ABC Challenges FCC Order on The View's Equal Time Exemption

ABC filed a petition with the FCC on Friday stating that an order directing its Houston station to seek formal confirmation of The View's exemption from the equal opportunities rule is inconsistent with the First Amendment. The petition, filed by attorney Paul Clement, argues that the FCC's actions threaten to upend decades of settled law and practice.

The View has broadcast under a bona fide news exemption granted more than 20 years ago, consistent with longstanding interpretations designed to minimize First Amendment problems inherent in the equal time regime. Under 47 USC 315, a station that gives airtime to a legally qualified candidate for public office must afford equal opportunities to all other candidates for that office.

Congress added a bona fide news exemption in 1959 after recognizing that universal application would have a crippling impact on news coverage. The exemption applies to regularly scheduled programs when content is controlled by producers and decisions are based on newsworthiness.

Since 1984 the FCC has extended the bona fide news interview exemption to programs including Phil Donahue's show, Geraldo, The Jerry Springer Show, The Howard Stern Show and The Tonight Show. The View received the exemption in 2002.

January the FCC's Media Bureau issued guidance stating that it had not been presented with evidence that the interview portion of any late night or daytime television talk show currently on air would qualify for the exemption. The notice warned that a program motivated by partisan purposes would not be entitled to an exemption.

He added at a press conference that if a program is fake news it will not qualify for the bona fide news exception. At the end of March the FCC ordered KTRK, the ABC-owned station in Houston, to file a petition for declaratory ruling regarding The View.

The order followed the show's February 2 interview with James Talarico, who later won the Democratic nomination in Texas's U.S. Senate race.

Clement stated that the equal time rule itself raises profound First Amendment concerns, a problem that will be aggravated if the FCC reverses its longstanding policy of exempting talk shows like The View. He noted that the Supreme Court's 1969 rationale in Red Lion Broadcasting v.

FCC rested on spectrum scarcity that no longer exists in an era of abundant media options including podcasts, cable, social media and streaming services. The petition argues that at a minimum the equal opportunities rule could not survive constitutional scrutiny without the kind of robust bona fide news exemption the commission has applied for decades.

Clement pointed out that the FCC itself abandoned the Fairness Doctrine in 1987 after concluding it inhibited the presentation of controversial issues and created opportunities for government intimidation of broadcasters. The FCC chairman has suggested that the agency has authority to intervene when broadcasters fall short of operating in the public interest.