CEI Comments on Petition for Declaratory Ruling of KTRK Television, Inc. and American Broadcasting Companies, Inc.
MB Docket No. 26-124
The Competitive Enterprise Institute (“CEI”) respectfully submits these comments in response to the Media Bureau’s Public Notice in the above-captioned proceeding.[1] CEI is a nonprofit public policy organization dedicated to limited government, free markets, and individual liberty, with longstanding interests in communications regulation and the First Amendment. CEI submits that the Commission should adhere to its established, broad construction of the bona fide news interview exemption under Section 315(a) and decline to narrow that construction in this proceeding.
I. INTRODUCTION AND SUMMARY
Section 315(a) of the Communications Act provides that a broadcaster who permits one legally qualified candidate to use its station must afford equal opportunities to all other candidates for the same office.[2] When Congress amended the provision in 1959, it did not tighten that obligation, it instead relaxed it. Specifically, Congress exempted bona fide news programming so that a broadcaster’s ordinary news judgment would not trigger cascading access obligations. The Commission has construed that bona fide news interview exemption generously ever since, beginning with its 1984 Donahue determination.[3] That generous construction has done real constitutional work as it has preserved a domain of protected editorial judgment and allowed the equal opportunities requirement to coexist with the First Amendment for four decades.
Section 315(a) governs the program at issue in this proceeding, The View, because the program airs on ABC-affiliated television stations that hold broadcast licenses, and licensed broadcasters are subject to the equal opportunities requirement and to the Commission’s jurisdiction.[4] The operative question is therefore one of construction; namely, how broadly the bona fide news interview exemption reaches. These comments address that question within defined limits. They do not attempt to prove that The View qualifies as a bona fide news interview on its particular facts (a question the petitioner’s record addresses). They also do not contend that the equal opportunities requirement was unconstitutional when adopted, and they do not ask the Commission to decline to enforce a valid statute. The constitutional question is approached here on the basis of avoidance, not invalidation. Though these comments keep to that structural ground, the proceeding presents precisely the situation the exemption was designed to govern. Specifically, the proceeding concerns an editorial decision to feature a newsworthy public figure, a decision that under a narrow reading would obligate the broadcaster to afford equal opportunities to every other qualified candidate for the office. The broad construction resolves that difficulty without requiring any judgment about the program’s content or the politics of its participants.
Two positions form the discussion. First, the bona fide news exemption is the feature that has kept the equal opportunities requirement constitutionally tolerable, and the principle of constitutional avoidance counsels reading it broadly rather than contracting it in a single contested case. A narrow construction would raise serious First Amendment questions that the established construction avoids.
Second, the justification the equal opportunities requirement once had rested on a factual premise that no longer holds. Broadcast is no longer the bottleneck through which a candidate must pass to reach a mass audience, and the rule now binds broadcasters alone while cable, streaming, podcasts, and print carry the same political content free of any comparable obligation. The requirement’s factual predicate has dissolved, and its policy foundation with it. A narrow construction would therefore secure no benefit Congress sought while imposing a real and one-sided First Amendment cost on the one medium still subject to the rule. In short, the present media environment counsels the broad reading rather than the narrow one.
Both positions converge on the same recommendation. The Commission should adhere to its longstanding broad construction of the bona fide news exemption, resolving this proceeding within its own authority and without reaching the constitutional questions a narrow reading would raise. Part II takes up the First Amendment ground, Part III the obsolescence of the requirement’s factual and policy premises, and the conclusion sets out the recommendation these positions support.
II. THE BONA FIDE NEWS INTERVIEW EXEMPTION SHOULD BE CONSTRUED BROADLY TO AVOID THE SERIOUS FIRST AMENDMENT QUESTIONS A NARROW READING WOULD RAISE
The bona fide news interview exemption is the feature of Section 315(a) that has allowed the equal opportunities requirement to coexist with the First Amendment for more than four decades. Construed broadly, as the Commission has done since Donahue, it preserves a domain of protected editorial judgment and keeps the equal opportunities requirement within constitutional bounds. Construed narrowly, the compelled-carriage burden pushes against constitutional boundaries. Thus, the constitutional questions here are serious and avoidable. Accordingly, the Commission should avoid them by adhering to the construction it has long applied.
