Brendan Carr’s ‘equal time’ curveball crashes the midterms

The midterm elections that could upend the final years of Donald Trump’s presidency face a new complication — his Federal Communications Commission chair.

Brendan Carr’s attempt to resurrect enforcement of the FCC’s nearly century-old “equal time” rule has already set off a chain reaction that kept Stephen Colbert’s interview with Texas Democrat James Talarico off the air in February. But the rule’s impact on elections could be even more sweeping, media law experts and campaign veterans of both parties told POLITICO, after Carr warned of potential penalties for television stations that fail to be even-handed in offering airtime to political candidates.

One result, some fear, could be the virtual banishing of candidate interviews from broadcast TV talk shows.

Democrats said they expect their candidates to take the immediate brunt if the FCC’s pressure causes TV programs to avoid interviews that could cause trouble. Some Republicans, meanwhile, worry that a future Democratic-led FCC will turn the same rules against one of the GOP’s longtime media bastions: conservative talk radio.

For Democrats, concerns about Carr’s tactics are heightened by his openly combative pro-Trump persona, history of launching investigations of liberal-leaning programs and repeated threats to pull the licenses of outlets he accuses of “distorting” the news — a threat he revived over the weekend while reposting Trump’s complaints about news coverage of the war in Iran. Carr’s efforts have gotten praise from Trump, who wrote Sunday night that he was “thrilled” to see his FCC chair “looking at the licenses of some of these Corrupt and Highly Unpatriotic ‘News’ Organizations.”

While Carr’s remarks on war coverage were driving headlines last weekend, his efforts to reimpose enforcement of the commission’s equal time rules threaten to have a more tangible effect on the interviews that millions of viewers see during the midterm campaign.

The issue reflects one of the paradoxes of the modern media environment, as broadcasters continue to fall under federal regulations from the early radio era while cable networks, podcasters, streamers and social media influencers enjoy free rein. For Democrats whose candidates failed to match Trump in engaging with digital media in 2024, network shows like those hosted by Colbert and Jimmy Kimmel are one of few friendly havens where they can take their message to a mass audience ahead of midterms that will decide control of Congress.

Carr has pledged fairness in how he enforces the rules — despite saying in January that his warnings about the equal-time rule were not aimed at talk radio.

“Let's just apply the law in an even-handed, neutral way,” Carr told POLITICO in late February. “That's exactly what I'm doing.”

Democrats don’t buy it.

“What you're going to see is a chilling effect that I guarantee will not be applied across the board to candidates of both parties,” said Ian Russell, a veteran campaign operative at Beacon Media who formerly served as deputy executive director and national political director at the Democratic Congressional Campaign Committee.

Veteran communications attorney Andrew Jay Schwartzman said the equal time rule shouldn’t normally pose any serious burden for broadcasters, but that Carr’s approach to his job has so politicized the regulatory landscape that it’s likely to chill stations from carrying candidate interviews.

“I think that we're going to see many fewer appearances,” Schwartzman said.

‘More speech’?

At issue is a 1934 law requiring broadcast stations that put a political candidate on the air to offer comparable time to the candidate’s rivals. While broadcasters must provide this time if a candidate wants it, it does not necessarily have to be on the same program or format.

For decades, the FCC’s enforcement has left plenty of room for daytime and late-night TV to feature political candidates in marquee moments, such as Bill Clinton playing the saxophone on “The Arsenio Hall Show” in 1992, George W. Bush reading a David Letterman Top Ten list in 2000, and Trump joking with Jimmy Fallon (and Colbert) during the 2016 campaign. Twenty years ago, the commission declared that Jay Leno’s chats with guests on “The Tonight Show” qualified as “bona fide news interviews,” exempting them from the equal time requirements.

But after entering the White House in 2017, Trump complained that late-night TV catered to Democrats and that more Republicans should get equal time. And this January, Carr warned late-night and daytime TV talk shows that they don’t necessarily qualify as “bona fide news” — especially if their programming decisions are “motivated by partisan purposes.”

Specific programs and TV stations that think they merit the news exemption should petition the FCC for a ruling to that effect, Carr said. Otherwise, stations carrying these interviews will have to file public notices with the commission disclosing the candidates’ airtime.

Carr disputes that he is trying to quash political speech.

“The whole idea here is more speech, not less,” Carr told POLITICO at a Feb. 18 press conference. “You can have more candidates on. There is zero censorship.”

But critics such as Sen. Brian Schatz (D-Hawaii) say Carr is applying the law in a way that hurts Democratic candidates attempting to gain visibility.

“I think that he’s a partisan, and a partisan is not supposed to interpret the federal law in a way that benefits his allies and punishes his enemies,” Schatz told POLITICO.

Colbert’s Talarico interview fell victim to the rule on Feb. 16, when the “Late Show” host told his viewers that CBS’ lawyers had forced him to sideline a planned conversation with the Texas Democratic Senate candidate. (Instead, the interview appeared on the show’s YouTube channel). The flap came a little more than two weeks before Talarico defeated Rep. Jasmine Crockett in the Democratic primary.

