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A Medium Length Summary Of Harold Feld’s 'Insanely Long Field Guide To The Fox29 Philadelphia License Renewal Challenge'
It’s important for our pro-democracy challenge to be explained, clearly and in-depth.
I have a bumper sticker I got on a trip to Maine several years ago. It reads: words become actions, actions become habits, habits become character, character becomes destiny. I never put it on my car and wondered over the years why I was keeping it at all. But I think it finally found its purpose in helping to contextualize MAD’s Fox action.
In July, the Media and Democracy Project filed a Petition to Deny with the Federal Communications Commission, essentially asking the FCC to hold a hearing to determine if the Murdochs and FOX should be allowed to renew the broadcast license they hold for their FOX29 Philadelphia TV station. MAD’s action rests on the notion that the Murdochs' vile habit of spreading lies about the 2020 election on their Fox News Cable Network, lies they acknowledged and that displayed shockingly low moral character, destined them to lose the ability to broadcast over the public airwaves.
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Our effort has been met with some confusion and, of course, lots of bad faith from FOX and its sympathizers (Ted Cruz has twice called us a “radical left-wing group”). And to be fair this is all very in the weeds for most Americans, even though the Petition hinges on clear rules and precedents existing at the FCC. So it’s important for our pro-democracy effort to be explained, clearly and in-depth, so that the public can better understand our attempt at holding media oligarchs accountable for lies that damaged America.
Harold Feld recently did just that with his piece, My Insanely Long Field Guide to the Fox29 Philadelphia (WTFX-TV) License Renewal Challenge. Harold is Senior Vice President at Public Knowledge, a leading telecommunications consumer rights organization. His invaluable breakdown of our action is informed by his FCC expertise, clarifies many public misconceptions, and is…insanely long. You should definitely click the link above and read Harold’s work in full, but if you just want the Cliffs Notes here is a summary, with excerpts, of Harold Feld’s insanely long (and excellent) field guide.
WHAT’S MAD’S ARGUMENT?
FELD: “[MAD] 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. This conduct, they argue, violates the Commission’s Character Policy — making Fox Corp and Murdoch inherently unfit to act as a broadcast licensee.”
BUT REALLY, WHAT DO FOX NEWS LIES HAVE TO DO WITH FOX29 PHILADELPHIA?
FELD: “In theory, it’s not just about what you do with the station. You have to show that you are the sort of person who can be trusted with holding a broadcast license. That’s not just something the FCC made up. Section 308(b) of the Communications Act requires the FCC to determine, among other things, whether an applicant has the requisite “character” to hold a broadcast license. The character policy does not go to the conduct of the broadcast station but to the character of the licensee him/her/itself. You can, in theory, be doing a perfectly fine job of running the station but still lose your license because you do something that shows you don’t have the requisite moral character to hold a broadcast license.”
DOES THIS ACTION VIOLATE THE 1ST AMENDMENT?
FELD: “I’ve seen a number of hot takes that say that the FCC finding that Murdoch lacks the necessary character to hold a license would violate the First Amendment. But questions of license renewal are not generally subject to First Amendment scrutiny because, as explained in Red Lion Broadcasting, there is no First Amendment right to hold a broadcasting license. …But again, the issue isn’t simply whether the FCC likes or doesn’t like what Fox News said. The issue is whether the adjudication that Fox Corp. — parent company of both Fox News and Fox Broadcasting (and therefore ultimate holder of the license for WTXF-TV) — made false statements sufficient to show they cannot be trusted to hold an FCC license under the Character Policy, and whether the Murdochs exercise sufficient control that this conduct should be attributed to them. Those questions do not raise First Amendment issues (see Sanders Bros v. FCC and NBC v. United States).
But in the world of broadcasting, the First Amendment right of listeners to receive true and accurate information is also important. It goes directly to the need for accurate local news necessary for democracy and self-governance. ‘A government purpose of the highest order’ according to Turner Broadcasting. That’s why we have the Character Policy in the first place…
…Bottom line — as long as the FCC makes its adjudication on the basis of the Character Policy and precedent, it does not violate the First Amendment to deny the license renewal.”
HOW’S THIS PLAYED OUT FOR MAD SO FAR?
FELD: “The Petition…has attracted support from a number of folks involved in the formation of Fox as the fourth TV network…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…
This is not a frivolous claim. To the contrary, it raises some very interesting questions from an FCC law perspective…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…[The FCC] cannot get out of addressing the interesting questions raised by this case.”
WHY IS THIS PETITION UNIQUE?
FELD: “Does the adjudication of facts in the Dominion defamation case (and subsequent acknowledgment by Fox Corp. in their post-settlement statement) rise to the level necessary to show dishonesty/lack of candor sufficient to raise the question of character sufficient to require a hearing?
