Two developments happened since I posted my Insanely Long Field Guide to the Fox29 license renewal challenge that potentially bear on the challenge. The first is Rupert Murdoch’s retirement announcement. The second is the Administrative Law Judge Decision in the other pending Character Policy case. As discussed below, neither really impacts the challenge to Fox29 — at least not at the hearing determination stage.
I explain why below.
In July, the Media and Democracy Project filed a Petition to Deny the license renewal of Fox29 (WTFX-TV) in Philadelphia. The Petition rests on a particular feature of Federal Communications Commission (FCC) broadcast licensing law. Every 8 years, a broadcast station must apply to the FCC to renew its broadcast license, which requires a showing that the licensee has — among other things — the requisite character to hold a broadcast license. The scope of behavior the FCC will consider under its 1986 Character Policy and subsequent amendments is fairly narrow — it does not, for example, include littering or making a nuisance of oneself. But it is not entirely limited to behavior involving the broadcast license itself. It includes any conduct that calls into question whether you can be trusted to run a broadcast station under the FCC’s rules and as a “trustee of the community of service.” In other words, the FCC can send you to the Group W Bench (here, a hearing) where, to paraphrase Arlo Guthrie, they decide if you are moral enough to hold an FCC broadcast license.
MAD challenges renewal of Fox29 on the grounds that Fox Corp, the ultimate owner of Fox Television Broadcast Stations (FTBS) and Rupert Murdoch and son Lachlan (principle shareholders who have previously been found to have de facto influence or control over FTBS as well as Fox Corp.) lack the requisite character to hold a Commission broadcast license. They point to the settlement in the Dominion defamation case, where Fox Corp. and Murdoch as the named defendants acknowledged (but did not formally admit to the truth of) the earlier findings of the district court that they had made false statements about the outcome of the 2020 election on Fox News Cable Network and the role of Dominion Voting System machines in supposedly “stealing” the election. (They attach the relevant decision and press statement to the Petition). This conduct, they argue, violates the Commission’s Character Policy — making Fox Corp and Murdoch inherently unfit to act as a broadcast licensee. FTBS responds in opposition that this is all irrelevant because none of the behavior involved Fox29 and that refusing to renew the license would violate the First Amendment. MAD replies that actions that violate the Character Policy do not need to involve the licensee, and that holding licensees accountable under the Character Policy does not violate the First Amendment, as it is long settled that there is no First Amendment right to a broadcast license and that the Commission has an obligation to ensure that all license grants serve the public interest. (See NBC v. United States and Red Lion Broadcasting Co. generally).
Most people who have paid attention to this have dismissed the Petition as frivolous and a waste of time. But the Petition raises some interesting, novel questions under the law. It also has attracted support from a number of folks involved in the formation of Fox as the fourth TV network, including Preston Padden (Fox’s main lobbyist in the 1980s and 90s), Ervin Duggan (former FCC Commissioner) and William Kristol (conservative pundit and former frequent guest on Fox), Jamie Kellner (first President of Fox Television) and former FCC Chair Al Sikes. I also note that the FCC has taken the highly unusual step of opening this license renewal hearing to public comment. To be clear, this step by the FCC does not indicate that the FCC has made any determination about the merits, but is a recognition that there is a public interest in allowing people to file in favor and against.
My point is that while getting the FCC to hold a hearing — let alone deny Fox29’s application for renewal — is certainly a long shot given how the FCC works, this is not a frivolous claim. To the contrary, it raises some very interesting questions from an FCC law perspective. So it is worth actually walking through the process here and what questions the FCC would need to resolve either to dismiss the Petition to Deny or to Designate for a Hearing. Because ultimately, unless the FCC finds a procedural deficiency, the FCC is going to have to actually write up a real and binding decision with real consequences and real precedential value.
Full disclosure, I’ve known and been friends with Preston Padden for a long time, and I rather hope this gets to the hearing phase if for no other reason than It Would Be Fun. But I will also say up front (and for reasons I will elaborate in below), I find it extremely unlikely the FCC will grant on the Petition. Still, it cannot get out of addressing the interesting questions raised by this case.
More below . . . .
I’m getting email about Comcast migrating MSNBC and CNN out of its expanded tier to a higher priced tier while keeping Fox News on expanded tier in a number of markets. If this is actually going on, I’m mightily curious.
