Before the Federal Communications Commission Washington, D.C. In re Request for Declaratory Ruling of ) ) FOX BROADCASTING COMPANY ) ) Regarding Sections 315(a)(2) and (4) ) of the Communications Act ) To: The Commission REQUEST FOR DECLARATORY RULING Fox Broadcasting Company ("Fox"), pursuant to Section 1.2 of the Commission's Rules, hereby requests a declaratory ruling that the news event coverage described herein and proposed to be broadcast over the Fox Network during the 1996 presidential general election campaign is exempt from the "equal opportunities" provision of Section 315(a) of the Communications Act, as amended. As will be shown below, Fox's proposals fall within the ambit of the bona fide news interview and "on-the-spot" news coverage exemptions codified at Sections 315(a)(2) and (4). Furthermore, Fox's proposals will contribute to the public interest in an open and vigorous exchange of ideas prior to the November 5, 1996 general election, while fully comporting with "Congress's objectives both to treat all candidates equally and to ensure maximum coverage" of political news. King Broadcasting Co. v. FCC, 860 F. 2d 465, 466 (D.C. Cir. 1988). I. FOX PROPOSES TO PROVIDE NEWS EVENT COVERAGE OF SHORT- AND LONG-FORM CANDIDATE PRESENTATIONS REGARDING ISSUES OF CONCERN TO VOTERS. Fox seeks ruling with respect to the following two proposals to provide news event coverage by the Commission of Presidential Debates (collectively, the "Candidates"): A. Short-Form News Event Coverage. Between September 15 and November 2, 1996, Fox proposes to provide news event coverage of ten 60-second position statements by each Candidate, for a total of ten minutes per Candidate. Each statement will be a response to a question about a different issue of demonstrable concern to voters in the general election. The ten questions will be formulated by an independent consulting or polling organization and will be submitted to the Candidates in writing by September 1, 1996. Fox will not exercise any control over the content of the Candidates' statements. The following additional structural safeguards will be implemented in order to assure fairness and comparable exposure to the Candidates: 1. The position statements of each candidate responsive to each issue will be broadcast in prime-time programs of comparable audience size. 2. The order of the Candidates' statements will be determined initially by coin toss or by drawing straws, and will be reversed (or followed in sequence if there are more than two participating candidates) in each broadcast for the duration of the series. 3. The ten events will be regularly scheduled during the designated 30-day period preceding the general election, and will receive advance promotion. Fox submits that these safeguards, in addition to the mechanism for selecting the candidates, selecting the topics to be addressed and formulating the questions to the Candidates, will satisfy "Congress' intent that the particular individual." Henry Geller, 95 F.C.C.2d 1236, 1243, aff'd sub nom. League of Women Voters Educ. Fund v. FCC, 731 F.2d 995 (D.C. Cir. 1983). Fox believes that, in view of both the proposed format of the series and the complicated and unpredictable schedules of the Candidates in the month preceding the general election, it will be impracticable to present live coverage of each of the Candidates' ten position statements. Accordingly, Fox will make production facilities available, free of charge and at mutually convenient times and locations, for the Candidates to record their statements live on videotape. B. News Event Coverage of Election-Eve Candidate Presentations. In addition to the short-form news coverage discussed above, Fox proposes to make available one hour of its prime-time network schedule on Monday evening, November 4, 1996, to provide news event coverage of longer, back-to-back statements by each Candidate. These statements will consist of the final campaign message in response to the question, "Why should the American voter vote for you?" The hour will be divided equally among the Candidates. Fox will not exercise any control over the content of the Candidates' statements, and the order of the presentations will again be determined by coin toss (or by drawing straws). For the reasons discussed above, Fox also will provide production facilities free of charge at mutually agreeable times and locations for the recording of the Candidates' statements. II. FOX'S PROPOSALS QUALIFY FOR EXEMPTION FROM THE EQUAL OPPORTUNITIES REQUIREMENT OF SECTION 315(a). Like the other exemptions from the equal opportunities requirement of Section 315(a), the "bona fide news interview" and "on-the-spot" news coverage exemptions are intended to strike a balance between, on the one hand, the guaranteed equal treatment of political candidates, and on the other, the right of the public to be informed through broadcasts of political events . . . [and] the discretion of the broadcaster to be selective with respect to the broadcasting of such events. Hearings on Political Broadcasts -- Equal Time Before the Subcommittee on Communications and Power of the House Committee on Interstate Foreign Commerce, 86th Cong., 1st Sess. 2 (1959) (comments of Chairman Harris). As explained below, Fox respectfully submits that its proposals satisfy the Commission's criteria for exemption from the equal opportunities requirement of Section 315(a) with respect to either of these provisions. Both Fox's