A) The requirement, applied to a broadcaster’s news judgment, compels speech the First Amendment protects the right to withhold.
The presentation of news is protected expression, and a rule that overrides it compels speech. The First Amendment protects not only the right to speak, but also the right to choose what not to say. It has long treated editorial judgment (the decision of what to cover, whom to feature, and what to leave out) as protected speech. The Supreme Court established this point in Miami Herald Publ’g Co. v. Tornillo, striking down a Florida statute that required newspapers to grant reply space to candidates they had criticized.[5] The Court has since applied that principle well beyond print.[6] Broadcasters are not beyond the scope of this principle; they too exercise protected editorial discretion in presenting their programming.[7] That a broadcaster is licensed and subject to the Commission’s jurisdiction does not remove its programming choices from that protection.
Applied to a broadcaster’s good-faith news judgment, the equal opportunities requirement runs counter to these principles. A single decision to cover one newsworthy candidate triggers an obligation to afford equal opportunities to every other legally qualified candidate for the same office, regardless of newsworthiness. Accordingly, the requirement imposes on a broadcaster messages it did not choose and forces it to alter its editorial offering to accommodate speakers it would not otherwise have featured. That is the type of compelled carriage the First Amendment ordinarily forbids. The bona fide news exemption is what removes good-faith news judgment from that compulsion. Construed broadly, it preserves the editorial discretion the Constitution protects. Construed narrowly, however, the compulsion reaches into the very domain of news judgment the First Amendment places off limits.
B) A narrow construction would chill protected political coverage, which creates serious concerns.
The burden that a narrow construction of the bona fide news exemption imposes predictably suppresses protected political coverage, which makes the constitutional concern here serious. The deterrence of protected expression is itself a cognizable First Amendment injury. Independent of any completed enforcement action, a rule that leads speakers to withhold protected speech in order to avoid liability inflicts the very harm the doctrine is designed to prevent.[8] Stripped of a robust news exemption, the equal opportunities requirement produces that deterrence.
Consider the implications. Because a single “use” by one candidate obligates a broadcaster to afford equal opportunities to all other legally qualified candidates for the same office, the cost of covering one “newsworthy” candidate is the obligation to accommodate every other qualified candidate. In a large open primary, that can mean dozens of candidates. In the 2026 California gubernatorial primary, for example, more than sixty candidates qualified for the ballot.[9] No daily program can absorb sixty equal-opportunity claims, so a broadcaster that gives airtime to one candidate cannot realistically host the rest. Faced with that prospect, the broadcaster interviews none. Narrowly construed, the requirement does not produce balance. It produces silence.
That silence is the more troubling manifestation of the compelled-carriage burden, because it occurs in advance of any coverage and remains unseen. A broadcaster may decline coverage altogether to avoid cascading obligations, and nothing in the record will note the coverage that never aired. This burden is heaviest in competitive, candidate-rich races in the lead-up to an election, when voters need coverage most. A requirement defended in the name of an informed electorate would thus suppress political coverage at the very moment an informed electorate matters most.
C) The special deference once afforded to broadcast regulation has eroded, so these concerns carry their ordinary constitutional weight.
The conventional justification for the equal opportunities requirement is that broadcasting is unique and subject to a different standard. That justification, however, has been substantially undermined. In Red Lion Broadcasting Co. v. FCC, the Supreme Court sustained certain content obligations on the theory that the broadcast spectrum was a scarce public resource.[10] The Court later signaled that it would reconsider the scarcity rationale on an appropriate record.[11] Justices and D.C. Circuit judges have since doubted whether the scarcity justification was ever sound, noting that the text of the First Amendment draws no distinction among print, broadcast, and cable media, and that economic scarcity applies, in some form, to every medium.[12] The Commission itself has reached the same conclusion. When it abandoned the fairness doctrine in 1987, it found that the growth of broadcast and nonbroadcast outlets had dispelled the scarcity premise on which intrusive content regulation had rested.[13] The number and variety of voices have only multiplied since.