Carr disputed the idea that he was to blame for blocking the interview, telling reporters that Colbert could have aired it as long as the network gave comparable time to Talarico’s opponents. CBS made the same argument in its response to the furor. (Colbert replied that he had already had Crockett on his show twice.)

The FCC had separately opened an investigation into whether the ABC daytime talk show “The View” violated the equal time rule when it aired its own interview with Talarico, Fox News reported in early February. That probe is ongoing, Car has said.

Consequences for violating the rule would likely be minimal under the law, which would penalize only broadcasters showing patterns of willful violation, Schwartzman said. “Everybody knows this is all bluster,” he said.

Carr, though, has phrased some of his warnings as cautions to TV stations whose broadcasting licenses come up for renewal: “The law is clear,” he wrote in his complaint last weekend about allegedly skewed news coverage. “Broadcasters must operate in the public interest, and they will lose their licenses if they do not.”

It’s ultimately impossible to know how many interviews may never happen as a result of the guidance, or how many more TV hosts will just host candidates on platforms like YouTube to avoid triggering the equal time requirement.

Daniel Suhr, a conservative lawyer and Carr supporter heading the Center for American Rights, said the FCC guidance could reshape the media landscape by boosting Republicans and preventing TV hosts from advancing their own personal political agendas. He said he hopes it leads to more voices on air but acknowledged a possibility that the hosts “decide to quit playing the game and take the ball home.”

Either way, Suhr said he believes Carr is on the right track.

“We have a window, I think, to make real, permanent, structural change in the media landscape,” he told POLITICO.

Broadcasters appear to be wrestling over how to comply.

During a recent Breitbart event, Carr told attendees that Disney is defending “The View” as a bona fide news program to agency officials. But at the same time, he said, some local TV stations in Texas have filed equal time notices with the FCC over its Talarico interview — “signifying that they don't necessarily agree with Disney that ‘The View’ qualifies.”

In two of those public notices, the ABC affiliates in Sweetwater and Amarillo, Texas, wrote that Talarico had appeared on “The View” for “a total period of 10 minutes and 6 seconds” on Feb. 2, and that a photo of Talarico and Crockett “appeared twice for approximately 7 seconds.” A third station based in southwest Oklahoma filed an FCC notice disclosing two interviews that "The View" had conducted with Crockett and Talarico in January and February, respectively, despite noting that "ABC classified these programs as bona fide interview programs."

Democrats, who have limited means to challenge Carr’s agenda, said they worry that he wields too much leverage over broadcasters, some of them owned by large conglomerates that have mergers and other regulatory business in front of the commission. They also point to a furor last fall in which Carr’s threats to enforce a rarely used policy against “news distortion” prompted ABC to briefly suspend Kimmel’s late-night talk show.

Broadcast lawyers are “worried about what their bosses would do — because they're playing on a different playing field,” said Russell, the former DCCC political director.

Some Democrats in the midst of what will likely be nail-biter campaigns for Congress don’t trust Carr to oversee the TV markets where they’ll be trying to draw attention.

“It appears to me that the FCC chair is a political hack wielding the commission's power to run little errands for the president,” Democratic Sen. Jon Ossoff, who is facing a tough reelection fight in Georgia, told POLITICO.

‘Democrats will remember’

Some Republicans fear Carr’s strategy will backfire on the GOP if Democrats regain power in Washington and apply the same equal time pressure to talk radio, which remains a bastion for conservative content.

Conservative radio programming became prominent in the 1990s with hosts including Rush Limbaugh. Top voices such as Sean Hannity, Glenn Beck and Mark Levin still attract millions of listeners. Conservative radio was also the launchpad for former Vice President Mike Pence and former FBI Deputy Director Dan Bongino.

“I think we will be writing the obituary of conservative radio,” one former Trump campaign official, granted anonymity to discuss sensitive concerns, told POLITICO. “And I think the autopsy report will say, ‘Murdered by Brendan Carr.’”

Some Democrats acknowledge that talk radio is a politically enticing target given the precedent Carr is setting.

“Democrats will remember,” said Russell, the former Democratic official. “If the deal was, ‘I will give up the legacy media that is losing viewers if I can take out your media that is the beating heart of your movement,’ I'll take that deal.”

That risk is also on the minds of some of the conservative movement’s top radio personalities.

During a recent broadcast, Glenn Beck told listeners he would stop interviewing political candidates on the air if Democrats enforce the equal time rule on radio. Hannity said in January that he opposes further regulation of broadcast content, adding that the government should not interfere with where people choose to get their information.

When asked about the radio scenario, Carr told POLITICO that “that’s not a concern for me.” Republicans, he said, should apply the law based “on our best judgment of where things stand,” not let fear of eventual reprisals deter them.

“Too many Republicans are falling into this trap of, when we have the gavel, we should take it and bury it in the sand and never use it out of fear that Democrats are going to weaponize it when they get it again,” Carr said.