There was an awkward moment this morning on Fox when President Donald Trump announced that he would have a regular appearance on Fox and Friends every week at this time. That came as obvious news to the hosts who repeatedly told the President that there is no such understanding. The exchange, however, raises a legal question of whether such a regular show with the President would run afoul of federal laws requiring equal time for political candidates. The answer is likely no but it is not clear if Joe Biden would relish a regular segment on Fox since he has largely avoided such interviews.
In fairness to President Trump, the hosts said that they wanted to do another segment. However, Trump responded that “We’ve agreed to do it once a week in the morning, and I look forward to it.” Host Steve Doocy said “I haven’t heard that” and later said “You may want to do it every week, but Fox is not committed to that. We’re going to take it on a case by case basis.”
The segment raises some interesting legal and political issues. The equal-time rule mandates that U.S. radio and television outlets should provide an equivalent opportunity to opposing political candidates. That has been a policy since the Radio Act of 1927. However, equal time is more of a rule that controls the selling of political advertising. It is less clear and more aspirational when it comes to interviews.
The Communications Act of 1934 is the basis for the FCC rule:
Section 312 [47 U.S.C. §312] Administrative sanctions.
(a) The Commission may revoke any station license or construction permit –
(7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a non-commercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy.
(f) For purposes of this section:
(1) The term “willful”, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act or by a treaty ratified by the United States.
(2) The term “repeated”, when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day.
The Federal Communications Commission abolished The Fairness Doctrine in 1987.
Even without the “Fairness Doctrine,” media organizations try to follow the equal-time rule. However, an interview is not the purchase of broadcasting time. It would be hard, particularly with a sitting president, to mete out equal time when the media has to cover official acts and presidents mix political and policy elements in their public comments.
Moreover, even if Fox were bound by strict equal time obligations, it would mean that Fox would commit to a weekly Joe Biden segment. In truth, that would be a dream come true for Fox and a nightmare for many Democrats. So long as Biden is offered equal time, the rule is effectively satisfied. Fox could argue that, unlike the defunct Fairness Doctrine, it can insist on the candidates themselves rather than surrogates for offering equivalent time and opportunity.