The FCC Media Bureau’s January 21 public notice to broadcast TV stations said that despite a 2006 decision in which the FCC exempted The Tonight Show with Jay Leno from the rule, current entertainment shows may not qualify for that exemption. “Importantly, the FCC 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,” the notice said.
The Media Bureau’s January 21 notice said the equal-time rule applies to broadcast TV stations because they “have been given access to a valuable public resource (namely, spectrum),” and that compliance with “these requirements is central to a broadcast licensee’s obligation to operate in the public interest.”
The FCC notice got this detail wrong, according to Harold Feld, a longtime telecom attorney who is senior VP of consumer advocacy group Public Knowledge. The equal-time rule actually applies to cable channels, too, he wrote in a January 29 blog post.
“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,” Feld wrote. “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.” The US law applies both to broadcast stations using public spectrum and “community antenna television,” the old name for cable TV, Feld pointed out.
This doesn’t actually mean that people can file FCC complaints against the Fox News cable channel, though, Feld wrote. This is because 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,” he wrote.
Leno ruling just one of many
In any case, Feld said the Media Bureau’s “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.” While the FCC cited its Jay Leno decision, Feld said the Leno ruling was “merely one of a long line of FCC decisions expanding the definition of ‘news interview’ and ‘news show.’”