The Commission does not need to resolve any of that here. Red Lion remains binding precedent that only the Supreme Court may revisit, and these comments do not ask the Commission to declare the equal opportunities requirement unconstitutional. The point here is narrower, and it bears only on construction. Specifically, the deference broadcast regulation once enjoyed has weakened considerably, so the editorial-discretion and chilling concerns described above are not neutralized by broadcasting’s former exceptional status.
D) The Commission should adopt the forty-year construction, because a narrow reading raises serious questions.
The above concerns lend themselves to the following interpretation. Namely, when a statute is reasonably susceptible to more than one construction, and one construction would raise serious constitutional questions while another would not, the body administering it must adopt the reading that avoids them.[14] That command applies with particular force to an agency construing its own relevant statute, which has, if anything, a stronger interest than a reviewing court in not placing its statute in constitutional jeopardy. The bona fide news exemption supplies that fairly available construction. Read to reach the full range of programs in which a licensee exercises good-faith editorial control over newsworthy content (the reading applied since Donahue), it keeps the requirement clear of the concerns described above.
The narrow construction would not merely be less prudent, it would deepen the constitutional difficulty rather than avoid it. Confining the exemption to a set of traditional or ostensibly neutral formats, while excluding programs whose perspective the agency finds less congenial, is itself a content- and speaker-based distinction. It would require the Commission to sort programs by its own contestable view of what counts as genuine news, a judgment that will track the preferences of whoever holds power, since what one administration regards as partisan another may regard as essential public-affairs coverage. That is precisely the terrain on which the Constitution withholds standardless discretion from government officials, because such discretion invites the very content and viewpoint discrimination the First Amendment forbids.[15] A reading that vests the agency with that sorting power is therefore not the constitutionally safe one, it is the dangerous one.
The broad construction urged here is neither novel nor boundless. It is the established, viewpoint-indifferent reading the Commission has applied for four decades, reaching a wide range of programs that exercise good-faith editorial control over newsworthy content, whatever their format or their hosts’ perspective. The Commission is asked only to adhere to that construction and to decline to contract it in a single contested case, resolving this proceeding within its own authority while avoiding the serious First Amendment questions a narrow reading would raise.
These principles bear directly on the matter before the Commission. The choice of whether to feature a particular public figure on a program such as The View is the kind of editorial judgment the authorities above protect, and a construction that placed that choice outside the bona fide news exemption would burden the very discretion the exemption exists to preserve. The Commission can resolve this proceeding on that ground, by confirming that its established construction reaches programs of this kind.
III. THE EQUAL OPPORTUNITIES REQUIREMENT IS AN OBSOLETE INSTRUMENT WHOSE FACTUAL PREDICATE HAS COLLAPSED
The case for the broad construction does not rest on constitutional avoidance alone. The equal opportunities requirement was built for a media environment that no longer exists. The requirement was never an end in itself. Instead, it was a means of securing candidate access at a time when a handful of broadcast licensees controlled the principal channel of political communication (that condition has since dissolved). A narrow construction would now impose the First Amendment cost described above in exchange for an access benefit the modern media market already supplies on its own. Considering that the benefit has disappeared while the costs and risks remain, little is left to justify the narrow reading.
A) The requirement was instrumental.
The requirement was adopted to serve a specific end, not as a freestanding command of equality for its own sake. The original purpose was to ensure that political candidates could reach a mass audience when broadcasting was, essentially, the only way to do so. The clearest evidence of that instrumental character is the bona fide news exemption itself. When Congress amended Section 315(a) in 1959, it did so not to tighten the requirement but to relax it, creating a bona fide news programming exemption in order to encourage coverage of campaigns. The object, as the legislative record makes explicit, was to bring news of political races to the greatest possible number of citizens, and to leave control of that coverage with broadcasters rather than with the government.[16] The D.C. Circuit read the same priority into the statute.[17] Congress knowingly accepted the risk of broadcaster favoritism in exchange for broader news coverage and greater editorial discretion. The requirement was, in short, an instrument calibrated to the conditions of mid-century mass media.
