Yesterday, TechFreedom filed comments in response to the Federal Communication Commission’s (FCC) request for comment regarding the petition by Disney’s ABC asking the Commission to declare that The View qualifies as a bona fide news interview program and thus is exempt from the requirement to provide “equal opportunities” to the rivals of political candidates interviewed on The View. 

“If any rival candidate can demand equal time, talk shows would interview fewer political candidates—or none at all,” said Berin Szóka, President of TechFreedom. “That’s why Congress created the exemptions in 1959, and why the Commission has deferred to the good-faith editorial judgments of broadcast shows for half a century. Initially, only shows like Meet the Press qualified, but in 1984, the Commission began allowing innovative formats, which ultimately made possible shows like Politically Incorrect. What mattered was that the show was regularly scheduled, not a gift of airtime to a candidate, and that the hosts controlled the interview, not an open-mic for a candidate’s supporters. It was up to candidates to prove that the show was trying to advance a particular candidate. In 2003, the Media Bureau wisely told broadcasters and shows not to bother seeking prior determination of their bona fides.”

“Now, the Bureau has gutted all of this precedent, leaving television broadcasters in fear of fines or even losing their licenses,” continued Szóka. “It demands that shows seek prior clearance that they are not, as Chair Carr put it, ‘fake news.’ Their freedom to decide whom to interview will depend on his whim. This is obviously unconstitutional. It is a system of prior restraint, the most odious kind of censorship. It applies only to television shows, not radio shows, which reveals its obviously partisan purpose: to punish television shows for not interviewing Trump’s political allies, while conservative talk radio, cable shows, YouTubers and podcasters remain free to entirely exclude political candidates opposed to Trump. This is the worst example of jawboning in American history—except for Trump and Carr’s threats to take away ABC’s broadcast licenses, which clearly have the same aim: suppressing dissent and ensuring complacent media.”

“Section 315(a) was already constitutionally suspect,” concluded Szóka. “The law imposes special burdens on some speakers but not others: Its must-carry mandate applies to The View and other talk shows hosted by ABC, NBC and CBS, but not to the many Fox News talk shows that appear only on cable. Nor does it apply to YouTube channels or podcasts such as the Joe Rogan Experience, or The New York Times’ The Daily. The constitutional rationale for denying full First Amendment protection to broadcast media in Red Lion Broadcasting Co. v. FCC (1969) rests on the media scarcity of the 1960s; it long ago became obsolete. The FCC’s overreach may finally lead a court to strike down this statute—and perhaps the entire system by which the agency manipulates broadcast content.”

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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