In the latest round of regulatory controversy around late-night television, the Federal Communications Commission (FCC) issued a Public Notice last week reminding broadcasters of their responsibilities under the equal time rule, Section 315 of the Communications Act. More specifically, the FCC specified that daytime and late-night talk shows had not shown they should count as “bona fide news,” the phrase used in the Act. As a result, if broadcasters feature political candidates on daytime or late-night shows, they will now have to extend equal access if their political opponents request it.

The FCC’s interpretation has come under attack as inconsistent with law, precedent, and the First Amendment. Democratic FCC Commissioner Anna Gomez, for instance, put out a statement saying, “For decades, the Commission has recognized that bona fide news interviews, late-night programs, and daytime news shows are entitled to editorial discretion based on newsworthiness, not political favoritism. That principle has not been repealed, revised, or voted on by the Commission.” Democratic U.S. Rep. Doris Matsui, ranking member on the House Energy & Commerce Subcommittee with jurisdiction over the FCC, similarly wrote on X, “FCC Chairman Brendan Carr is pulling every dirty trick in the book to weaponize his agency against dissenting voices and attack our First Amendment rights.”

These and other critics are wrong on all three counts.

First off, the equal time rule is not an exercise of the FCC’s broad “public interest” authority—it is a specific command from Congress. Congress enacted the equal time rule originally in the 1927 Radio Act, then repeated it in the 1934 Communications Act, and amended it in 1959 to add the “bona fide news” exemptions. “The legislative history indicates that certain news interview programs, like ‘Meet the Press’ and ‘Face the Nation,’ were intended to be covered.”[1]

Congress added the qualifier “bona fide” to “news” to incorporate an element of good faith into the analysis: “Congress qualified each exemption with the term ‘bona fide’ to emphasize that, to be exempt from the equal opportunities requirement, news programming should be genuinely newsworthy and not designed for the partisan purpose of advancing or harming any particular candidate.”

The “bona fide” qualifier also helps protect the provision from being rendered meaningless by an overly expansive interpretation. “A wider interpretation . . . would result in defeating the Congressional desire to continue to enforce the equal opportunities provision. That provision would be unenforceable since, except for the case of paid advertisements, stations wishing to interview a candidate could do so on any program, while simply claiming that the news interview exemption is applicable. The exceptions would literally swallow the equal opportunities rule.”[2]

To state the obvious, Jimmy Kimmel Live is not Meet the Press. Not by a long shot, not even close.

Nor was the FCC’s announcement contrary to its own precedent. Congress amended Section 315 to put in the “bona fide news” exemption in 1959. One year later, the FCC received a complaint after then-Senator Jack Kennedy appeared on NBC’s The Tonight Show. The Commission held that “the appearance of Senator Kennedy on [the] Jack Paar program was not exempt from [the] equal opportunities requirement of Section 315” because it was a “variety program” rather than “bona fide news.”[3] This was contrasted with another NBC show, Today, which was exempt because it “emphasiz[ed] news coverage, news interviews, news documentaries and on-the-spot coverage of news events.”

That precedent set the course of Commission action for the next 25 years. In 1973, for instance, the Commission staff ruled a show did not qualify because it featured “a melange of news interviews along with comments by [the host] and interviews of entertainment personalities, authors and sports celebrities. This program is not the type Congress intended to exempt from Section 315…”[4]

The Commission staff rejected a similar complaint concerning the Tomorrow program, finding the show “appears to deal with newsworthy topics and individuals on an intermittent and not on a regularly scheduled basis, while at other times providing its audience with entertainment or a conventional talk show format.”[5]

That same year, Commission staff ruled that a morning talk show, “AM Washington,” was not exempt. The program “primarily consists of interviews with guests from all fields of endeavor, with an occasional performance by a visiting entertainer.” The staff found that “[a]lthough occasionally a guest will be invited on the program to discuss a newsworthy topic, it cannot be said that the program itself is one of the ‘news and other similar programs’ contemplated by the statute.”[6]

The Commission held to its ruling on the Paar program in its 1966, 1978, and 1984 guides to politics-related programming. Indeed, the 1978 guide specified that if a comedian appeared in a comedy program while also running for public office, it would trigger an equal time obligation.

In 1980, Commission staff declined an exemption request for the Donahue program, saying, “We do not believe that Congress anticipated the granting of exemptions to programs where the majority of guests may be of general interest to segments of the viewing or listening audience without taking into consideration the news events of the day…”[7]

Starting in 1984, however, as part of the Commission’s general move toward deregulation and the end of the Fairness Doctrine, the FCC reversed its previous ruling and granted a news exemption to the Donahue program.[8] “Since the Donahue decision, other news interview programs or segments thereof with unique and innovative format elements, such as the ‘Sally Jessy Raphael Show’, ‘Jerry Springer,’ and ‘Politically Incorrect,’ have qualified for the news interview exemption.” That led to the 2006 decision on the Leno Tonight Show, which reversed the Paar decision.

In short, Commission precedent has not been consistent on this topic. From 1960 to 1980, the Commission took a restrictive view of the exemption, in line with its understanding of congressional intent. From 1984 to 2006, conversely, the Commission took a broader view that included less traditional shows.

The Commission suggested a more traditional view in 2008, and again in 2015, each time qualifying a show because it “reports news of some area of current events, in a manner similar to more traditional newscasts.” Again, to state the obvious, Jimmy Kimmel Live is not a newscast and does not operate similarly to traditional newscasts (although, in fairness, the claim is that the individual interview with a candidate is bona fide news, not the show overall).

In sum, the Commission’s 2026 Public Notice should not be seen as an abrupt break from the Commission’s precedent. Rather, the Public Notice is in line with the statutory text and legislative history. It also fits within the broad ebb-and-flow of the Commission’s precedent—it is not an unprecedented break with past Commission practice but rather a restoration of past Commission practice.

Finally, the Public Notice is fully in line with the First Amendment. In Red Lion Broadcasting (1969), the Supreme Court squarely upheld the Commission’s Fairness Doctrine, which required equal time for advocates of different viewpoints. If the Commission could constitutionally mandate equal time for different viewpoints, then Congress can certainly mandate equal access for candidates.

Seen through the lens of statutory interpretation, Commission precedent, and First Amendment law, the FCC’s Public Notice last week stands on solid legal ground. Network executives should respect it, and the Commission should not hesitate to enforce it if broadcasters fail to comply with Congress’s directive.

Daniel Suhr is president of the Center for American Rights, a nonprofit public-interest law firm.

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[1] In re Request for Declaratory Ruling of Multimedia Program Productions, Inc., 84 F.C.C.2d 738, 743-744 (1981) (citing 105 Cong. Rec. 16230 (1959) (remarks of Congressmen Ikard and Harris)).

[2] In re Complaint of Socialist Workers Party, 65 F.C.C.2d 229, 233 (1977).

[3] In re Request for “Equal Time” Under Section 315 of the Commc’ns Act of 1934, 40 F.C.C. 313 (1960); Broadcast Actions, 40 F.C.C. 314 (1960). Accord In re Davis for Congress, 59 F.C.C.2d 351, 354 (1976).

[4] Complaint of Gillis, 43 F.C.C.2d 584, 589 (1973).

[5] In re Complaint by Socialist Workers Party, 66 F.C.C.2d 1080, 1087 (1976).

[6] In re Request by Evening Star Broadcasting Co., 63 F.C.C.2d 396, 400 (1976).

[7] In re Request by Multimedia Program Productions, Inc., 80 F.C.C.2d 217, 222 (1980).

[8] Multimedia Entertainment, Inc., 56 RR 2d 143, 146 (1984).