B) The access bottleneck the requirement addressed no longer exists.
The initial conditions that gave the requirement its force have dissolved. In 1959, and still in 1969 when Red Lion was decided, broadcast was the dominant means by which a candidate could reach a mass audience, and exclusion from it amounted, essentially, to exclusion from the public square. That is no longer the environment in which the requirement operates. A candidate denied a slot on any one broadcast program today reaches voters through many different avenues that the rule does not touch (cable and satellite, podcasts, online outreach, and social media). The market for political news and information is no longer scarce.[18] Instead, that market is saturated, and saturated particularly among the platforms the requirement does not govern. The Commission’s own market assessments reflect this, treating broadcast television as one channel among many that compete to deliver video programming, alongside cable, satellite, and a growing field of online distributors.[19] Broadcast television now accounts for only about a fifth of all television viewing, and streaming alone has surpassed broadcast and cable combined,[20] while digital devices have become the most common way Americans get news, with only about a third saying they often get news from television.[21] The premise that once justified the rule, that a broadcaster’s editorial judgment can meaningfully bottleneck a candidate’s access to the public, no longer applies.
This is an argument about fit, not validity. The point is not that changed circumstances have rendered the requirement unconstitutional, nor that the Commission may decline to enforce a statute because the world has moved on. The point is narrower. A rule justified primarily as a means to an end loses its claim to expansive application once the end can no longer be served by the means (that is, once the access it once secured is available everywhere the rule does not reach, while the burden it imposes falls on the one medium that remains subject to it). Read narrowly, the exemption thus purchases nothing Congress was trying to buy.
C) Limited to broadcasting, the requirement currently works against its own purpose.
The requirement is not merely outdated. Applied to a shrinking portion of the media environment, it has become self-defeating. Because the rule reaches broadcast but not streaming, cable, or online distribution, enforcing it does not level the playing field. Instead, the enforcement tilts the field against the one medium still subject to it. The same candidate interview that triggers cascading equal-opportunities obligations on a broadcast station carries none on a cable program, a streaming channel, or a podcast (none of which the requirement reaches). Faced with that asymmetry, the rational broadcaster carries less candidate coverage, not more, ceding political programming to forms of media that bear no access obligations whatsoever. Why would a broadcaster expand its coverage of a contested race when every additional interview multiplies its exposure to equal-time claims, while its unregulated competitors carry the same content freely?
The same logic applies to this proceeding. Because The View reaches its audience through ABC-affiliated broadcast licensees, a narrow construction would single out those stations for an obligation that no cable, streaming, or print competitor covering the same race would bear, and it would do so to secure an access benefit the modern media market already supplies. The broad construction spares the Commission that mismatch and keeps the exemption aligned with the media environment as it actually exists.
IV. CONCLUSION
A narrow construction imposes a serious and concrete First Amendment cost (namely, the chilling of protected political coverage on the regulated medium). Yet the benefit meant to offset it has not merely diminished but disappeared. Additionally, the benefit (applied to broadcast alone) is inverted, because the access the requirement was designed to secure is now supplied everywhere the rule does not reach. A construction that imposes a live constitutional cost to purchase a vanished benefit is not the sound reading of the statute. The Commission should thus adopt the broad, longstanding construction, which avoids that cost and forfeits nothing Congress sought to protect.
Nothing in this position asks the Commission to depart from its ordinary practice. The broad construction is itself the product of the case-by-case adjudication through which the Commission has administered the exemption since Donahue, and adhering to it here continues that practice rather than abandoning it. The narrow reading would do something different in kind. Specifically, it would narrow a settled, generally applicable construction in a single contested case. To the extent the requirement itself warrants reconsideration, the appropriate vehicle is a rulemaking of general application or a recommendation to Congress, not the case-specific narrowing of an interpretation the Commission has applied for four decades.
