones targeting FOX affiliates. See Katie Kwasneski, FCC Investigations Under Trump Could Hurt Broadcasters, Gateway Journalism Rev. (Feb. 27, 2025), https://ga‌tewayjr.org/fcc-investigations-under-trump-could-hurt-broadcasters/ [https://perma.cc/3ZL4-‌2SKT]. ↑

31.  See infra notes 132–33 and accompanying text. It is also important to note that the FCC only has three sitting commissioners: Carr, fellow Republican Olivia Trusty, and Democrat Anna Gomez. The other two slots are vacant. See Leadership, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership [https://perma.cc/6BZF-DWGU] (last visited July 16, 2026). This gives Carr even more unchecked discretion, and he also personally directs the Media Bureau, which is driving much of this activity. Brendan Carr, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership/brendan-carr/staff [https://p‌erma.cc/7YBE-42SW] (last visited July 19, 2026). ↑