• by Wendy Davis , Yesterday

Federal Communications Commission Chair Brendan Carr has engaged in a "partisan censorship scheme" that "ignores Americans’ fundamental freedom of speech guaranteed by the First Amendment," Senator Richard Blumenthal (D-Connecticut) says in letters to the agency's media and enforcement bureaus.

Blumenthal writes that Carr has abused the agency's power to "harass broadcasters for critical coverage of President Trump and to favor partisan Republican politics."

The senator's letter comes just days after Carr said the agency was investigating whether ABC's "The View" violated the "equal time" rule by broadcasting an interview with Texas State Rep. James Talarico, who is currently seeking the Democratic nomination for U.S. Senate.

Carr disclosed the investigation into "The View" soon after Stephen Colbert said CBS pulled his interview with Talarico from the air due to concerns about the equal time rule. (The interview was made available on YouTube, where it has drawn nearly 9 million views to date.)

The equal time rule generally requires broadcasters that give free air time to a political candidate to offer all candidates for that office the opportunity for air time.

The FCC's implementing regulations require broadcasters to note the free air time in a filing; other candidates can then request equal opportunities from the broadcaster.

The rule has exceptions for "bona fide" newscasts, interviews and documentaries, and for decades the FCC has applied that exception to talk shows.

But last month the Commission said in new guidance that decisions regarding exceptions are "fact specific."

The agency also suggested in that guidance that broadcasters should ask the FCC Media Bureau to determine in advance whether particular programs are exempt from the equal time rule.

"The FCC has not been presented with any evidence that the interview portion of any late night or daytime television talk show program on air presently would qualify for the bona fide news exemption," the agency wrote.

"Any program or station that wishes to obtain formal assurance that the equal opportunities requirement does not apply (in whole or in part) is encouraged to promptly file a petition for declaratory ruling that satisfies the statutory requirements for a bona fide news exemption," the FCC added.

Blumenthal writes that the FCC's new guidance "willfully misinterprets and disregards decades of settled precedent."

In a series of decisions dating to 1984, the FCC has exempted programs including "The Phil Donahue Show," "The Jerry Springer Show," “The Howard Stern Show,” and "The Tonight Show With Jay Leno" from the equal time rule.

Blumenthal isn't the only one to criticize the FCC's January guidance.

FCC Commissioner Anna Gomez also called the guidance misleading, adding that it marks "an escalation in this FCC’s ongoing campaign to censor and control speech."

Harold Feld, senior vice president at the watchdog Public Knowledge, tells MediaPost that the portion of the guidance suggesting that broadcasters should obtain pre-clearance of programs that might carry interviews with candidates is a "direct reversal" of a 2003 decision exempting Howard Stern from the equal time rule.

The agency said in that matter: "Licensees airing programs that meet the statutory news exemption, as clarified in our case law, need not seek formal declaration from the Commission that that such programs qualify as news exempt programming."

Blumenthal is now asking the FCC to provide lawmakers with a host of documents, including information relating to the decision to investigate ABC, as well as records relating to the January guidance about the equal time rule.

The senator also is asking Paramount Skydance CEO and Chair David Ellison to provide information about communications with the White House and FCC regarding Colbert's interview with Talarico.

The senator is requesting responses from Paramount and the FCC by March 6.