Respectfully submitted,
COMPETITIVE ENTERPRISE INSTITUTE
Denison (DJ) Hatch, Policy Analyst
Center for Technology and Innovation
1310 L Street NW, 7th Floor
Washington, DC 20005
(202) 331-1010
June 22, 2026
[1]FCC’s Media Bureau Seeks Comment on Petition Regarding The View, Public Notice, DA 26-517, MB Docket No. 26-124 (May 22, 2026) [hereinafter Public Notice].
[2]47 U.S.C. § 315(a).
[3]Request by Multimedia Entertainment, Inc. for Declaratory Ruling, 56 Rad. Reg. 2d (P & F) 143 (1984) [hereinafter Donahue].
[4]See Petition for Declaratory Ruling of KTRK Television, Inc. and American Broadcasting Companies, Inc., MB Docket No. 26-124 (filed May 7, 2026) [hereinafter Petition].
[5]Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (recognizing the choice of what to print and how to treat public figures as protected editorial control).
[6]Moody v. NetChoice, LLC, 603 U.S. 707, 738 (2024) (applying the principle to a private digital platform’s choices about what speech to carry); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995) (a private parade’s selection of the contingents it includes); Wooley v. Maynard, 430 U.S. 705, 714 (1977) (an individual compelled to display a state message).
[7]Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998).
[8]Cf. Reno v. ACLU, 521 U.S. 844, 871–72 (1997).
[9]Sixty-one candidates qualified for the June 2, 2026, California gubernatorial primary ballot. See Cal. Sec’y of State, Certified List of Candidates for the June 2, 2026, Statewide Direct Primary Election (Mar. 26, 2026), https://elections.cdn.sos.ca.gov/statewide-elections/2026-primary/cert-list-candidates.pdf; see also Petition, supra note 4 (describing the same example).
[10]Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388–90 (1969).
[11]FCC v. League of Women Voters of Cal., 468 U.S. 364, 376 n.11 (1984).
[12]FCC v. Fox Television Stations, Inc., 556 U.S. 502, 530–35 (2009) (Thomas, J., concurring); Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 812 (1996) (Thomas, J., concurring in the judgment in part and dissenting in part); Telecomms. Rsch. & Action Ctr. v. FCC, 801 F.2d 501, 508 (D.C. Cir. 1986).
[13]Syracuse Peace Council, 2 FCC Rcd 5043 (1987); see also Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987).
[14]Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 500–01 (1979).
[15]City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757–58 (1988).
[16]105 Cong. Rec. 17777, 17782 (1959) (statement of Rep. Harris) (explaining that the exemption leaves reasonable latitude for broadcasters’ good-faith news judgment).
[17]Chisholm v. FCC, 538 F.2d 349, 366 (D.C. Cir. 1976).
[18]See Syracuse Peace Council, supra note 13 (Commission finding that the abundance of outlets had dispelled the scarcity premise).
[19]2024 Communications Marketplace Report, GN Docket No. 24-119, FCC 24-136, 39 FCC Rcd 14116 (2024) (assessing competition among MVPDs, online video distributors, and broadcast stations in the delivery of video programming) [hereinafter 2024 Communications Marketplace Report].
[20]Nielsen, The Gauge: U.S. Television and Streaming Snapshot (May 2025) (streaming surpassing the combined share of broadcast and cable for the first time, with broadcast at roughly one-fifth of total usage), https://www.nielsen.com/news-center/2025/streaming-reaches-historic-tv-milestone-eclipses-combined-broadcast-and-cable-viewing-for-first-time/; see also Nielsen, The Gauge (Dec. 2025) (streaming at 47.5% of total television viewing).
[21]Pew Research Center, News Platform Fact Sheet (2025), https://www.pewresearch.org/journalism/fact-sheet/news-platform-fact-sheet/.