Welcome to 2026! As this is an election year, all thoughts have already turned to the upcoming November mid-terms – where President Donald Trump has fretted and fumed that Republicans are likely to do poorly. Trump – and fellow South Park star and Chairman of the “actually-independent-but-I-don’t-think-so” Federal Communications Commission Brendan Carr – have made no secret that they think that late night comedy shows and certain daytime “magazine” shows like The View are mean and unfair to the President. Carr has accused a number of these shows as being virtual arms of the Democratic Party and made various threats and investigations sincere and totally unrelated efforts to make sure broadcasters meet their public interest obligations. But as even Carr says (or at least used to say) that the FCC doesn’t engage in censorship, and since his threat joke to force suggesting ABC and its affiliates cancel Jimmy Kimmel backfired badly, and Disney doesn’t have any convenient mergers in front of the FCC that need a approval, what can the FCC do to silence the President’s critics ensure more fairness?
Enter the “equal opportunity” rule (also known as the equal time rule). Like so many laws in this Administration, it actually exists for good reasons, but like all laws can be weaponized in the wrong hands. Or, in the words of Former Brazilian President Getulio Vargas (or Peruvian General Oscar Benevidos, depending on which internet source you like), “For my friends, everything. For my enemies, the law.” Last week, Chairman Carr (via the Media Bureau) announced that broadcasters could no longer rely on the 20+ years of precedent interpreting talk shows and other non-traditional news shows as “bona fide newscasts” conducting “bona fide news interviews” exempt from equal opportunity rule under the relevant statute (47 U.S.C. § 315). While the new guidance took particular aim at talk shows, it included a not so subtle warning that even traditional news shows like “ABC News” or Sunday talk shows might not qualify if they have “an intention to advance or harm an individual’s candidacy.”
Commissioner Anna Gomez once again called this out for what it is: an effort to intimidate network broadcasters to stop “Trump disapproved” programming. But it may also provide more political cover for the large group owners, like Sinclair and Nexstar, to preempt programming on nationally syndicated shows. Carr has stressed repeatedly that “local” (and I used the word advisedly for stations controlled by giant corporate owners making centralized decisions) have the right to preempt programming to protect their “local community” (when that preemption coincidentally matches Trump’s preferences).
Below, I want to run through a brief history of the equal opportunity rules and how they work (you can find the FCC resource page here, and the official FCC primer on political broadcasting rules from 1978 here). As discussed below, the rules are fairly straightforward and critically important. On the one hand, local broadcasters can have enormous influence over elections by promoting one candidate and blacking out coverage of others. On the other hand, we depend on local broadcasters to provide us with news about candidates that lets people make informed decisions about elections. So the FCC rules strike a balance between imposing obligations on broadcasters while encouraging, in the words of the statute, “bona fide” news shows and news interviews.
But we have already seen Chairman Carr revive a properly dismissed complaint over presidential candidate Kamala Harris’s appearance on Saturday Night Live to use as a cudgel against NBC. So as with too many things these days, we can expect to see a sensible law politicized under the rubric of law enforcement. I also expect affiliates that do have deals in front of the FCC or otherwise want to placate the Administration will use this as an excuse to preempt Trump-disapproved political programming (even where the equal opportunity rule wouldn’t apply).
What Is the Equal Opportunity Rule?
The equal opportunity rule, often called the equal time rule, requires that when any broadcaster, cablecaster, Direct Broadcast Satellite (DBS) provider, or satellite radio provider (Sirius XM) allows a “qualified political candidate” to “use” their facility, they must allow all other “qualified candidates” for the same political office an equal opportunity to use the facility. For purposes of the statute, as defined by the FCC, a candidate “uses” a facility either by buying advertising (which is then subject to a separate set of rules to ensure fairness), or by making an appearance on something broadcast – even for a short period of time and even on matters unrelated to the election. A “qualified candidate” is anyone who has completed the relevant state requirement (e.g., gets some number of signatures on a petition, files an application and pays the required fees, won the primary of a party) to qualify as a candidate for the relevant office.
Wait, This Applies to Cable Too?
Yes, contrary to what a number of people think, including, annoyingly, the Media Bureau which gets this wrong in its recent order, this is not a “public interest obligation” for using spectrum. It’s a conditional right of access (like leased access for cable) that members of Congress gave themselves (and other candidates) because they recognized the power of mass media to shape elections. Section 315(c) explicitly says that the term “broadcast station” refers to a “community antenna TV” system and that “licensee” refers to the operator of a CATV system. CATV is an old name for cable television. Section 335(a) applies the same rule to DBS, and the FCC applied the same rule to satellite radio when it created the rules for satellite radio in 1995.
So We Can File Complaints Against Fox News? Sounds Like They Really Messed Up!
Unfortunately, no. The FCC has consistently interpreted Section 315(c) since it was added as applying only to “local origination cablecasting,” meaning locally originated programming and not the national cable channels that cable operators distribute as part of their bundle (like Fox News or MSNBC MSNow). Some cable operators do have local programming, such as NY1 in New York City. In addition, cable systems have a capacity to take local advertising and insert it into their main programming streams. If a cable system sells ad time to a qualified political candidate – whether on local programming or as local insertion into a non-locally originated programming stream – Section 315 applies.
