Brendan Carr Has a Point About the Equal Time Rule
On Feb. 16, viewers of “The Late Show With Stephen Colbert” expected to see an interview with Democratic candidate for U.S. Senate James Talarico. Instead, Colbert announced that CBS had told him, “in no uncertain terms,” that he could not air the interview due to a recent interpretation of “the equal time rule” by Federal Communications Commission (FCC) chair Brendan Carr, and that would-be viewers would need to watch it online, beyond FCC’s regulatory reach.
“Let’s just call this what it is,” said Colbert. “Donald Trump’s administration wants to silence anyone who says anything bad about Trump on TV.” Colbert accused CBS and its corporate owner, Paramount, of caving to FCC “bullies.”
So is the FCC again running roughshod over free speech as a corporate behemoth bends the knee to Trump once more?
Not exactly. Brendan Carr is a partisan actor with much to answer for. But this is not a reprise of the Jimmy Kimmel episode from last fall, where—as detailed in Lawfare—Carr adopted an absurd reading of FCC regulations and policies to mount a bad-faith attack on Kimmel, which led to ABC temporarily taking him off the air. While Carr may well be acting in bad faith once again, his interpretation of the equal time rule is on a stronger legal footing than his interpretations in the Kimmel saga. And CBS’s purported legal concerns, in turn, have merit.
The Equal Time Rule
Older than commercial television itself, the equal time rule dates back to the Radio Act of 1927. (While everyone calls it the “equal time rule,” that’s a bit of a misnomer: It’s actually a statute, not a rule, and it requires “equal opportunities,” not equal time.) The statute, 47 U.S.C. § 315, mandates that “[i]f any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station.” Congress revised the statute in 1959 in response to an FCC decision that would have required broadcast stations to provide comparable time whenever a news program aired footage of a candidate. Absent congressional action, warned NBC president Robert Sarnoff, “a major curtailment of television and radio political coverage in 1960 is inevitable.” Congress acted swiftly to carve out four exceptions: “(1) bona fide newscast, (2) bona fide news interview, (3) bona fide news documentary ... or (4) on-the-spot coverage of bona fide news events.”
The constitutional justification for content-based regulations of broadcast media is that the public airwaves are a public resource and a limited one. Thus, courts have upheld regulations for broadcasts that wouldn’t survive scrutiny in other contexts. In Red Lion v. FCC (1969), the Supreme Court rejected a challenge to FCC rules (since repealed) that required broadcasters to provide response time to individuals or groups criticized via personal attacks or political editorials. The Court reasoned that the “scarcity” of public broadcasting—the fact that “there are substantially more individuals who want to broadcast than there are frequencies to allocate”—allowed governmental constraints that otherwise would violate the First Amendment.
Indeed, the Supreme Court soon struck down a similar regulation of newspapers: In Miami Herald Publishing Co. v. Tornillo (1974), the Court invalidated a Florida law that provided electoral candidates who received criticism in a newspaper article the right to require that the newspaper print, free of charge, the candidate’s reply. The Court reasoned that requiring newspapers to print specified content is not “consistent with First Amendment guarantees of a free press as they have evolved to this time.”
The legislative history of the 1959 amendments to § 315 indicates that, among the requirements to qualify for the bona fide news interview exception, the broadcaster’s selection of interviewees must be based on “the exercise of its ‘bona fide’ news judgment and not for the political advantage of the candidate for public office.” The FCC has long adopted this requirement in its rulings.
The “bona fide news interview” exception grew over time as candidate interviews gradually expanded beyond traditional political news programs and entered the entertainment world. Shows such as “Sally Jesse Raphael” and “Jerry Springer” received exemptions. So did radio shock jock Howard Stern.
