Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Application of FOX Television Stations, LLC ) MB Docket No. 23-293
for Renewal of License of WTXF-TV, ) Facility ID 51568
Philadelphia, Pennsylvania ) FRN: 0005795067
)
)
To: Marlene H. Dortch, Secretary
Attn. Holly Saurer, Chief Media Bureau
INFORMAL COMMENTS OF MILO VASSALLO, ALFRED SIKES, ERVIN DUGGAN, JAMIE KELLNER, BILL KRISTOL, WILLIAM REYNER, AND PRESTON PADDEN
Milo Vassallo, Executive Director of the Media and Democracy Project; Alfred Sikes, Former Republican Chairman of the FCC; Ervin Duggan, Former Democratic Commissioner of the FCC and Former President of the Public Broadcasting Service; Jamie Kellner, Founding President of the Fox Broadcasting Company; Bill Kristol, Former Editor of Rupert Murdoch’s “The Weekly Standard”; William Reyner, Former Lead Regulatory and Commercial Counsel for Rupert Murdoch/News Corporation/Fox; and Preston Padden, Former Executive of Fox Broadcasting Company and Former Lead Lobbyist for Rupert Murdoch/News Corporation/Fox; hereby submit these Joint Informal Comments.
INTRODUCTION
As internal documents and emails produced by Fox make clear, the Murdochs/Fox made a business decision to mislead the American people about the 2020 Presidential election and those false reports, interviews, news segments, and statements had consequences for our democracy and our society. Fox’s actions demonstrate that it lacks the character qualifications to remain a trustee of the public’s airwaves.
NOT ABOUT SPEECH
This proceeding is not about speech. This is about a Murdoch/Fox business decision that had disastrous consequences including (1) the January 6 attack on the Capitol and on police that resulted in injury and death (January 6th defendants are pleading that they suffered from “Foxitis”); (2) vicious attacks on election workers like Ruby Freeman and her daughter in Georgia wrongfully and repeatedly accused on Fox of election fraud; (3) threats against election workers in other States like Michigan which was forced to spend over $8 million on home security for these public servants; (4) attacks on judges and FBI offices and (5) undermining public confidence in the electoral process—actions that “shock the conscience”. Perhaps the most devastating consequence of the Murdochs/Fox presenting and endorsing a knowingly false narrative about the 2020 election is that despite all the evidence to the contrary, millions of Americans still believe that the election was stolen. This consequence will continue to divide Americans and eat away at the fabric of our society for years to come. The FCC cannot look away and pretend that nothing happened. It did. And what happened mattered—a lot!
REPEATED PRESENTATION OF FALSE NEWS
In a 130-page opinion (supported by voluminous record evidence) in the Dominion case[1] Judge Davis found that the Murdochs/Fox repeatedly made false statements—the lies about the 2020 election referenced above. Never in the 89-year history of the FCC has the Commission been confronted with a broadcast license renewal application by an applicant recently found by a Court to have repeatedly made material misrepresentations concerning the election process and the outcome of a presidential election. If the character requirement of the Communications Act means anything, it surely must mean not repeatedly making false statements concerning issues of the highest public importance. Allowing Fox to go unpunished will set a dangerous precedent, especially as we enter a new presidential election cycle in 2024.
NOT ABOUT POLITICS
This proceeding is non-partisan and not about politics. A majority of the former FCC and Murdoch/Fox officials/counsel in our group of Informal Commenters are longtime Republicans (a few recently changed their registration to unaffiliated). And they all—Republicans and Democrats—stepped forward and volunteered to join in this effort based on principle and conviction—not politics.
MISREPRESENTATIONS
This proceeding is about knowing and material misrepresentations. Fox misrepresented the facts of the 2020 election to their viewers, misrepresented to the FCC the facts about WTXF’s compliance with the FCC’s political file rules (stubbornly insisting that WTXF timely filed all contracts when many were not filed until after the commercial schedules had run, defeating the purpose of the Rules), and their supporters have engaged in “scare tactic” misrepresentations about the possible consequences to viewers in Philadelphia of a loss of WTXF’s FCC license.
Leaders of the partisan Koch-funded organization[2], Americans for Prosperity published an opinion piece in the Delaware Valley Journal falsely claiming that the Fox 29 licensing proceeding threatened viewer access to telecasts of Sunday afternoon Eagles NFL games.[3] The story falsely asserted that “failing to renew Fox 29’s license would also deprive Philadelphians of the Eagles’ Sunday games.” As explained in the attached affidavit of former Senior NFL Official Frank Hawkins, this assertion is simply not true. Members of our group have heard the same inaccurate concern expressed by key Congressional staff who declined to reveal who gave them that false impression. An FCC hearing will shed much needed light on all these misrepresentations.
CONNECTIONS BETWEEN MURDOCHS/FOX, FOX NEWS CHANNEL AND WTXF
The Murdochs/Fox try to argue that actions by Fox News Channel are not relevant to determining the eligibility of the Murdochs/Fox for renewal of their FCC license for WTXF. That is simply incorrect.
