Time’s up for the equal time rule

Merriam Webster’s dictionary defines “anachronism” as a person or thing that is chronologically out of place, “especially: one from a former age that is incongruous in the present.” Much government regulation fits that definition, but the broadcast station equal time rule is a living example of an anachronism, fully of a former age and incongruous in the present.

An equal time rule first appeared in the Radio Act of 1927 and was subsequently included in Section 315(a) the Communications Act of 1934 and in companion FCC regulations. It provides that if a radio or television broadcast licensee (i.e., a radio or television broadcasting station using licensed spectrum for over the air transmission) permits any legally qualified candidate for any public office to use a broadcasting station, the licensee shall afford “equal opportunities” to all other such candidates for that office to use that broadcasting station. While the statute uses the term “equal opportunities,” it is commonly known as the “equal time” rule.

The FCC equal time Fact Sheet states that its rules seek to ensure that no candidate “is unfairly given less access to the airwaves” than her or his opponent. Equal opportunity generally means providing comparable time and placement to opposing candidates. It does not require a station to provide opposing candidates with “programs identical to the initiating candidate.”

Obviously much has changed since 1927. Over the air broadcast was once dominant but today cable channels, streaming platforms, podcasts, social media and online newspapers with integrated video and audio are among the sources for entertainment, news and information. Broadcast and other linear television viewership is in decline and streaming now claims a 43.5 percent share of total television viewing. YouTube viewing on television commands 11.6 percent of total television viewing, outpacing many cable networks.

While broadcast radio is holding its own in listenership, particularly when people are in the car, younger adults are turning to podcasts for news, providing a leading indicator for the future.

The FCC Fact Sheet acknowledges that “these rules do not apply to cable channels or web-based video or audio such as streamed video content, podcasts, or social media.” Given the wide array of media platforms not subject to the equal time rule, why continue to impose it on broadcast stations? It is clearly anachronistic.

It also leads to odd results. On the Saturday before election day in November 2024, Vice President Harris made a surprise appearance on NBC’s Saturday Night Live (SNL) for two and half minutes. SNL did not offer then candidate Donald Trump the same opportunity. SNL is carried on NBC broadcast station affiliates, and the equal time rule applies to those stations. Then-FCC Commissioner and now Chair Brendan Carr protested, calling it a “clear and blatant effort to evade the FCC’s Equal Time rule.”

However, as the FCC Fact Sheet explains, the equal time rule does not require a broadcast station to provide the opposing candidate with a program identical to that of the initiating candidate. NBC satisfied the equal time rule by offering candidate Trump a minute of airtime on the next day’s NASCAR race and on the Sunday Night Football postgame show (the Trump campaign was likely pleased with airtime during popular sports programming). Following a third-party complaint at the FCC, the Media Bureau found no violation of the equal time rule.

The absurdity is that if Vice President Harris had appeared on a cable channel, Netflix program, X stream or podcast instead of SNL, the equal time rule would not have applied. It was implicated solely because she appeared on a program that was carried by broadcast station licensees.

Time has clearly run out on the equal time rule. Congress should bring us into the current century and eliminate this anachronism.