And in 2006, the FCC determined that “The Tonight Show with Jay Leno” fit the bill. Specifically, the FCC rejected an equal-time complaint filed by Democratic gubernatorial nominee Phil Angelides following Leno’s interview with then-governor Arnold Schwarzenegger one month before the two faced off at the ballot box. The affected stations had responded by arguing that Leno hosts newsworthy guests with a variety of political perspectives—specifically naming Hillary Clinton, John McCain, and Schwarzenegger’s predecessor Gray Davis. The FCC concluded that the invitation to Schwarzenegger was not motivated by partisan purposes or to help his campaign. The FCC noted that Schwarzenegger had appeared on the show in prior years and that the show could have reasonably concluded that, as a movie star turned politician, he “would be of particular interest to the program’s nationwide audience.”
But where no exception applies, excluded candidates must receive upon request equal opportunity to use the station’s airwaves—not necessarily on the same program. For example, in 2024 the final preelection episode of “Saturday Night Live” featured a short skit with Kamala Harris. Upon the Trump campaign’s request, NBC-affiliated stations broadcast, free of charge, two one-minute Trump commercials the following day.
Last September, Carr suggested he might turn his attention to the application of the equal time rule. The day after Kimmel temporarily went off the air, Carr said, “I think it’s worthwhile to have the FCC look into whether ‘The View,’ and some of these other programs that you have, still qualify as bona fide news programs and therefore are exempt from the equal opportunity regime that Congress has put in place.”
At Carr’s direction, the FCC published a Jan. 21 public notice providing new guidance regarding the equal time rule. After reciting the history of the bona fide news interview exception, it stated that “[c]oncerns have been raised” that the broadcasting industry was operating under the erroneous assumption that all television talk-show interview segments qualified for the exception. Rather, the notice indicated, “these decisions are fact specific and the exemptions are limited to the program that was the subject of the request.” The notice asserted that “the FCC has not been presented with any evidence that the interview portion of any late night or daytime television talk show program on air presently would qualify for the bona fide news exemption.” And it warned pointedly that “a program that is motivated by partisan purposes, for example, would not be entitled to an exemption under longstanding FCC precedent.”
A Partisan Regulator and Partisan Shows
On Feb. 2, shortly after the FCC’s guidance, Talarico appeared on “The View,” an afternoon talk show that runs on ABC stations. Days later, Fox News reported—citing an anonymous FCC source—that the agency would launch an investigation into the show for possibly violating the equal time rule. “Fake news is not getting a free pass anymore,” said the source, using language that sounded a lot like Carr himself.
Then came Colbert. The following day, CBS put out a statement taking slight issue with Colbert’s description of events. CBS claimed that it had informed the show that the interview could trigger the equal time rule and that it had “presented options for how the equal time for other candidates could be fulfilled” but that the show decided instead to put out the interview online “rather than potentially providing the equal-time options.”
Carr and CBS were soon awash in criticism. “The FCC is engaged in a campaign of censorship and control,” wrote Anna Gomez, the sole Democratic FCC appointee. “They may not have ordered The Late Show interview pulled. But when the government interferes in editorial decisions, broadcasters are forced to self-censor or push back. CBS chose not to push back.”Talarico said that “[c]orporate media executives are selling out the First Amendment to curry favor with corrupt politicians.”
CBS and its owner, Paramount, have earned such suspicion. As detailed in Lawfare’s post-Kimmel piece, Paramount has a formidable history of kowtowing to Trump—which some have alleged is why CBS decided not to renew Colbert’s contract; his show ends in May. More recently, Paramount launched an effort to acquire Warner Bros. Discovery, the parent company of (among much else) CNN. The acquisition will require regulatory approval, and—until Netflix bowed out days ago—Warner Bros. Discovery had other suitors. Paramount has been highly motivated to kiss up to Trump—which likely explains why it recently agreed to distribute “Rush Hour 4,” the latest installment of a favorite Trump film franchise, at the president’s request after it had difficulty finding a distributor.
But here, Carr would seem to have a point. Colbert’s show is plainly ideological in its choice of guests. According to online compendiums of show guests, Colbert has hosted current or prior U.S. electoral candidates 30 times in 2025 and 2026. All but one were Democrats. And the remaining one is the exception that proves the rule—Adam Kinzinger, a former Republican congressman who broke with Trump, served on the Jan. 6 committee, and endorsed Kamala Harris for president in 2024.
