FCC Action Seen Unlikely on Padden-Backed Petition Against Fox Renewal
A petition from the Media and Democracy Project (MAD) and former Fox executive Preston Padden asking the FCC to hold a hearing over and block a Fox-owned TV station’s license renewal isn’t likely to lead to agency action and would raise First Amendment concerns if it did, said attorneys we spoke with. Said MAD: “Owning a broadcast station is more than a business -- it is a public trust. Never before has the Commission been confronted with so much evidence attached to a petition that clearly shows that an FCC broadcast licensee undermined that trust." The FCC has historically stayed out of broadcaster editorial decisions and isn’t likely to change that, said Fletcher Heald broadcast attorney Frank Montero.
“The Media and Democracy Project petition to deny the license renewal of WTXF-TV is frivolous, completely without merit and asks the FCC to upend the First Amendment and long-standing FCC precedent,” emailed a spokesperson for Fox Television Stations. WTFX is one of 29 Fox-owned stations. “WTXF-TV / FOX 29 News Philadelphia is one of the finest local news stations in the country, broadcasting over 60 hours of local news and locally produced programming every week,” said the spokesperson.
The petition, filed Monday, asks the agency to block the license renewal of Fox’s owned and operated WTFX-TV Philadelphia based on disclosures from the Dominion v. Fox defamation lawsuit, the Jan. 6 attack on the U.S. Capitol, and personal communications between Padden and Fox head Rupert Murdoch. Evidence from the trial and Padden’s messages with Murdoch show Fox’s leadership knowingly sanctioned false reporting about the election, which in turn led to deaths and violence on Jan. 6, the petition argues. That means Fox violated the FCC’s character requirements for licensees, MAD said. “The intentional distortion of news, authorized at the highest levels of FOX's corporate structure, and fabricated by management and on-air personalities, represents a severe breach of the FCC's policy on licensee character qualifications."
“It was obvious to me that Mr. Murdoch knew that Trump had lost the election and there was no basis for claiming election fraud,” said Padden’s declaration, which includes messages to him from Murdoch condemning former President Donald Trump for saying the 2020 election was stolen and lamenting decreases in Fox stock after Trump disputed Fox’s election counts. “These actions on the part of Mr. Murdoch, his son, and top FOX management significantly contributed to the upheaval that occurred at the U.S. Capitol building on Jan. 6, 2021," wrote Padden. “During my 7 years at FOX, ultimate decision-making authority for the operation of every part of the company -- every division, every business unit, every subsidiary -- rested with Rupert Murdoch,” said Padden in the petition. Padden left Fox in 1997. Fox was Murdoch’s “candy store,” Padden said.
“We have received and are reviewing the petition,” emailed an FCC spokesperson, but the agency is considered unlikely to take up the matter, said broadcast and communications attorneys. The agency has rarely gone after stations based on its rules against news distortion, and hasn’t done so at all in decades, attorneys told us. The FCC has taken notice of licensee criminal convictions when considering renewals, but Dominion v. Fox was a civil matter, and ended with a settlement before trial began, attorneys noted. “To the extent the Commission requires an adjudication of nonbroadcast misconduct, such as a felony conviction, in order to commence proceedings based on character, the court’s decision on motions for summary judgment in Dominion v. FOX satisfies that standard,” said the MAD petition.
Taking a station’s license over an editorial decision would trigger a First Amendment battle the agency would be unlikely to win, said broadcast attorney Jack Goodman. Numerous attorneys said such a hearing would likely also bring massive media fallout and accompanying congressional hearings, which is also likely to deter FCC action. The FCC's news distortion rules are valid, and just because they have been little used doesn't mean they should continue to be, said Free Press Policy Counsel Matt Wood. If the rules don't permit the agency to ask questions about licensees who haven't been convicted of a felony, the agency's public interest standard has little meaning, he said.
MAD counsel Arthur Belendiuk of Smithwick & Belendiuk compared the Jan. 6 attack to the 2007 KDND Sacramento on-air water drinking contest that led to the death of participant Jessica Strange (see 1702030074). The FCC designated KDND’s license for hearing in that matter, Belendiuk noted. “FOX greatly contributed to this tragedy,” the petition said of Jan. 6. “It broadcasted false statements, not out of ignorance, or through a genuine belief that it was broadcasting truth, but through the sole motivation of greed.” The KDND process didn’t end with the FCC taking the station's license but with owner Entercom voluntarily giving it up to facilitate the CBS Radio acquisition, attorneys said.
Allowing any party to dispute a station’s license is an important part of the FCC process, said former FCC Chairman Tom Wheeler, saying he wasn’t passing judgment on the petition's viability. “If there’s any meaning at all to the character test” for broadcast ownership, the agency should pursue a hearing, said former FCC Chairman Reed Hundt. “It seems on the face of it that there are grounds for an investigation.”