When Stephen Colbert announced that CBS restricted him from airing an interview with a Democratic candidate, it set off a range of reactions: Some argued that it reflected Trump’s efforts to censor late-night content; others that it was merely enforcement of a law on the books.
Even Colbert and CBS appear to have different versions of just what happened, leading to the Late Show host shifting a planned interview with Texas State Rep. James Talarico from broadcast to YouTube. Talarico is among the candidates running for U.S. Senate in the Lone Star state.
At the center of the flare-up is the FCC’s Equal Opportunities Rule, more commonly referred to as the Equal Time Rule. It requires that when broadcasters feature a legally qualified political candidate on their airwaves, they have to provide time to rivals if it is requested. In other words, it doesn’t restrict broadcasters from featuring candidates; they just may face offering up valuable time to a number of other candidates.
News programming and news events are exempt from the rules and, up until recently, daytime and late- night talk shows like Colbert and ABC’s The View have assumed that they, too, were not on the hook to provide equal time when they featured candidates.
But last month, the FCC under Chairman Brendan Carr issued guidance warning TV talk shows that they should not assume they are immune from the rule, casting doubt on their ability to feature candidates without falling under the regulation. That meant that had the Talarico interviewed aired on the broadcast network, CBS stations in Texas may have been obligated to provide time to his rivals in the upcoming Democratic primary, Rep. Jasmine Crockett (D-TX) and Ahmad Hassan.
Among Democrats like FCC Commissioner Anna Gomez, the latest guidance was seen as a crackdown on programming hated by Donald Trump, who appointed Carr to lead the agency.
Here’s what to keep in mind as the midterms approach, and networks and stations weigh featuring more candidates on their airwaves.
The equal time rule: The origins of the law date almost a century ago, to the 1920s, out of concerns that radio and later TV could influence the outcome of elections by spotlighting a preferred candidate on the airwaves. In recent decades, broadcasting has certainly waned in influence, but political campaigns still depend on exposure in local markets.
What the rule is not: The equal time provision is often mistaken for the Fairness Doctrine, which required that broadcasters present major issues in a way that presented differing viewpoints. It was abandoned in 1987, freeing up broadcasters to present figures like Rush Limbaugh and other conservative talk radio hosts or, more recently, a late-night TV landscape that leans left and often presents biting humor at the expense of Trump.
How equal time has been applied: Over the years, the equal time rule has led to some interesting circumstances. When Ronald Reagan ran for president in 1980, stations refrained from rerunning some of his movies, out of concerns that they would be on the hook to provide time to other candidates. In the 1990s, the FCC narrowed the scope of programming that could trigger equal time, putting less emphasis on the past work of entertainers-turned-politicians and more on appearances made in the context of a campaign.
One of the highest profile recent cases of the equal time rule being invoked came in 2015, when Donald Trump hosted Saturday Night Live. Some of his GOP rivals for the nomination got airtime, although their appearances were on local NBC affiliates in markets where there were upcoming primaries, not nationwide.
Another factor: The rule requires “comparable time and placement,” not that candidates get identical treatment. So figures like 2016 candidates John Kasich and Lindsey Graham didn’t get their own SNL hosting gigs, just the opportunity to make their case to voters in the Saturday evening timeslot.
After Kamala Harris made a cameo on Saturday Night Live the weekend before the 2024 election, NBC provided the Trump campaign with airtime during sports programming the next day. While the Trump campaign appeared to be fine with the placement, Carr decried the appearance as an effort to evade the Equal Time Rule.
Broadcasters are required to file a notice with the FCC when a candidate appears, but they do not have to proactively provide airtime. The requirements kick in upon request.
Who qualifies: It can depend on timing. Different states have different rules on when a person is a “legally qualified candidate,” but the FCC says that a person has to have declared an intention to run, qualifies under state or federal law to hold the office and qualifies for a place on the ballot.
How talk shows are impacted: The View, Colbert and other late night and daytime talk shows have routinely featured political candidates over the past two decades, as campaigns seek out more casual conversations and perhaps friendlier territory than can be found on many hard news shows. (That’s not always the case, as one of Harris’ biggest gaffes of her presidential run occurred on The View.)
The precedent most cited was from 2006, when the FCC ruled that The Tonight Show with Jay Leno was exempt from equal time after it featured California Governor Arnold Schwarzenegger as a guest. His Democratic rival for reelection, Phil Angelides, had sought equal time. But the agency already was moving toward a more expansive definition of what programming was exempt, having already had ruled that shows like Donahue didn’t fall under the regulation.
But things changed in January, when the FCC’s Media Bureau issued new guidance, declaring that the agency “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 also said that a program “motivated by partisan purposes” would not be exempt, and that stations should seek a declaratory ruling from the FCC to see if they qualify.
It’s unclear what would constitute a “partisan motivation,” but among the factors that the FCC said it considers are whether a program is regularly scheduled, whether a show is controlled by an independent broadcaster and producer, and whether “decisions on the content, participants, and format are based on newsworthiness, rather than partisan purposes, such as an intention to advance or harm an individual’s candidacy.”
Since the FCC’s latest guidance, Fox News reported that the FCC has opened an investigation into The View after it featured Talarico as a guest. Although the show had also featured Crockett, Fox News reported that ABC did not make an equal time filing. The network has not commented.
How radio is affected: Carr directed the latest FCC guidance at TV talk shows, but he acknowledged that it applies to broadcast radio as well. That has raised concerns about figures like Sean Hannity, whose syndicated program is among the top shows in a format dominated by conservatives. Texas Attorney General Ken Paxton, running in the Republican primary for the U.S. Senate, appeared on Hannity’s radio show in December.
Michael Harrison, publisher of Talkers magazine, which covers talk radio, said recently, “When broadcasters are unsure of the guidelines and consequences of booking political candidates — or simply spokespeople — they tend to avoid engaging in that kind of programming to a great extent. We learned during the days of the Fairness Doctrine how that kind of regulation chills political speech on the airwaves as opposed to encouraging it.”
Going to YouTube: There’s a reason that Colbert’s Talarico interview was posted to YouTube, beyond it being a major platform: Streaming, along with cable and satellite, are outside of the FCC’s oversight. Where the FCC has jurisdiction and where it does not has been a source of endless confusion, particularly since the lines blur between distribution models. YouTube TV, for instance, is a streaming service, but it offers a combination of channels that originate as broadcast or cable outlets.
Colbert’s interview with Talarico has, as of Wednesday, generated 3 million views on YouTube, far more than his average broadcast viewership.
The First Amendment: In the wake of what happened with the Talarico interview, there was plenty of criticism directed at CBS and the FCC, as well as what it means for free speech. Talarico called it a GOP form of “cancel culture.”
Bob Corn-Revere, chief counsel of the Foundation for Individual Rights and Expression, said in a statement, “Candidate interviews have long been exempt from ‘equal time’ rules for good reason. It would be wrong if a Democratic administration demanded conservative talk radio hosts give equal airtime when they interview candidates, and it’s wrong for the Trump administration to demand the same of late night talk show hosts.”
While some have argued that there is a First Amendment case to be made against how the equal time rule is applied, a major challenge likely would take the FCC issuing a sanction against a broadcaster — and a media outlet willing to put up a fight.