ABC Says FCC Violating Its Free Speech Rights as Agency Moves to End Disney-Owned Network's Partisan Promotion

ABC on Friday accused the FCC of a “chilling effect” to punish political content they disagree with as the agency seeks to end broadcast networks from promoting partisan candidates.

ABC filed a petition with the commission that makes the case that The View amounts to a “bona fide” news program.

“‘The View’ has been broadcasting under a bona fide news exemption granted to it more than twenty years ago… The Commission has taken no action over the last two decades to modify or overturn the Declaratory Ruling and there is no basis for doing so now,” ABC wrote in its filing to the FCC.

“The Commission’s actions threaten to upend decades of settled law and practice and chill critical protected speech, both with respect to ‘The View’ and more broadly,” ABC continued.

A government source said that Disney’s statement was “absurd on its face.”

“Ron Burgundy has a stronger claim of being ‘bona fide news’ than Whoopi Goldberg,” the source said, in a reference to the Will Ferrell character from Anchorman.

The FCC, led by Chairman Brendan Carr, has move to require broadcast network to adhere to the statutory public interest rules that require equal time to political candidates. This includes late-night and daytime talk shows on the broadcast networks.

Daniel Suhr, the president of the Center for American Rights (CAR), said that for everone that believes that Carr is on a “crusade” against these companies, he said that Carr is giving them an opportunity to showcase their bona fide news programs.

Surh explained, “He’s following the process and giving them an opportunity to show that they fit within the statutory exemption. My view is, they don’t, they never have. Uh, at least, you know, of late, the last few years. And the James Talarico appearance is just the latest in a long-standing series of blatantly partisan misuses of the airwaves on the part of ABC’s view.”

Suhr added that it makes it hard to believe that many of these talk shows, including The View, when the ratio of Democrat to Republican guests are “30 to 1.”

He added, “It becomes immediately obvious, as soon as you look at the lists of guests, that it is not a news program, it is a partisan circus. And for them to claim to be a bona fide news program, is contrary to what Congress intended, its colors to contrary to how the commission is traditionally interpreted it.”

Even those on the leftist side of the aisle agree.

Gigi Sohn, cofounder of Public Knowledge and former senior staffer for then-FCC Chairman Tom Wheeler, wrote:

In my baby lawyer days working at the Media Access Project with Andrew Schwartzman, we litigated some cases where we felt that the Federal Communications Commission gave too many “bona fide news interview” exemptions to shows that didn’t really deserve them – the long-cancelled McLaughlin Group being one of them. We didn’t challenge the ruling that the interview part of the Jay Leno show was exempt, but it wouldn’t have surprised me if we had. Why? Because if what is really an entertainment show can provide opportunities to candidates for public office (and they must be a candidate – the rule doesn’t apply to regular old members of Congress if they aren’t running) to have a 15 minute free campaign ad, then the law has no meaning. Would the public be better or worse off if James Talarico had appeared on Colbert Monday evening and CBS had to give his opposing candidates time to do the same? And just a reminder – “equal time” is a misnomer. The other candidates wouldn’t have a right to appear on The Late Show, they would just have the right to be exposed to a similar sized audience. This is what happened when Trump complained about Kamala Harris’ appearance on SNL – he got time not on the same show, but on a NASCAR broadcast.

The Lawfare blog has said that Carr’s interpretation of the equal time rule is on a “stronger legal footing than his interpretations in the [Jimmy] Kimmel saga.”

Suhr continued, “The public’s interest is a healthy two party system, the public’s interest is knowing the facts, and hearing a variety of views and perspectives, the public interest is a robust marketplace of ideas, and the FCC is doing its job and actually protecting core 1st Amendment values.”

He added, “When it points out that the networks are falling short of those standards. The other thing to keep in mind in the context of the, and the best way to remember that is that the 1st amendment rights of the broadcasters aren’t what’s important.”

Suhr said, “It’s the 1st Amendment right of the viewers. It’s the whole you read the whole ABC petition and it’s all about ABC’s rights.”