The equivalent numbers for “The View” reflect a similar imbalance: 31 to 4. And once again, the exceptions were telling: Reps. Marjorie Taylor Greene (twice) and Thomas Massie—following their well-publicized breaks with Trump on key issues—and Schwarzenegger himself, who had endorsed Harris.
Such numbers make it difficult to argue that the interviews qualify for the “bona fide news interview exception” given the FCC’s long-standing position, rooted in legislative history, that the selection of guests must lack a partisan purpose. While the FCC typically has been deferential in applying this standard—as in the Leno/Schwarzenegger decision—the staggering partisan imbalance makes it hard to say the shows qualify. (Colbert’s show, at least, used to be more balanced. In his show’s first two months on the air in 2015, his guests included GOP presidential candidates Jeb Bush, Ted Cruz, John Kasich, and Donald Trump—and John McCain as well.)
To be sure, Carr could have waited for a complaint to come to the FCC—the passive voice of “[c]oncerns have been raised” suggests the concerns were largely his own. Carr likely chose to act because the ideological imbalance on talk shows such as “The View” and “Colbert” tilts against his preferences. But his application of the facts to FCC precedent, and to Congress’s intent, appears to be accurate. Just as a stopped clock is right twice a day, a regulator with bad intentions occasionally gets one right.
What’s Next?
Given Carr’s motives, will he go further and wreak havoc? Probably not; it would be difficult to do so given the rule’s limited scope.
First, the rule applies only to broadcast stations. It does not apply to cable channels—such as Fox News—or to streaming services. Thus about 80 percent of total television usage, according to a June 2025 report, is excluded from the scope of the rule. Ditto for anything transmitted over the internet, smartphones, or satellite radio. Not a single podcast appearance, nor anything on social media, is subject to the equal time rule.
Second, it applies only to a “legally qualified candidate” for office. This obviously excludes politicians not currently running for office—and, less obviously, some who are. Pennsylvania Gov. Josh Shapiro, who had already announced his candidacy for reelection, appeared on “Colbert” shortly after the FCC’s January announcement without triggering equal-time concerns because he had yet to qualify for the ballot—indeed, the window to circulate and file nomination petitions had yet to begin. (Jon Ossoff, in the same boat as Shapiro, appeared on “Colbert” two days after Talarico without any drama.)
The bigger risk might be that Carr now chooses to call it a day. There’s an arena beyond television talk shows, yet within the FCC’s jurisdiction, where the partisan imbalance cuts in the opposite direction: talk radio. Dominated by conservatives like Sean Hannity, Mark Levin, and Glenn Beck, the medium seems vulnerable to the same objection about equal time. (Ken Paxton, a Republican candidate in the same race as Talarico, appeared on Hannity’s radio show in December.) Yet the January FCC notice mentions only television. Asked about this, Carr said, “There wasn’t a relevant precedent that we saw that was being misconstrued on the radio side.” The rubber will meet the road if and when a Democratic candidate requests equal time from a radio station and is denied. What will Carr do?
One might well wonder whether it makes any sense for Brendan Carr to be determining whether a talk show’s selection of guests is too partisan. Does the equal time rule still make sense in an era when broadcasting has less power than ever? This is a valid question—but not one for the FCC to decide. Congress may choose to revisit § 315 to amend it or scrap it entirely. Or broadcasters, upset at being held to standards that don’t bind the cable networks, internet, and streaming services that are steadily eating into their market share, may argue that the scarcity rationale can no longer justify the unique burden they suffer.
Repealing the equal time rule would prevent Carr or his successors from applying it with a thumb on the scale. But eliminating it would allow broadcasters to deploy their own thumbs. It is easy to imagine, for example, Paramount choosing to further appease Trump by replacing Colbert with his mirror image, a conservative who books only conservative guests.
If Democrats win control of one or both houses of Congress in the upcoming midterm elections, Carr’s FCC will surely be on their (very long) list of oversight targets. Whether and how the equal time rule figures on that list remains to be seen.
