On Monday, Feb. 16, late-night television host Stephen Colbert planned to interview Texas senate candidate James Talarico. However, he was told by his network’s lawyers that he was not allowed. The reason was because of a ruling that requires radio stations and broadcast television channels to give equal airtime to all candidates in an election.
The equal time rule was part of the Radio Act of 1927, and expanded to include television networks in the Communications Act of 1934. When the Communications Act was passed, television was still a largely experimental technology. It was not until the 1940s that networks began airing continuous tv programming. In the early days of television, there were only four networks: NBC, CBS, ABC and DuMont. DuMont eventually shut down, leaving only three networks until the rise of HBO and Fox in the late 1970s and ’80s and the rapid growth of cable in the ’90s.
Even by the ’50s, television had replaced radio as the dominant medium for Americans to get their entertainment—and their news. Television also offered a chance for candidates in an election to speak directly to a national audience, rather than having to spread their beliefs through newspapers, which were largely local rather than national at the time. However, with only three networks available for viewers to watch, the decision made by a network executive to grant or deny a candidate’s airtime would make or break their campaign. Thus, it was necessary for Congress to require equal airtime to prevent network executives from holding too much power over our democracy.
However, recognizing that the networks had First Amendment rights to air what they choose, and that some candidates are more serious than others, the Federal Communications Commission (FCC) enacted several exceptions to the equal time rule. One of those was a news exception: networks could report news about one candidate or campaign without having to talk about all of their competitors. Paid advertising does not trigger the equal time rule, and debates hosted by entities other than the network can be aired even if not all candidates are invited.
Historically, the FCC has interpreted the news exception in an extremely broad manner, allowing candidates to be interviewed on late-night talk shows without triggering the equal time rule. This is because the host of these shows functions essentially as a journalist, asking the candidate questions that the audience has an interest in, and presumably requiring some level of truthfulness from their guest. However, earlier this year, FCC chair Brandon Carr announced that late-night television would be categorized as entertainment, not news, and therefore would not qualify for the equal time news exception. This shift forced Colbert not to air his interview with Talarico on his show; instead, he posted it to YouTube, where it received more than 10 million views.
Whether or not Carr is correct in interpreting shows like Colbert’s as entertainment rather than news, a bigger question looms in the background of this whole debate: Is the equal time rule still necessary?
It’s not the ’50s anymore. There are a lot more than four networks for people to choose from; if a candidate is denied airtime on one network, they can go to any of the other 2,800. Even if they are unable to get onto any network, that’s hardly the death blow to their campaign that it would have been in the early days of broadcast television. In fact, only 40% of American households even have a cable subscription now. The most effective efforts to reach voters are made not on traditional media, but on social media, where anyone can create an account and reach anyone who is interested.
Instances like the Talarico interview debacle show how the equal time rule is far from helping ensure that candidates have a platform to express their views. It is denying them that very platform that it was created to provide. If shows like Colbert’s are hesitant to invite a candidate because they need to provide valuable airtime to multiple other candidates who may be less appealing to the audience to avoid wrath of the FCC, then the rule is doing more harm than good. To put it simply, the equal time rule is an outdated relic from a bygone era of television that has no place in our modern media environment.
