Trump FCC investigates The View, reportedly says "fake news" will be punished

FCC recently issued equal-time warning to late-night and daytime talk shows.

The Federal Communications Commission is reportedly investigating ABC’s The View in what FCC Democrat Anna Gomez called an attempt to intimidate critics of the Trump administration.

“Let’s be clear on what this is. This is government intimidation, not a legitimate investigation,” Gomez said in a statement Friday night. “Like many other so-called ‘investigations’ before it, the FCC will announce an investigation but never carry one out, reach a conclusion, or take any meaningful action. The real purpose is to weaponize the FCC’s regulatory authority to intimidate perceived critics of this administration and chill protected speech.”

The FCC hasn’t announced the investigation but previously gave several indications that it would occur sooner or later. After pressuring ABC to suspend Jimmy Kimmel, FCC Chairman Brendan Carr said in September that it would be “worthwhile to have the FCC look into whether The View and some of these other programs” are violating the agency’s equal-time rule. The Carr FCC followed that up in January by issuing a warning to late-night and daytime talk shows that they may no longer qualify for the bona fide news exemption to the equal-time rule.

Fox News reported Friday that the FCC is launching an investigation into The View “amid the agency’s crackdown on equal time for political candidates.” A source at the FCC told Fox that the probe was triggered by the show’s interview with Texas Democratic Senate candidate James Talarico.

“Fake news is not getting a free pass anymore,” Fox News quoted its FCC source as saying. Fox said its source indicated that ABC would have to provide “equal airtime for Republican candidates on the ballot like incumbent Republican Texas Sen. John Cornyn and his primary rivals,” and for “Ahmad Hassan, the little-known candidate running against Talarico and [US Rep. Jasmine] Crockett in the Democratic primary.”

President Trump posted a link to the Fox News story on his Truth Social account. The investigation was also confirmed by Reuters, which reported on Saturday that a source said the FCC opened a probe into whether the “daytime talk show violated equal time rules for interviews with political candidates after an appearance by a Democratic Texas Senate candidate.”

We contacted the FCC today and will update this article if it provides any information on the reported investigation.

FCC fights Trump’s war against media

In July, a White House spokesperson called The View co-host Joy Behar an “irrelevant loser” after she said Trump was jealous of former President Barack Obama. Trump has frequently called on the FCC to revoke licenses from ABC and other networks. The FCC issues licenses to individual broadcast stations, not national news networks, but many affiliated stations are owned and operated by the network.

Although the FCC is classified as an independent agency under US law, Carr has declared that the FCC is no longer independent from the White House and made it clear he takes orders from Trump. While former FCC chairs Jessica Rosenworcel and Ajit Pai rejected Trump’s calls to revoke broadcast licenses from news organizations that Trump dislikes, Carr has repeatedly threatened station licenses on Trump’s behalf. During the Kimmel controversy, Carr said that stations could face fines or license revocations if they continued to run Kimmel’s show.

Gomez, the only Democratic commissioner on the FCC, urged “broadcasters and their parent networks to stand strong against these unfounded attacks and continue exercising their constitutional rights without fear or favor.” She said that despite the pressure the FCC is exerting with its equal-time rule, “the First Amendment protects the right of daytime and late-night programs to cover newsworthy issues and express viewpoints without government interference.”

As for The View, Fox News said it was told by its source that ABC owner Disney “never made an equal-time filing to the FCC regarding Talarico’s recent appearance, which would implicitly indicate to the FCC that Disney believes The View is bona fide news and would be exempt from the policy.”

Bona fide news exemption

The equal-time rule, formally known as the Equal Opportunities Rule, generally requires that stations giving time to one political candidate must provide comparable time and placement to an opposing candidate if an opposing candidate makes a request. The rule has an exemption for candidate appearances on bona fide news programs, and entertainment talk shows have generally been treated as bona fide news programs for this purpose.

The FCC Media Bureau’s January 21 public notice to broadcast TV stations said that despite a 2006 decision in which the FCC exempted The Tonight Show with Jay Leno from the rule, current entertainment shows may not qualify for that exemption. “Importantly, 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,” the notice said.

The Media Bureau’s January 21 notice said the equal-time rule applies to broadcast TV stations because they “have been given access to a valuable public resource (namely, spectrum),” and that compliance with “these requirements is central to a broadcast licensee’s obligation to operate in the public interest.”

The FCC notice got this detail wrong, according to Harold Feld, a longtime telecom attorney who is senior VP of consumer advocacy group Public Knowledge. The equal-time rule actually applies to cable channels, too, he wrote in a January 29 blog post.

“Yes, contrary to what a number of people think, including, annoyingly, the Media Bureau which gets this wrong in its recent order, this is not a ‘public interest obligation’ for using spectrum,” Feld wrote. “It’s a conditional right of access (like leased access for cable) that members of Congress gave themselves (and other candidates) because they recognized the power of mass media to shape elections.” The US law applies both to broadcast stations using public spectrum and “community antenna television,” the old name for cable TV, Feld pointed out.

This doesn’t actually mean that people can file FCC complaints against the Fox News cable channel, though, Feld wrote. This is because the FCC “has consistently interpreted Section 315(c) since it was added as applying only to ‘local origination cablecasting,’ meaning locally originated programming and not the national cable channels that cable operators distribute as part of their bundle,” he wrote.

Leno ruling just one of many

In any case, Feld said the Media Bureau’s “guidance ignores all of the other precedent that creates settled law as to how the FCC evaluates eligibility for an exemption on which broadcast shows have relied.” While the FCC cited its Jay Leno decision, Feld said the Leno ruling was “merely one of a long line of FCC decisions expanding the definition of ‘news interview’ and ‘news show.’”

The FCC started loosening its definitions of news shows and news interviews in the mid-1980s, Feld wrote. “In what many consider a landmark decision in 1984, the FCC held that the Phil Donahue Show—a daytime interview show—qualified as a bona fide news show and that interviews on the show were bona fide news interviews if they met the same criteria as those on traditional news shows,” he wrote. “The FCC rapidly broadened the range of shows to include mixed entertainment/news programs such as Good Morning America, Sally Jessy Raphael (much more ‘tabloid’ style), and Howard Stern (back when he was a ‘shock jock’ on broadcast).”

The long line of FCC decisions indicated that “the fact that a program included segments designed solely for entertainment did not automatically disqualify an appearance by a candidate from the exemption provided (a) the candidate was selected by the show for ‘newsworthiness;’ (b) the show was regularly scheduled (and therefore not a campaign event); and (c) the show controlled the interview questions and editing,” Feld wrote.

Feld said the FCC public notice indicates that under the current leadership, even traditional news shows might not be given the bona fide exemption if the FCC determines the show is “designed to ‘advance the candidacy’ of a particular individual.” If Carr punishes ABC or another network, the target might be able to prove in court that the FCC overstepped its authority. But as seen in the Kimmel episode, Carr doesn’t need to take any official action to cause a problem for a media company.

“As is often the case, the fact that a broadcaster would ultimately win if it ever got to court matters less than the pain selective enforcement causes,” Feld wrote.