Like it or not, the FCC’s equal opportunity rule must be enforced

It is hard to imagine political broadcasting legislation passed by Congress in the primitive mass media days of 1934 would be causing a stir in today’s digital age.  

Section 315 of the Communications Act of 1934 was a well-intentioned law designed to make sure newfangled broadcast media would be used fairly in political elections. Private commercial broadcasters operate on publicly owned airwaves, so the idea was those broadcasters should provide “equal opportunity” for political candidates’ use of those stations. 

The law has been generally followed over the years with little controversy. An update to Section 315 was made in 1960 to exempt “bona fide” news programs from the requirements, a salute to journalistic judgement and independence. That exemption covered only news and public affairs programs, not comedy shows, gabfests or other content that sensible people would define as “entertainment.” 

The Federal Communications Commission recently tried to get ahead of upcoming controversies for the 2026 general election year. The FCC issued a public notice statement to broadcasters in January, detailing existing regulations and warning that non-news programming is not exempt from equal opportunity enforcement. 

It seems, however, that everything sparks controversy in this era of divisive political brawling. So, naturally, Section 315 is now a lightning rod for partisan argument.  

Last month’s fuss over Stephen Colbert’s “The Late Show” interview with Senate candidate James Talarico was an example of unnecessary Section 315 outrage. CBS lawyers advised Colbert against putting the Talarico interview on CBS broadcast airwaves, lest the equal opportunity provisions kick in. Colbert immediately went in to righteous outrage, and left-wing political organizations began fundraising off the supposed censorship. 

The Colbert-Talarico interview was conducted anyway, but disseminated over the internet — not broadcast airwaves. Digital outlets and cable are not subject to Section 315 enforcement. Talarico probably got more publicity over the controversy than if the segment had just aired on regular television. And Colbert got to define himself as a censorship martyr. 

Of course, Colbert and CBS could have avoided controversy by just offering “equal opportunity” time to Talarico’s Texas primary opponents, Congresswoman Jasmine Crockett and Ahmad Hassan. But who wants to follow rules promoting fairness when stirring up a storm by playing favorites is so productive?  

It is worth noting that the FCC did NOT prevent the Talarico interview. CBS executives did that on their own, which they have every right to do. Colbert is an employee of CBS and subject to its administrative decisions, at least until his show ends in May. Even Crockett pointed out that the FCC wasn’t censoring CBS. 

The equal opportunity provision of Section 315 also received a flash of attention in the waning days of the 2024 presidential election. NBC shamelessly tried to promote Democratic candidate Kamala Harris as a pop culture star with an appearance on “Saturday Night Live.” The Trump campaign cried foul, and NBC rushed to give Donald Trump appearance time elsewhere on NBC programming. The matter was then forgotten in the election aftermath.  

Reports now indicate that ABC’s chatfest “The View” is being probed by the FCC for Section 315 concerns. While “The View” is produced under the umbrella of ABC’s news division, it could hardly qualify as exempt under the FCC’s definition of a bona fide journalism program.  

The issue here is not that late-night comedians want to push personal political stances or that gabbers on a daytime coffee klatch think they are all Edward R. Murrow. The First Amendment protects those delusions and that brazen partisanship. But when it comes to promoting candidates for political office, the FCC is obligated to enforce the congressionally approved Section 315 rules. 

Look for more of this equal opportunity haggling during the current primary season and through the midterm elections in November. Section 315 remains on the books, and it is clear FCC Chair Brendan Carr is taking a different approach on election fairness than his lax predecessors over the last several decades. Those FCC chairs looked the other way while comedians and talk-show hosts claimed exempt status, making a mockery of Section 315’s original intent. 

None of this discussion overlooks the notion that Section 315 might well be a dinosaur in today’s rhetorical sphere. The political landscape has changed a lot over 92 years. Elections are now executed through social media, streaming channels, podcasts and cable — all outside the reach of Section 315 and FCC regulation. And after years of FCC disregard, Carr’s efforts to re-regulate will be difficult, indeed.  

But changing or eliminating Section 315 is not for Carr or even the courts to manage. That will have to be done with congressional legislation — and it is a pretty sure bet those political incumbents like Section 315 just the way it is.  

Jeffrey M. McCall is a media critic and professor of communication at DePauw University. He has worked as a radio news director, a newspaper reporter and as a political media consultant.  

Copyright 2026 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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