The “Why Not Talk Radio?” Argument Gets the Law Wrong

A letter yesterday from a number of former ABC News journalists repeats a tired talking point from the Left in today’s battles at the FCC: that Chairman Carr is treating talk radio differently than television for ideological reasons.

It’s a point that’s been raised many times before, most prominently in a Politico story a few months ago warning that Democrats may weaponize the FCC against talk radio in the future (I think Democrats weaponized the FCC in the past, such that they didn’t need the recent public notice on equal time to suddenly spark their blood lust for when they return to power. Nor do I think fear of Democratic weaponization is a good reason to not enforce the best reading of the law).

More basically, the equal-time rule applies the same to radio as well as television stations. The FCC’s recent Public Notice appropriately focused on daytime and late-night television programs because the law in that area required clarification. In response, many have asked, like the former ABC journalists, “Why not the same rules for ‘conservative talk radio?’”

The short answer is that the same rules do apply to talk radio. The equal time statute does not distinguish between types of broadcasters, radio versus television. So it should be no surprise that the Commission’s own precedent also does not distinguish and provides helpful clarity here.

The Commission has recognized that an entertainment or variety program on talk radio, like a drive-time morning show, is not exempt from the equal time rule. Notice of Apparently Liability to WERC, 7 FCC Rcd 6537, 6537 (MBB 1992) (accepting stipulation “that WERC’s morning talk program is not a news program exempt from Section 315”), aff’d 9 FCC Rcd 228, 229 (MBB 1994).

On the other hand, a news program on talk radio that interviews “members of Congress and the state legislature, scholars, candidates for various offices, community leaders, and journalists” to discuss public issues is exempt as long as “it selects newsworthy topics and interviewee participants based on its good faith journalistic judgment and not on an intention to further any candidacy.” In re Request of the Pacifica Fdn., 9 FCC Rcd 2817, 2817 (MBB 1994) (notably, both decisions come after the shift in approach embodied in the 1986 Donahue decision).

Applying this standard, daytime talk and late-night shows are generally 90% entertainment and perhaps 10% news. News/talk radio programs, by contrast, are the reverse: 90% news commentary and newsmaker interviews and perhaps 10% entertainment or celebrities.

A news/talk radio program like Glenn Beck or Sean Hannity looks like the program exempted in the Pacifica ruling—interviews primarily with “members of Congress and the state legislature, scholars, candidates for various offices, community leaders, and journalists.”

Daytime and late-night television, by contrast, looks a lot like a mix of “news interviews” with “interviews of entertainment personalities, authors and sports celebrities. This program is not the type Congress intended to exempt from Section 315 . . . since it does not deal solely, or even predominantly with news matters.” Complaint of Gillis, 43 F.C.C.2d 584, 589 (BB 1973).

In short, the FCC should apply the same standards regardless of the medium. A news/talk radio program with a “predominant” focus on news interviews and commentary should qualify under the public notice because it is primarily focused on news and news commentary, not entertainment.