Of course, one can file a complaint against the FCC’s interpretation, thanks to recent Supreme Court cases that both eliminated the deference to agency interpretations and required district courts to determine the best meaning of the statute in “as applied” challenges even if an appellate court has already affirmed the FCC’s rules. But for now, application of the equal opportunity rule for cable applies only to locally originated programming.
To keep this focused on the point, I’m going to limit discussion to broadcasting licensees. I’ll also add some links at the end to some online guides.
Fine. How Does This Work For Broadcasters?
First, someone has to be a “qualified candidate,” which means they have done whatever is required in the state to be an official candidate for either a primary or election to office. (This can be either for a local, state or federal office.) If a licensee allows a qualified candidate to appear on their channel – whether as an ad or as part of a program, and the appearance does not fall into one of the statutory exceptions – the station has to put a notice in their political file (a thing the FCC requires them to maintain). An opposing candidate for the same office has 7 days to request an equal opportunity to use the broadcast facility. “Equal opportunity” means that the candidate gets not just the same amount of time, but in a time slot that reasonable people would consider equal.
I will illustrate this with Candidate for Governor of Colorado Phil Weiser. Weiser is the current Attorney General of Colorado, and has filed all the necessary paperwork to run in the Democratic Primary to be the Democratic candidate for governor. This makes Weiser a “qualified candidate.” But because we haven’t had the primary yet, Weiser is only a candidate in the primary. So while there are (according to this article) 41 candidates trying to be governor of Colorado, there are only 5 other candidates in the Democratic primary (including current Senator for Colorado Michael Bennet). If a broadcaster gives Weiser a non-exempt use, the right to equal opportunity only applies to the other 5 qualified candidates for the same “office” – in this case to be the Democratic candidate for governor of Colorado – not all 41 candidates running for governor. On the other hand, the right applies to all five Democratic primary candidates, and cannot be limited to the current leaders Weiser and Bennet.
You Keep Referring to Exemptions. What are They?
In 1959, Congress became concerned that broadcasters were not covering newsworthy things about candidates, or conducting interviews and other things that might actually inform people about candidates, because of the equal opportunity rule. Congress amended Section 315 to create four clear exemptions: (a) a bona fide newscast; (b) a bona fide news interview; (c) a bona fide news documentary; and (d) on the spot coverage of bona fide news events.
You will note the phrase “bona fide” occurs in all of these, which means the FCC has to decide what are actual “newscasts,” “new interviews,” “news documentaries,” and “on the spot coverage of news events” that qualify for the exemption.
This is Where the Fun Happens, Isn’t it?
Yup. Traditionally, the FCC had a bunch of criteria that it established by precedent and through issuing advisory opinions. These turn on things like whether the news program is regularly scheduled, and whether the interview is controlled by the broadcaster or the candidate. For example, does the broadcaster pick the questions, and is the broadcaster the one who edits the program?
When Congress first changed the statute to add the exemptions, the FCC was fairly strict about what constituted either a “news program” or a “news interview.” This is the 1960 “Jack Paar” decision that the Media Bureau guidance (and subsequently Chairman Carr defending the guidance) refer to. In an early decision, the FCC held that the Tonight Show in 1960 was not a news show, and an interview on the Tonight Show was not a news interview. In 1960, the FCC decided the Tonight Show was entertainment and an appearance on the Tonight Show triggered the equal time rule.
But times change, as do the viewing habits of Americans and where you get your news. Starting in the Mid-1980s, the FCC began to loosen its definition of news show and news interview based on the trend of Americans increasingly preferring “infotainment” formats that combined news and entertainment. In what many consider a landmark decision in 1984, the FCC held that the Phil Donahue show – a daytime interview show – qualified as a bona fide news show and that interviews on the show were bona fide news interviews if they met the same criteria as those on traditional news shows. The FCC rapidly broadened the range of shows to include mixed entertainment/news programs such as “Good Morning America,” Sally Jessy Raphael (much more “tabloid” style), and Howard Stern (back when he was a “shock jock” on broadcast).
As the FCC explained, the fact that a program included segments designed solely for entertainment did not automatically disqualify an appearance by a candidate from the exemption provided (a) the candidate was selected by the show for “newsworthiness;” (b) the show was regularly scheduled (and therefore not a campaign event); and (c) the show controlled the interview questions and editing. In other words, as the FCC found, both the nature of broadcast programming and the expectations of viewers had changed since 1960. Indeed, Congress left the definition of news show and news interview to the discretion of the FCC precisely because Congress recognized that these things don’t fall into neat categories and that where and how people get their news changes over time.
The FCC’s Jay Leno decision (that the Bureau and Chairman Carr cite as contradicting the 1960 Jack Paar decision) was therefore merely one of a long line of FCC decisions expanding the definition of “news interview” and “news show” (this was about the time, by the way, when Jon Stewart and the Daily Show were being hailed as the “most trusted name in news”). True, it was the first time it applied the criteria to a late night comedy show. But it is hard to see how airing on TV at night rather than in the afternoon, or being broadcast on radio, makes a material difference.
