Fox is invoking the First Amendment in its opposition to a challenge to its character qualifications to hold a Federal Communications Commission broadcast license.
The Media and Democracy Project (MAD), citing Fox's settlement of the Dominion Voting Systems lawsuit over election misinformation, last month challenged the renewal of Fox’s WTXF Philadelphia, and by extension the company’s character qualifications for holding any TV station licenses at all.
The FCC is authorized to review a license applicant’s “citizenship, character, technical, financial and other qualifications.”
According to a copy of its opposition to that challenge, filed with the FCC Wednesday (August 2), MAD has failed to make a case that Fox's license renewal should be denied and is treading dangerous ground.
"MAD’s attempt to transform a civil defamation case into a license revocation action likewise would put the Commission on a collision course with the First Amendment," it told the FCC.
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Fox suggested that denying the renewal would be a case of the government trying to tell it how to run its news operation, quoting FCC chair Jessica Rosenworcel back when she was a commissioner and President Donald Trump was making threats about broadcast license challenges. “The First Amendment ensures that what we see on television, hear on the radio, read in print and interact with on the Internet is free from interference,” Rosenworcel once wrote. “No government official has the right to use their power to dictate what news organizations can say.”
While Fox concedes that broadcast speech has lesser protection from regulation than other content, thanks to the Supreme Court decision in the Red Lion case. But it says that in the context of license renewals, the FCC has signaled it will tread lightly, a precedent it says MAD does not recognize or respect.
Fox says that, First Amendment concerns aside, MAD has failed to articulate a claim against Fox TV Stations or WTXF, known on-air as Fox 29 Philadelphia. As to the lawsuit, it says: “MAD attempts to make much of an unrelated, partially adjudicated civil defamation claim that concerned a cable network under common ownership with FTS. Commission precedent is clear, however, that an unrelated civil matter has no bearing on Fox 29 Philadelphia’s license renewal application.”
By its own count, Fox owns owns 29 full-power TV stations, including in 14 of the top 15 biggest markets, and owns duopolies — two stations — in the top three markets in the country, New York, Los Angeles and Chicago.
MAD wants the FCC to conduct an evidentiary hearing into Fox's conduct, which would then implicate its ability to hold licenses for any of the stations if the FCC found that Fox Corp. lacked the character to own WTFX.
Among the issues the FCC would consider in any review of character qualifications related to news distortion include the seriousness of the misconduct, the nature of any participation by company managers and owners in the misconduct, any efforts to remedy the wrong, and the company's past record regarding compliance with FCC rules and policies.
"MAD has received FOX's response to our FCC Petition and is thoroughly reviewing it," the group said. "As expected, [Rupert] Murdoch's attorneys are attempting to manipulate FCC procedure to evade scrutiny, but the truth will prevail. WTXF is one of 29 stations owned by FOX, and the ultimate control lies with Rupert and Lachlan Murdoch. There is no hiding from that reality. This isn't an issue of protected speech; it's an issue of egregious misconduct that shocks the conscience following decisions by FOX's most senior management to knowingly broadcast false news."
“Never before in the entire recorded history of the Commission," said former Fox executive Preston Padden, "has the agency been confronted with a broadcast license renewal applicant who, just a few months ago, was found by a Court of Law to have repeatedly presented false - false news. There is no obligation of a broadcast licensee more fundamental than the obligation to serve the public interest by truthfully informing viewers. If the character requirement of Section 308 (b) of the Communications Act and the Commission’s own character and news distortion policies are to have any meaning, this license renewal application must, at a minimum, be designated for a hearing.”
