NTIA letter, Fox Broadcasting Request for Declaratory Ruling
The Honorable Reed Hundt
Federal Communications Commission
1919 M Street, N.W.
Washington, D.C. 20554
RE: Fox Broadcasting Request for Declaratory Ruling
Dear Chairman Hundt:
This letter addresses the request of Fox Broadcasting Company (Fox), filed with the Commission on April 25, 1996, for a declaratory ruling under Sections 315(a)(2) and (a)(4) of the Communications Act. The National Telecommunications and Information Administration (NTIA) is the President's principal adviser on telecommunications matters. On behalf of the Administration, NTIA strongly supports the Fox request for a declaratory ruling that its proposal to provide free television time for prerecorded interviews with the major Presidential candidates, as well as-on-the spot election eve coverage, does not implicate the equal time requirements of Section 315, because these events constitute bona fide news within the exemptions from the equal time requirements under subsections (a)(2) and (a)(4), respectively.
President Clinton has stated that providing candidates with free television time to talk directly with citizens about real issues and ideas furthers the health of our democracy. In addition to President Clinton's statements, there is widespread support among public interest groups encouraging the television industry to offer free access to major presidential candidates in order to provide issue oriented information directly to the public in formats designed to reach the maximum number of viewers. In the past month, other broadcasters, such as ABC, CBS, CNN, NBC, PBS, and the U.S. Satellite Broadcasting, have all announced plans to offer free television time to candidates.
In this context, Fox's proposal to provide free scheduled broadcast air time will provide a great public benefit. Fox proposes to schedule back-to-back prerecorded interviews by the major Presidential candidates at ten different times for 60 seconds each during the 30 day period immediately prior to the election. In the interviews, each candidate will respond to specific questions that allow citizens to compare how the candidates would handle the same issues. The questions the candidates answer will be formulated by an independent consulting or polling organization with no ties to any candidate. Fox also plans to provide one hour of free air time on election eve for longer statements by each candidate, in response to a single question. By announcing the interviews at scheduled times and capping them with election eve coverage, Fox Broadcasting will provide the public with the opportunity to compare directly the candidates' views on important issues.
Both of the formats proposed by Fox fall within the scope of the exemptions from the equal time requirements for bona fide news interviews under Section 315(a)(2) and on-the-spot coverage of bona fide news events under Section 315(a)(4). Section 315(a) exempts from the equal time requirements appearances by candidates on several types of programming:
bona fide newscasts;
bona fide news interviews;
bona fide documentaries (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary); and
on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto).
Fox's programming satisfies the second and fourth of these exemptions. In order for a program to be considered a "bona fide news interview" under Section 315(a)(2), it must be regularly scheduled, the producer must exercise sufficient control to prevent a candidate from taking control, and the broadcaster's decisions on the format, content, and participants must be based on good faith journalistic judgment and newsworthiness, rather than on an intention to further any individual's candidacy. In re The Pacifica Foundation, 9 FCC Rcd 2817 (1994). Fox's proposed programming meets these tests. First, it is deemed to be "regularly scheduled" under FCC precedent. The Commission has granted exemption for programming that, like that proposed by Fox, is scheduled for limited yet recurrent runs during the current and future election seasons. In re U.S. News and World Report, L.P., 2 FCC Rcd 7101, 7102 (1987). Second, Fox will retain control over the topics and questions posed as part of the programming. Third, the format of the programming presents the candidates on the basis of their "newsworthiness" and does not favor the candidacy of any of the participants. Id.
Even if not deemed to be "bona fide news interviews," Fox's proposal would nonetheless qualify for the exception for "on-the-spot coverage of bona fide news events" under Section 315(a)(4). See In re King Broadcasting Co., 6 FCC Rcd 4998, 4999 (1991). Under the Commission's decision in King, programming in which presidential candidates answer questions, and in which candidates present their essential campaign messages, are deemed to be news "events" subject to the exemption under 315(a)(4). Additionally, Fox's programming will be "newsworthy" in that it will be objective, balanced, and unbiased; in such a case, the Commission has "no basis to question a broadcaster's bona fides in covering such events." King, 6 FCC Rcd at 5000.
Accordingly, the Commission should grant the declaratory ruling requested by Fox Broadcasting. The public interest will be furthered by allowing Fox to broadcast the Presidential candidates' positions on key issues with the certainty that such broadcasts will not trigger the equal time provisions of Section 315. Any lingering concern about the equal time requirements could chill the availability of such important news events.
The grant of the requested declaratory ruling is consistent with Congress' purpose in amending the Communications Act in 1959 to add the exemptions from the equal time requirements discussed above. Congress added these exemptions due to recognition that "the right of the public to be informed through broadcasts of political events" was paramount and because of its conviction that broadcaster discretion with respect to news coverage should be increased. While Congress acknowledged there could be some risk to the equal time provisions in adding the statutory exemptions, it decided the balance must fall in favor of increased news coverage of political events on behalf of the public and also that the Commission should have great leeway in interpreting Section 315.
With this in mind, it is important to note that since the 1959 exemptions for bona fide news were added to Section 315, the trend has been for the Commission to broaden its interpretation of the scope of the exemptions. Such action is consistent with Congress' intent that the Commission have maximum flexibility in determining whether news coverage is exempt from the equal time requirements.
Accordingly, NTIA urges the Commission to grant Fox's request for declaratory ruling so it may proceed to provide free broadcast time for the major Presidential candidates -- to the benefit of the entire American public.
Assistant Secretary for Communications and Information
cc: The Honorable James H. Quello
The Honorable Rachelle B. Chong
The Honorable Susan Ness
 Radio Address by the President to the Nation, Feb. 17, 1996.
 For example, the initial order of the Candidates' statements will be dtermined by coin toss or drawing straws. This order will then be reversed or followed in sequence for subsequent broadcasts of the various position statements. Additionally, the questions will be formulated by neutral independent groups. All statements will also be broadcast in prime-time programs of comparable audience size and will be promoted and regularly scheduled in the period preceding the general election.
 It is also important to note that the fact that the programs will be pre-recorded does not affect their status as "on-the-spot" coverage. See King, 6 FCC Rcd at 4998 (programming to be shown would be taped).
 Chisholm v. FCC, 538 F.2d 349, 352 (D.C. Cir.), cert. denied, 429 U.S. 890 (1976).