Such shifts do not happen casually. They are generally the product of fairly intense negotiations among cable operators and programmers. They also require advance notice to viewers. This makes me extremely reluctant to impute a political motive here. If NBC and Time Warner (the owners of MSNBC and CNN respectively) were being screwed against their will over a political agenda, I would have expected to hear it in DC. What mainstream coverage there is of this suggests it is part of Comcast’s general digital upgrade. So we should expect to see all remaining channels migrated off to the higher priced tier eventually. While that will constitute a significant rate increase, it will put everyone back on equal footing. Besides, as the DC Circuit instructed us all last month, cable operators have no market power and cannot influence the programming market, whatever your personal experience to the contrary may be.
So if anyone has more info on this and would like to either comment below or talk to me, I’d love to hear about it.
I suppose I should add that unless Comcast failed to give proper notice to subscribers before changing their channel line up, their is nothing the FCC can do about it, so don’t bother complaining.
Stay tuned . . .
Other news stations might just run a “aw… look… cute video” segment. Nope, not Fox News of Dallas… they have to turn it into a controversy!
This cute video of someone playing “whack a kitty” (really, just gently pressing a kitty’s head down in a box they are playing in, with sound effects) raised the ire of the MSPCA… err… no, not them. Uhhh… PETA? Nope, not them either. It really seemed to mildly upset noted animal rights advocates such as “supersmithy on I-Love-Cats.com’s forum” and “Stud u like” on Digital Spy.
Well, there you go! If some guy(?) named “Stud u like” on some forum somewhere doesn’t like it, it must be controversial!
That’s some darn fine reporting work there, Lou.
Pundits and talking heads have debated the Bradley Effect (or, as we locals call it, the Wilder Effect) and whether Obama’s current lead in the polls represents false positive. Even before Obama, there existed considerable evidence that the Bradley Effect was fading. Having canvassed this weekend in VA, I have concluded that it has pretty much vanished.
Why? Because conservative talk radio and Fox News have given voters the tools they need to say things that might sound racist, but don’t really make you a racist for saying them. Whatever one may think of this as an argument, it has had the enormous benefit of eliminating the polling problems associated with the embarrassment of being mistaken for a racist when you are simply saying things that only sound racist.
More below . . .
So here I am at the 2008 National Conference on Media Reform, and I have the most exciting news: the FOX NEWS TEAM IS HERE for Bill O’Reilly. (No doubt he is in town to endorse Al Franken in his bid for the Senate.)
Woo hoooo!!!! Talk about your status symbols. We have really made the big time if Poppa Bear himself has come to town to pay his respects. As for me, it’s as if the Goodfeathers had fallen into a catnip truck then accidentally wandered into a cat show.
I understand that some folks, however, may be nervous talking to the good folks at Fox News. Here is my advice: keep confusing O’Reilly with Stephen Colbert.
So for example:
Fox News: Can we interview you for O’Reilly Factor.
Person: Great! I’ve always wanted to be on the Colbert Show!
FN: That’s not us. This is Bill O’Reilly.
Person: Oh yeah. I saw him on the Colbert Show once.
FN: Anyway —
Person: Do you think O’Reilly can get me on Colbert?
FN: No. Now —
Person: Because Stephen Colbert is just a god, you know. A. Total. God. O’REilly should definitely try to get on Colbert again. You know, for the Colbert bump.
FN: We want to talk to you about —
Person: Did you know Stephen Colbert was just given the distinguished “Understandable Vanity Award by the Princeton University Class of ’08 (Go Tigers!). Did O’Reilly ever go to college?
(Persist until FN people quit in disgust.)
Person: Wait! Come back! Does this mean O’Reilly won’t introduce me to Stephen Colbert?
Stay tuned . . . .
The awe-inspiring thing about the progressive reform movement is how many small organizations of dedicated people are making a major difference in the word.
Below, I reproduce a recent end of year letter from WIMN — Women In Media And News. These women run a small and incredibly effective shop. If you want to support organizations that are making a difference, these are good people who can really use the money.
Stay tuned . . . .
For those wondering about the dust up over Google dropping Ads from Senator Susan Collins (R-ME) because she used Moveon’s trademark in her ads, I reproduce below my post on the Public Knowledge blog. I don’t usually to that kind of “repurposing” of my blog content, but this one seemed reasonably important.
I just got a phone call. It was Fox News calling to tell me “shocking news about Hillary Clinton.”
I wonder who they had to pay to get around the fact that I’m on state and federal “do not call” lists.
And these guys just bought the Wall Street Journal.
See Keith Oberman give a passionate, well spoken condemnation of the efforts by Bush, the folks at Fox News, and the rest of the Republican “noise machine” to rewrite history. Ten minutes long, but well worth it. Click here.
Would that we could find such willingness to challenge the powers that be on broadcast networks.
Stay tuned . . .