short-form and election-eve presentations "reasonably may be viewed as news 'events' subject to broadcast coverage" in the exercise of Fox's good faith news judgment. King Broadcasting Company, supra, at 4999 (back-to-back candidate presentations alternating with candidate interviews collectively exempt under Section 315(a)(4)). The Commission has concluded that there is "no significant distinction between coverage of this sort of political 'event' [i.e., alternating candidate presentations] and the candidate debates we previously have deemed to be news 'events.'" Id. Accordingly, the spoken presentations by the Candidates on issues of concern to voters proposed to be broadcast by Fox, "by any reasonable standard, are news 'events' within the contemplation of the "on-the-spot" exemption. Id. at 5000. See also Henry Geller, supra, at 1246-47 (delayed broadcasts qualify for Section 314(a)(4) exemption). Guided by prior Commission decisions, Fox has designed structural safeguards that will ensure that there is no candidate favoritism. See Aspen Institute Program, 55 F.C.C.2d 697 (1975), aff'd sub nom. Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), cert. denied, 429 U.S. 890 (1976) (exempt presentations must be broadcast in non-discriminatory manner). Each candidate will receive an identical amount of time to respond to each of a series of ten identical questions; thereafter, on November 4, each candidate will be given an identical amount of time for an extended statement in response to a final question. Cf. King Broadcasting Company, supra, at 4999 ("the mere fact that the presentations allow the candidates to present their views in the most favorable light, without spontaneous interaction with the press or opposing candidates, does not preclude application of the news event exemption"). In addition, Fox has removed itself completely from the process of selecting participation candidates. The Fox news event coverage will treat equally all those candidates deemed eligible by the Commission on Presidential Debates. Fox submits that its proposals also satisfy, in form and substance, the three principal factors the Commission has considered in finding limited duration election-specific interview series qualified for exemption under the "bona fide news interview" provision of Section 315(a)(2). See, e.g., U.S. News and World Report, L.P., 2 FCC Rcd 7101 (1987); The Pacifica Foundation, DA 94-639 (MMB 1994). First, decisions regarding the format, content, scheduling and production will be made by Fox "'in the exercise of its bona fide news judgment and not for the political advantage of the candidate for public office.'" U.S. News and World Report, supra, at 7102, quoting H. Rep. No. 1069, 86th Cong., 1st Sess. 4 (1959). Second, the presentations will be regularly scheduled during the 30-day period preceding the general election, "with the intention to continue the series to coincide with the advent of future Presidential elections." Id. (limited duration, "election-specific" series satisfy "regularly scheduled" criterion). See also Media and Society Seminars, 56 R.R.2d 1150, 1153 (MMB 1984) ("[o]nly where the scheduling of a program is used as a vehicle to advance the political aspirations of a participant would the Commission question its proximity to an election"). Third, the programs will originate with and be under the control of the Fox network. See U.S. News and World Report, L.P., supra, at 7102. Indeed, although in "a typical interview format, there can be no guarantee that competing candidates will be given precisely equal treatment" (King Broadcasting Company, supra, at 5000), Fox's proposed format will do exactly that. Furthermore, the duration of the short-form candidate responses does not affect their entitlement to the exemption. See Silver King Broadcasting Co., 64 R.R.2d 1440 (MMB 1988) (segments of three to four and one-half minutes' duration qualify as exempt news interview programs); National Broadcasting Co., Inc., 60 R.R.2d 1068 (MMB 1986). III. CONCLUSION Fox submits that its proposals will unquestionably serve the public interest by providing enhanced coverage of the 1996 presidential election in a manner fully consistent with Congress's objectives both to treat all candidates equally and to ensure maximum coverage of political news and information. Fox's proposals will permit the wide dissemination by a free, over-the-air television network of political news and information. The format and content of the programs will be determined by Fox in exercise of its good faith journalistic judgement, and the selection methodology, formulation of questions and other structural safeguards designed by Fox will guarantee against even the possibility of "favoritism or bias." King Broadcasting Co. v. FCC, 860 F.2d at 467. Fox's proposals will mitigate the potential unfairness resulting from the high cost of broadcast advertising time in general, and of prime-time television time in particular. Accordingly, for all the reasons stated herein, Fox respectfully requests that the Commission rule that its planned political coverage, as described above, is exempt from the equal opportunities provision of Section 315(a) of the Act. Respectfully submitted, FOX BROADCASTING COMPANY By__________________________________ William S. Reyner, Jr. Mace J. Rosenstein HOGAN & HARTSON L.L.P. Columbia Square 555 Thirteenth Street, N.W. Washington, D.C. 20004 202/637-5600 ` Its Attorneys April 25, 1996