First, the Murdochs own a controlling interest in Fox Corporation. Fox Television Stations is 100% owned by Fox Corporation. The Murdochs/Fox are the applicant for renewal of the FCC license for WTXF—they are the real party in interest, the party that is in a position to actually or potentially control operations of Fox 29 and Fox’s 28 other FCC-licensed stations.[4] In fact, they stand in exactly the same relationship to the station as they do to Fox News Channel, where Rupert Murdoch acknowledged under oath that he had the power and authority to stop the election lies, but didn’t.
Fox News Channel also is 100% owned by Fox Corporation and produces a weekly program, “Fox News Sunday”, that is broadcast by WTXF. Fox News Channel also produces and distributes to WTXF daily national and international news stories for inclusion, at the station’s option, in WTXF locally produced newscasts.
Under well-established Commission precedent, all actions by a broadcast license renewal applicant—in this case the Murdochs/Fox—and their various subsidiaries are relevant to evaluating their character. In fact, in a 2013 Media Bureau decision involving a Fox Broadcast Station and Citizens for Responsibility and Ethics in Washington, the FCC reiterated that “actions of a licensee’s parent or of affiliated companies” are relevant in reaching Broadcast licensing decisions.[5]
REQUEST FOR DOCUMENTS
The Murdochs/Fox have been required to produce voluminous internal documents relating to false statements Fox made concerning the outcome of the 2020 election in the Dominion and Smartmatic litigations and in response to at least four shareholder derivative lawsuits against Fox and its board including the Murdochs. Those documents obviously are relevant to the issues in this proceeding, already have been digitized, and can be produced by the Murdochs/Fox with almost no effort or burden. To properly evaluate the issues raised in this proceeding, the Commission must grant the Petitioners’ motion and require the Murdochs/Fox to produce those documents to the Commission and to the Petitioners. Not requiring the production of those documents would be tantamount to looking the other way.
NARROW AND LIMITED PRECEDENT
Designating the WTXF application for a hearing would establish only an extremely narrow and limited precedent—namely, that a hearing is appropriate when a broadcast license renewal applicant was found by a court to repeatedly have made false statements and those statements were so insidious and harmful as to “shock the conscience”. Prior to the Murdochs/Fox there has not been one single such case in the 89-year history of the FCC and there is no reason to believe that there ever will be another to which this precedent could apply. Specifically, designating a hearing for WTXF would NOT establish a precedent that could be used by a future FCC (or a President) to threaten the license of a Broadcaster with whose views the FCC (or the President) disagree! As Chris Wallace noted when he left Fox News Channel, opinion of all sorts is fine, but “…when people start to question the truth – Who won the 2020 election? Was January 6 an insurrection—I find that unsustainable.”[6] That is the bright line of distinction between this situation and potential viewpoint-based challenges, and it is an easy one for the Commission to articulate and follow.
THE COMMISSION WILL HAVE MANY OPTIONS AFTER A HEARING
Designating the WTXF application for a hearing is the essential first step. Because of the seriousness of the matter, it is critical that the FCC develop a full record of the facts and motives concerning Fox’s false election narrative. After that, the Commission will have a wide range of options. It could conclude, as it has in other cases, that it is not in the public interest to renew the Murdochs/Fox license for WTXF. Or it could conclude that the record in the hearing justifies renewing the license. Or, it could pursue a middle ground as it has done in other cases, for example a short-term renewal. The point is that the Commission will have many options.
CONCLUSION
Because of the Dominion record evidence (internal Murdoch/Fox emails and texts) the whole world watched the Murdochs/Fox acknowledge the truth that the 2020 election was not stolen, debate the cost in viewers and revenues of reporting that truth to their viewers and make a business decision to lie to them instead. The whole world also watched the tragic consequences of that business decision. Judge Davis called them out on it. The question is what the Commission will do.
| Respectfully submitted, /s/Milo Vassallo Milo Vassallo | Respectfully submitted, /s/Alfred Sikes Alfred Sikes |
| Respectfully submitted, /s/William Reyner William Reyner | Respectfully submitted, /s/Ervin DugganErvin Duggan |
| Respectfully submitted, /s/Jamie Kellner Jamie Kellner | Respectfully submitted, /s/Bill KristolBill Kristol |
| Respectfully submitted, /s/Preston PaddenPreston Padden | |
November 28, 2023
[1] US Dominion, Inc., et. al. v. Fox News Network, LLC. And Fox Corporation C.A. No.: N21C-03-257 EMD) Decided March 31, 2023.
[2] There is a relationship between the Koch family and the Murdochs. The Koch family founded the Cato Institute on whose board Rupert Murdoch has served and the Koch-family recently sold him their Montana ranch. https://www.theguardian.com/us-news/2021/dec/10/rupert-murdoch-buys-montana-cattle-ranch-koch-brothers).
[3] https://delawarevalleyjournal.com/tag/fox-29/.
[4] Astroline Communications Company Limited Partner v. FCC, 857 F.2d 1556, 1564 (D.C.Cir 1988).
[5] https://docs.fcc.gov/public/attachments/DA-13-1007A1.pdf
[6] https://www.nytimes.com/2022/03/27/business/media/chris-wallace-cnn-fox-news.html.
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