It’s time to kill the equal time rule

While the Federal Communications Commission (FCC) is commendably repealing many outdated regulations, one major form of broadcast content regulation stubbornly remains: the “equal time” rule. Worse, rather than letting this relic fade away, the FCC now appears determined to reinvigorate it.

FCC Chair Brendan Carr recently “reminded” television networks that their daytime and late-night talk shows are subject to the equal time rule. The FCC’s Media Bureau followed up with guidance warning broadcast stations that “airing covered programming motivated by partisan purposes” must comply with the rule. It also informs programmers that they cannot rely on the “bona fide news interview” exemption recognized by the Media Bureau in a 2006 decision involving then-California gubernatorial candidate Arnold Schwarzenegger’s appearance on The Tonight Show with Jay Leno.

Created in an era of limited media options, the equal time rule is found in Section 315(a) of the Communications Act of 1934 and in companion FCC regulations. It provides that if a radio or television broadcast licensee permits a legally qualified candidate for public office to use the station, the licensee must afford “equal opportunities” to all other candidates for that same office. Although the statute uses the phrase “equal opportunities,” it is commonly known as the “equal time” rule. The law contains exemptions that include “bona fide newscasts” and “bona fide news interviews.”

Congress should repeal this rule for several reasons.

Start with the most obvious: it applies only to broadcast stations. As the FCC Fact Sheet acknowledges, these rules “do not apply to cable channels or web-based video or audio such as streamed video content, podcasts, or social media.” They do not apply to newspapers either. In a world of abundant platforms and infinite channels, this regulatory distinction is incoherent.

Consider the actual media marketplace. The View, the number one daytime broadcast talk show, draws about 2.6 million viewers. By contrast, The Joe Rogan Experience podcast averages roughly 11 million listeners per episode. Gutfeld!, a 10pm cable show on Fox News, has averaged about 2.9 million viewers — more than any of the broadcast network late-night shows.

Yet The View and network late shows air on broadcast stations and are subject to the equal time rule, while podcasts and cable channels — often with larger audiences — are not. The result is a regulatory regime that targets shrinking portions of the media ecosystem. Meanwhile, the sheer abundance of voices across podcasts, cable, streaming, and social media already makes clear that the equal time rule is not needed to ensure viewpoint diversity.

Even on its own terms, the rule is far narrower than the Media Bureau’s rhetoric suggests. Despite its warnings about programming “motivated by partisan purposes,” the rule does not apply to every appearance by a politician. It applies only to “legally qualified candidates for public office.”

If, for example, Sen. Bernie Sanders (I-VT) appears on The View while he is an elected official but not a current candidate for office, the equal time rule does not apply. There is no obligation to offer airtime to anyone else, because the statute requires equal opportunities only for “all other such candidates for that office.” If there is no candidacy, there are no “other” candidates.

In other words, notwithstanding the Media Bureau’s language, the equal time rule does not generally require programmers to present opposing viewpoints if content is politically motivated.

Even when the rule does apply, its practical effect is often misunderstood. The FCC Fact Sheet makes clear that stations are not required to give the opposing candidate airtime on the same program. If a candidate appears on The View, ABC does not have to put rival candidates on The View. It need only offer “comparable” airtime — which in the past has included free airtime for campaign advertising.

But the deeper problem is not just obsolescence, it is risk.

As a form of content regulation, the equal time rule is inherently vulnerable to political abuse. Carr has already shown a willingness to invoke the Communications Act’s “public interest” standard to pressure licensees over content he finds objectionable.

He is hardly the first to do so. The Kennedy and Johnson administrations notoriously abused the now-repealed Fairness Doctrine, which required broadcasters to present opposing views on controversial issues. Their strategy was to “use the fairness doctrine to challenge and harass right-wing broadcasters” so that they “would be inhibited and decide it was too expensive” to continue airing conservative programming. The goal was not merely to add more voices, but to chill disfavored ones.

That is the danger of content regulation.

All of this is unnecessary — and avoidable. Congress should repeal the equal time rule outright. Doing so would eliminate a tool for political misuse, retire a rule built for a vanished era of media scarcity, and acknowledge the obvious reality of today’s communications marketplace: Americans already live in a world of abundant, competing voices.