So to be clear, it’s not like the Leno decision fell out of a clear blue sky (or from some nefarious plot by the Bush Administration to promote Schwarzenegger’s candidacy). It happened as part of a lengthy process by which the FCC recognized that shows other than traditional news shows offered viewers genuine news interviews. This reflected the general concerns and purpose around Section 315 and the exemptions added in 1959. On the one hand, members of Congress were acutely aware of how a broadcaster could exercise mammoth influence over an election by saturating the airwaves with praise for one candidate while shutting out rivals entirely. On the other hand, we actually want broadcasters to report news and give us in depth analysis of candidates rather than just “horse race coverage.” Section 315 and the news exemptions strike an important balance – as long as we have confidence they will be applied fairly.
So What Did Carr Change?
As with most of what Carr has done to weaponize the FCC, he didn’t really change anything so much as change how the FCC enforces existing law. We have seen this pattern throughout the Trump Administration. But administrative agencies like the FCC tend to have more discretion than the Department of Justice (which faces the burden of proof and is subject to review by a Grand jury to get an indictment).
The new Media Bureau guidance states that the Jay Leno decision did not create a general exemption for all late night comedy shows. True. But the guidance ignores all of the other precedent that creates settled law as to how the FCC evaluates eligibility for an exemption on which broadcast shows have relied. Rather, the guidance stresses that these are particularized and individualized decisions while implying that the Leno decision was an aberration and in conflict with previous precedent rather than the culmination of about 20 years of evolving precedent. Even more sinister, the guidance repeats several times that even ordinary news programs may not qualify for exemption if they are designed to “advance the candidacy” of a particular individual.
Given the open hostility shown by Trump (and Carr) to shows such as The View and Jimmy Kimmel, no one had any trouble guessing who the new guidance targeted. As is often the case, the fact that a broadcaster would ultimately win if it ever got to court matters less than the pain selective enforcement causes.
But Is This Really A Big Deal? Just Interview More People.
One would think that this shouldn’t be a big deal. If you interview someone running for office, offer a spot to a competitor. There are, however, two problems.
First, Carr has already proven that actually complying with the rules doesn’t matter. Back in November 2024, an organization called Center for American Rights (CAR) filed a complaint against the NBC-owned affiliate in NYC for violation of the equal time rule because Saturday Night Live featured a sketch with Presidential candidate Kamala Harris. Another sketch featured Senator Tim Kaine, who was running for reelection against a Republican Hung Cao. The Media Bureau dismissed the complaint in part because NBC followed the rules. They put a notice in their political files and cut a deal with both the Trump campaign and the Cao campaign to give them appearances they considered equal opportunities to reach audiences. (Cao’s appearances were limited to Virginia, since equal opportunity only applies where relevant voters actually live.)
Nevertheless, immediately after Carr took over as Chair, the Media Bureau revoked the dismissal order, finding: “the previous order was issued prematurely based on an insufficient investigatory record for the station-specific conduct at issue.” Or, in other words, it doesn’t matter whether you actually obey the law or not.
Second, complying with the equal opportunity rule can be something of a problem when there are more than two candidates running. As noted above in the Phil Weiser example, if for some reason an appearance by Weiser didn’t qualify, the broadcaster would need to provide the same amount of time to the five other candidates in the Democratic primary (assuming they requested it within the seven day time period). That’s a lot of guest slots.
Finally, although we are moving into a mid-term election and therefore do not have national candidates, I expect that large group owners like Nexstar and Sinclair that rushed to preempt Kimmel at Carr’s behest and tried to keep preempting him after ABC brought him back, will use this as an excuse to preempt Trump disapproved programming. Even if the stations in question are outside the viewing area of relevant voters, I expect the group owners will announce they don’t want to take chances and will cite the new Media Bureau guidance.
So What Happens Now?
It’s hard to guess how networks will respond. The question isn’t really whether the network would ultimately win in court, but how much hassle the network will endure rather than take the easy way and just avoid the conflict?
Carr’s targeting of Jimmy Kimmel generated major backlash because his use of the FCC regulatory threat to silence disfavored speech was so obvious. But who can say why a TV show chooses a particular guest for an interview? The behind-the-scenes nature of the decisions makes the likelihood of backlash much smaller. You will still see interviews of political people on late night shows and daytime news magazines. The question is whether any of them will be running for office during the mid-terms. It also remains to be seen whether Carr will invoke this new guidance against even the most conventional news programming on the grounds that they are “designed for the explicit advantage of the candidate.”
This will, of course, have the exact opposite effect that Congress intended when it created the Section 315 news exemptions. At best it will discourage coverage. At worst, it will tell broadcasters the fix is in and that appearances by Trump-friendly candidates will receive exemptions while appearances by Trump-disapproved candidates will not. That is what weaponization of the FCC is all about. “For my friends, everything. For my enemies, the law.” Or, perhaps more fittingly, “equal opportunities, unequal enforcement.”