Abolish the FCC's Equal Time Rule Before the Next Election
The decades-old regulation imposes burdens that no other media outlets are subject to.
It's hard to imagine that one of the animating issues in the final days of the 2024 presidential campaign would be a decades-old regulation enforced by the Federal Communications Commission (FCC). But that makes this the perfect time to talk about abolishing the equal time rule.
As Reason reported last month, the Constitution Party's Randall Terry used his presidential campaign to weaponize FCC regulations and force broadcasters to air his anti-abortion ads. Under the "equal opportunities requirement"—a federal regulation more often called the equal time rule—if a candidate for public office appears on a licensed broadcast station, the station must "afford equal opportunities" to all other candidates for the same office, with exceptions for "bona fide" news coverage.
Although Terry doesn't seem to be genuinely competing for votes, his status as a "legally qualified candidate" ensured that licensed broadcasters must air his ads, so long as he can pay the same rate as the other candidates, and that the broadcasters "shall have no power of censorship over the material broadcast."
Closer to election day, another equal time controversy reared its head when Vice President Kamala Harris, the Democratic presidential nominee, made a cameo appearance on the November 2 episode of NBC's Saturday Night Live.
"This is a clear and blatant effort to evade the FCC's Equal Time rule," Republican FCC Commissioner Brendan Carr posted on X. "The purpose of the rule is to avoid exactly this type of biased and partisan conduct - a licensed broadcaster using the public airwaves to exert its influence for one candidate on the eve of an election."
As Carr notes, the FCC issues broadcast licenses that allow TV and radio stations to transmit over certain public frequencies. "In exchange for obtaining a valuable license to operate a broadcast station using the public airwaves, each radio and television licensee is required by law to operate its station in the 'public interest, convenience and necessity,'" says the FCC. "Station licensees, as the trustees of the public's airwaves, must use the broadcast medium to serve the public interest."
NBC alone has dozens of local affiliate stations. The FCC regulates the affiliates, not the networks themselves or cable channels: The affiliates broadcast the networks' content, and cable does not transmit over public airwaves.
On Sunday afternoon, Carr posted an FCC filing in which NBC acknowledged that Harris "appeared without charge" on the Saturday Night Live "for a total period of 1:30 (one minute and 30 seconds)." Theoretically, then, all other "legally qualified" presidential candidates could then be entitled to 90 seconds of free NBC airtime. (To compensate, NBC ran a 60-second ad for former President Donald Trump twice on Sunday, once during NASCAR coverage and again during Sunday Night Football.)
SNL also aired a sketch later in Saturday's broadcast, in which a game show contestant proclaims 2024 "the most important election in American history" in which "democracy is on the line"—and then, despite having said the exact same things about the 2016 election, struggles to identify Sen. Tim Kaine (D–Va.), the Democrats' 2016 vice presidential candidate.
The senator appeared in the sketch as himself, but he is also up for reelection, running up against another potential equal time violation. Carr posted another FCC filing on Sunday night, in which NBC acknowledged that Kaine "appeared without charge" on the broadcast "for a total period of 1:55 (one minute and 55 seconds)." NBC then agreed to air four of Republican challenger Hung Cao's ads during its Monday night prime-time broadcasts in Virginia, totaling two minutes of free airtime.
Carr told Fox News host Maria Bartiromo on Monday that "we need to keep every single remedy on the table" to address such potential violations, up to and including "license revocation if we find that it's egregious."
On the contrary, this whole dust-up should provide all the evidence we need that the equal time rule, like the Fairness Doctrine before it, should be relegated to the dustbin of history.
The equal time rule originated in the Communications Act of 1934 and has been amended at various times since. Like radio stations, the major TV networks were subjected to additional scrutiny because of the government-enforced oligopoly they effectively held over their particular forms of transmission. Similar requirements for non-broadcast forms of media have been found unconstitutional: In 1974's Miami Herald Publishing Co. v. Tornillo, the U.S. Supreme Court unanimously overturned a Florida statute requiring publishers to print a reply to any political editorial or personal criticism. "The clear implication has been that any such a compulsion to publish that which 'reason tells them should not be published' is unconstitutional," wrote Chief Justice Warren Burger.
Today the broadcast networks no longer have a stranglehold on what people can watch. Last year, according to Nielsen, the combined share of TV viewership that took place on over-the-air broadcasts or cable fell below 50 percent for the first time, as streaming skyrocketed. Only 20 percent took place on conventional broadcast television—meaning 80 percent of all TV viewership was not subject to any FCC content regulation, much less equal time rules.
In practice, equal time rules create burdensome requirements, as broadcasters are forced to account for every single second a candidate appears onscreen and offer similar time to any other competitors who request it. But the rules are applied with little apparent internal logic. When Arnold Schwarzenegger announced his campaign for governor on The Tonight Show in 2003, for example, Democratic candidate Phil Angelides requested equal time. "We find that the news interview portions of 'The Tonight Show with Jay Leno' meet the criteria for exemption as a bona fide news interview," the FCC later determined, and Angelides' request was rejected.
Saturday Night Live itself has run into this issue before. Trump hosted an entire episode in October 2015. Multiple Republican primary challengers then requested airtime equal to the 12 minutes Trump spent onscreen during his hosting gig; The New York Times reported in November 2015 that NBC had agreed to grant free airtime to John Kasich, James Gilmore, Lindsey Graham, and Mike Huckabee, while George Pataki was still negotiating terms. Considering that of those participants, only Kasich's campaign survived to Super Tuesday, the equal time rule clearly made little difference.
Similarly, Al Sharpton hosted the show in December 2003 while he was running in the Democratic primary. All four of Iowa's NBC affiliates refused to air the episode over fear of equal time rules. Democratic competitor Joe Lieberman's campaign requested equal airtime in certain markets, leading stations in Missouri and California to reair a Lieberman town hall.
When the equal time rule was drafted, a far more limited number of frequencies were available across the broadcast spectrum. But that world no longer exists. We've reached the point where nearly 17 percent of American adults get their news from TikTok.
The equal time rule imposes burdens on one group of broadcasters while sparing their cable or streaming competitors. Any public benefit that its drafters intended no longer meaningfully exists. Let's abolish it before the next election cycle begins.
