In its opposition to a petition calling for the Federal Communications Commission (FCC) to reject the broadcast license renewal of its Philadelphia TV station, Fox Corp. said taking a local channel off the air because Fox News aired false 2020 election claims would be a “violation of the First Amendment.”
The company’s objection, which was filed on Wednesday, is in response to the “non-partisan” Media and Democracy Project’s request that the FCC refuse Fox 29 Philadelphia’s renewal application on the basis of Dominion Voting System’s defamation suit against Fox over election misinformation, which was settled this spring for $787.5 million.
It also comes just days after former Fox News pundit Bill Kristol and ex-PBS president Ervin Duggan further urged the FCC to deny Fox 29 its license, saying that the “Dominion case unequivocally established that Fox News Channel repeatedly disseminated false news, and the Fox cable channels and its broadcast ones are clearly intimately linked.”
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“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,” MAD argued in its filing last month, adding: “Paying a settlement of nearly a $1 Billion is tantamount to a guilty conviction.”
Furthermore, MAD noted that before Fox settled with Dominion over claims that Fox News willfully aired election lies to boost sagging ratings, the judge assigned to the case had already ruled that it was “crystal clear” that the right-wing network’s election fraud statements about the voting software company were false.
“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,” Fox told the FCC in its objection.
While MAD has appealed to the FCC’s mission to review an applicant’s “character” in denying Fox 29 its license, Fox says that the organization has failed to make its case on several grounds.
“MAD attempts to make much of an unrelated, partially adjudicated civil defamation claim that concerned a cable network under common ownership with [Fox Television Stations],” Fox said in its filing. “Commission precedent is clear, however, that an unrelated civil matter has no bearing on Fox 29 Philadelphia’s license renewal application.”
Fox continued to point out that Fox Television Stations, which operates the company’s local television channels, was not even named in Dominion’s lawsuit and that MAD was unable to link FOX 29’s coverage of the 2020 election to that of Fox News.
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“MAD fails to offer any credible support for its false claim that ‘FOX has not operated WTXF-TV and its other stations in a manner that served the public interest, convenience and necessity’ under the Act,” the objection stated. “MAD’s sole, tenuous attempt is to ask the Commission to assume that Fox 29 Philadelphia broadcast the content that was the subject of a civil defamation case against a commonly owned cable network, and take that content into account in adjudicating Fox 29 Philadelphia’s license renewal application.”
On top of that, Fox insisted that the Philadelphia station never aired any of the objectionable content that MAD cited in its petition.
“In addition to the threshold legal problem with MAD’s request, the allegations on which MAD bases that request are false,” Fox wrote. “There is absolutely no evidence that the content about which the Petitioners go on at length ever aired on Fox 29 Philadelphia. Thus, MAD’s case also fails as a factual matter.”
Furthermore, Fox took issue with MAD accusing the local channel of “news distortion,” claiming that the group again failed to back its allegations with hard proof.
“MAD offers no evidence that FTS or Fox 29 Philadelphia aired the content of which they disapprove, nor does MAD contend with the obvious First Amendment problems of conducting the broad, content-based inquiry that it seeks,” the objection said. “Given that MAD had failed to even allege any relevant evidence concerning the station or its licensee, it has failed to plead a prima facie case of broadcast news distortion. The Commission has long held that allegations of news distortion must be supported by ‘extrinsic evidence’ of deliberate distortion by the licensee.”
Finally, Fox appealed to the FCC not to go down the road of revoking Fox 29’s license, stating that it would go against the right to free speech.
“It also would, for the first time in history, have the Commission adjudicate a broadcast license renewal on the basis of cable network content, in violation of the First Amendment and the authority delegated to the Commission by Congress,” Fox warned.
Former Fox executive Preston Padden, who provided a supporting declaration to MAD’s initial petition and has previously called for the FCC to pull Fox’s licenses, stood by his stance in a statement to The Daily Beast.
“Never before in the entire recorded history of the Commission 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,” he said.
“There is no obligation of a broadcast licensee more fundamental than the obligation to serve the public interest by truthfully informing viewers,” Padden concluded. “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.”
