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 . . . .