…This is, to put it mildly, a novel case. Generally, actions by corporate affiliates aren’t imputed to other parts of the corporation — in part because they are generally run by different people and engage in independent decision making. But the Dominion case found that Fox Corp and the Murdochs, the ultimate parents of Fox Broadcasting and therefore the ultimate parents of the licensee, had sufficient control over Fox News to go to trial in the defamation case. And attempts to prevent the peaceful transfer of power following an election should certainly “shock the conscience.”
WHAT’S NEXT? WHAT IF THERE’S A HEARING?
FELD: “First, the FCC must make a determination on whether the Media and Democracy Project (and the other filers of informal objections) have demonstrated that there are “issues of material fact” warranting a hearing. That means Petitioners have made allegations supported with sufficient evidence that, if found to be true, would justify denying the license. While this decision could be made at the Bureau level, it could also be made at the Commission level. In the event the Bureau denies the Petition at this stage, MAD can appeal to the full Commission. If the Commission denies the appeal, MAD can appeal to the Federal Court of Appeals for the District of Columbia Circuit — which has exclusive jurisdiction over FCC licensing matters. See 47 USC 402(b)(2).
Assuming the FCC refers to a hearing, it will issue a “Hearing Designation Order” (or HDO). This will instruct the Administrative Law Judge (ALJ) on which issues that FCC considers relevant to the license renewal challenge…where the ALJ decides if the licensee is moral enough to have an FCC license. Because this is a license renewal under 47 U.S.C. 307(c), rather than a license revocation under 47 USC 312, the Commission must affirmatively find that renewal of the license will positively serve the public interest, convenience and necessity. Still, the licensee starts with a strong presumption that continuing service will serve the public interest…The ultimate question is whether the FCC can trust the licensee to obey FCC rules and act as a trustee for the community of service going forward.
The hearing is basically a trial, with discovery and witnesses and everything. As a general rule these hearings are open to the public, but the ALJ may decide to close the hearings if they think it necessary. Of note, it is not the FCC that prosecutes the case, but the party filing the Petition to Deny. The FCC can participate, and it will be represented by its lawyers at the hearing who may or may not choose to cross-examine witnesses. The FCC lawyers can also make a recommendation to the ALJ after the hearing on what they think the outcome should be. But the ultimate decision is made by the ALJ.”
COULD FOX BE PUNISHED?
FELD: “The FCC does not have to revoke a license simply for violation of the Character Policy. The FCC can decide that some lesser sanction is suitable, along with a warning not to do it again…
So the Commission could find that yes, an adjudication by a court that the licensee made false statements on an affiliated corporate entity (Fox News) can give rise to a violation of the Character Policy, but in this particular case the conduct doesn’t warrant license revocation.
…Alternatively, the FCC could require Fox Corp and Murdoch to do some sort of restructuring/license transfer that would ensure that the operation of the licensee cannot be influenced by them. Or require some sort of compliance plan to ensure that they do not exercise sufficient influence over the licensee to worry the FCC about whether they can operate the license in accordance with the Commission’s rules and the public interest. Again, this isn’t about punishing anyone. It is about whether the FCC can trust the licensee to operate in accordance with FCC rules and the public interest.
Disappointed Petitioners can appeal this decision, but the Commission has very broad discretion in how it structures penalties.”
BRING IT HOME, HAROLD. WHAT’S YOUR FINAL TAKE?
FELD: “This is not a frivolous case. It raises real, if novel, questions for the FCC under its Character Policy and past precedent. The FCC opening the license renewal proceeding to public comment indicates that the FCC recognizes that this case is not frivolous and that the matter is of importance to the public. At the same time, we need to recognize that the presumption of renewing a license is extremely strong. The flip side of “novel questions” is that we don’t have binding precedent that clearly shows how the FCC should decide. There is plenty in the Petition to support a violation of the Character Policy worthy of denying the license renewal. But there are plenty of ways the FCC could decide that this conduct doesn’t warrant denying license renewal.
More importantly, the FCC first has to make an initial decision on whether to refer the matter to a hearing. A referral to a hearing is not an indication of the agency’s ultimate decision. But it would be an important decision because it would show that this kind of conduct — making repeated false statements that result in the first attempt to prevent the peaceful transfer of power since we started doing this in 1797 — does reflect on the character of the licensee and can justify violation of the Character Policy. Perhaps most importantly, it would serve as a major reminder to licensees and the public that broadcasting is different from other kinds of communication. Broadcasters get a valuable commodity — a spectrum license — free. These spectrum licenses act as little government protected monopolies because no one else gets to have them. For anyone who thinks internet access somehow balances out the power of broadcasting, I will cheerfully swap this blog and my YouTube account for one of those broadcast licenses. It is worthwhile to remind broadcasters that they do not own their licenses, and to at least try to make the concept of “trustee to the community of service” a shade more real.”
There you have it. Are the Murdochs and Fox destined to lose the ability to broadcast, and to lose the billions of dollars in advertising revenue that comes with that privilege? Only time, our determination, your support, and the people working at the FCC will tell. Many thanks to Harold Feld for making his field guide. Any question not answered in this summary is likely answered in the full piece here.
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