FCC Rules that Howard Stern Has a Bona Fide News Interview Program

September 9, 2003. The Federal Communications Commission's (FCC) Media Bureau issued a Declaratory Ruling [PDF] that Infinity Broadcasting Operations' Howard Stern Show, famous for its on air garbage, constitutes a "bona fide news interview program", and is therefore exempt from the equal time requirements of 47 U.S.C. § 315.

While pundits and critics may condemn a finding that Howard Stern's program is "bona fide news", the FCC has a long history of granting "bona fide news" exemptions to the speakers of the vast wasteland of broadcast media. Moreover, under the Supreme Court's opinions, outside of the context of the Communications Act and the Federal Election Commission Act (FECA), mandatory equal time laws violate the First Amendment. In addition, the Court has not squarely ruled on the issue of whether the government may grant preferences for bona fide news, or an institutional press. Although, several opinions suggest that granting such privileges does violate the First Amendment.

Section 315 provides, in part, that "If 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: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any --
(1) bona fide newscast, (2) bona fide news interview, (3) bona fide news documentary ... shall not be deemed to be use of a broadcasting station within the meaning of this subsection."

The FCC's Declaratory Ruling states that "Initially, the Commission found only programs with traditional question and answer formats such as ``Meet the Press´´ and ``Face the Nation,´´ which were noted by Congress as examples of the kind of news interview programs in existence at the time the news exemptions were adopted, qualified as news interview programs. In 1984, in determining that bona fide news interview segments on the ``Donahue´´ show were exempt ..." The Declaratory Ruling goes on to state that "Since the Donahue decision, other news interview programs or segments thereof with unique and innovative format elements, such as the ``Sally Jessy Raphael Show´´, ``Jerry Springer,´´ and ``Politically Incorrect,´´ have qualified for the news interview exemption under Section 315(a)." (Footnotes omitted.)

The FCC provided more elaboration in its Staff Ruling [MS Word] in the proceeding titled "In re Request of ABC, Inc. For Declaratory Ruling", which is also known as the Bill Maher matter. (See, DA 99-2768, adopted December 9, 1999.) The FCC wrote that it is willing "to recognize varying less conventional interview formats as being consistent with Congress' overriding intent to increase news coverage of the political campaign process".

The FCC's ruling in this area consist of interpretation of the statutory language. However, the underlying premise may be that mandating equal time inhibits broadcasters from conducting any political interviews, or providing any political news, lest they be compelled by the FCC to give equal time to Larry Flint type candidates and Emily Litella type opposing viewpoints. Alternatively, there may be concerns regarding the First Amendment.

The Supreme Court generally does not permit government compelled speech, such as equal time requirements. For example, in Miami Herald Publishing v. Tornillo, 418 U.S. 241 (1974), the Supreme Court unanimously overturned a Florida statute that required newspapers to give free space to candidates who had been criticized by the newspaper. The Court wrote that "A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials -- whether fair or unfair -- constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time."

However, the Court has long held that the FCC may regulate speech within its domain, because of the notion of scarcity of spectrum. See, for example, Red Lion v. FCC, 395 U.S. 367 (1969).

Also, the Supreme Court has refrained from holding that the government may recognize or grant any privileges to any institutional press, or the news media (outside of the context of FCC and FEC regulation). For example, former Chief Justice Burger wrote in his concurring opinion in FNB v. Belloti, 435 U.S. 765 (1978), that "The very task of including some entities within the ``institutional press´´ while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England -- a system the First Amendment was intended to ban from this country."

Similarly, Justice Felix Frankfurter wrote in Pennekamp v. State of Florida, 328 U.S. 331 (1946), that "the purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. '... the liberty of the press is no greater and no less than the liberty of every subject of the Queen,' Regina v. Gray, (1900) 2 Q.B. 36, 40, and, in the United States, it is no greater than the liberty of every citizen of the Republic."

Federal election laws mirrors federal communications law. The FECA, which provides for the broad regulation of political contributions and expenditures, whether monetary or in kind, provides, at 2 U.S.C. § 431(9)(B)(i), that the term "expenditure" does not include "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate." Also, regulations promulgated by the FEC address "bona fide news".

However, the FEC has not always demonstrated as much forbearance as the FCC. For example, in In Re Compuserve, FEC Advisory Opinion No. 96-2, April 25, 1996, the FEC denied Compuserve's request that it be allowed to provide a venue for the publication of policy statements, of all federal candidates, on a non-partisan basis.