*Pages 1--5 from Microsoft Word - 1955.doc* Federal Communications Commission DA 00- 1341 Before the Federal Communications Commission Washington, D. C. 20554 In re Request of A& E Television Networks For Declaratory Ruling STAFF RULING Adopted: June 20, 2000 Released: June 20, 2000 By the Chief, Mass Media Bureau: 1. The Commission has before it a request for declaratory ruling filed by A& E Television Networks (“ AETN”) 1 asking that the Commission declare a series of presidential candidate profiles either that have aired or will be airing on the program “Biography” exempt from the equal opportunities requirements of Section 315 of the Communications Act of 1934, as amended (the “Act”). 47 U. S. C. § 315. Based on the representations of AETN discussed below, we believe the subject episodes of “Biography” are bona fide news interview programs and, as such, are exempt from the equal opportunities requirements under Section 315 of the Act. 2 I. BACKGROUND 2. AETN describes “Biography” as television’s longest- running, single- topic documentary series, whose typical “episode presents a one- hour profile of a famous individual who has accomplished some major achievement, drawing its subjects from a broad range of human endeavor.” The series began in 1987 and, since 1994, is broadcast five nights a week. The series “combines narration with period footage, archival tapes, film clips, interviews with the person’s friends, family members and colleagues, and, occasionally, with the subject of the profile.” In a letter filed to supplement its request, AETN states that all of the episodes that are the subject of this request, however, namely a series of profiles of presidential candidates broadcast during the 2000 presidential campaign, have included or will include current interviews with the candidates as an integral part of the program. AETN lists five such programs that it either aired or plans to air during the year 2000 presidential race. In an oral statement to Mass Media Bureau staff, AETN has indicated that it intends to air similar profiles during future presidential campaigns. 1 AETN is a cable programmer offering several channels of cable programming throughout the United States via cable and other media outlets. 2 In light of our ruling herein that the format of the proposed series of presidential candidate profiles appears to satisfy the requisites for bona fide news interview programming, we need not consider a collateral issue, raised by AETN, of whether Section 315 is even applicable to cable programming not under the editorial control of the cable system operator. Unlike broadcast stations, which are potentially subject to Section 315 requirements with respect to all programming broadcast by a station, cable systems are subject to Section 315 only to the extent they “originate” programming. Origination programming is defined in Section 76.5( p) of the Commission’s Rules as cablecast material under the “exclusive editorial control of the cable operator.” 47 C. F. R. § 76.5( p). The Commission has not considered whether cable network programming such as the programming produced by AETN could, under any circumstances, be deemed cablecast origination material and will not address this issue here. 1 Federal Communications Commission DA 00- 1341 2 3. AETN argues that the subject “Biography” profiles qualify for a bona fide news interview exemption under Section 315( a)( 2) of the Act because (1) “Biography” is regularly scheduled; (2) “Biography” originates with, and is under the control of, AETN; and (3) decisions concerning the format, content, scheduling and production of the series are made by AETN based on bona fide news judgment and not for the political advantage of any candidate. AETN contends that the fact that “Biography” is historically a documentary series does not preclude the Commission from finding that the subject series of profiles may also qualify as news interview programs when its producer has made a commitment that the subject episodes will include current interviews with the candidates as an integral part of the episodes. In support of its argument, AETN cites King Broadcasting Co. v. FCC (King), 3 a case in which the U. S. Court of Appeals for the D. C. Circuit found that a program may be a “hybrid format” involving programming which, while it may not satisfy the requirements for one news exemption, may satisfy the requirements for an alternative news exemption under Section 315. It additionally maintains that its exemption request is supported by previous Commission decisions granting a news interview exemption to the following programs: a special edition of “Nightline” entitled Who is Ross Perot?, which started with a one- hour documentary profile of Perot, 4 followed by an interview of Perot, and episodes in The Next President series concerning profiles of presidential contenders. 5 The latter used filmed profiles of newsworthy presidential candidates accompanied by interviews, to explore the “character, personal qualities and general philosophy of each candidate.” 6 4. Alternatively, AETN contends that the subject “Biography” programs would qualify for a bona fide news documentary exemption under Section 315( a)( 3). It acknowledges that the requirement for this exemption, that the appearance of the candidate be “incidental” to the presentation of the subject( s) covered by the news documentary, would appear to disqualify these programs from this exemption. However, it requests that the Commission reinterpret Section 315( a)( 3) to allow these programs to qualify for the exemption by, for example, interpreting this part of the exemption as requiring only that the discussion of a person’s candidacy be incidental to the documentary where, as here, the profile generally focuses on the subject’s life and other accomplishments. II. DISCUSSION 5. Section 315( a) of the Act provides that, if a licensee allows a legally qualified candidate for public office to use a broadcast station, it must afford equal opportunities to other such candidates for that office. Section 315 states that appearances by legally qualified candidates on the following news programs are exempt from equal opportunities (1) bona fide newscast (2) bona fide news interview 3 860 F. 2d 465, 470 (D. C. Cir. 1988). 4 Fulani v. FCC, 49 F. 3d 904 (2d Cir. 1995). 5 U. S. News and World Report, 2 FCC Rcd 7101 (1987). 6 Id. at 7101. 2 Federal Communications Commission DA 00- 1341 3 (3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or (4) on- the- spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto.) 47 U. S. C. § 315( a)( 1- 4). The Commission has demonstrated a willingness to be flexible in interpreting these exemptions in order to further Congress’ primary purpose in enacting the news exemptions, “[ t] o enable what probably has become the most important medium of political information to give the news concerning political races to the greatest number of citizens, and to make it possible to cover the political news to the fullest degree.” 7 In 1984, for example, the Commission began a significant expansion of the news interview exemption when it declared certain segments of the Donahue program could be treated as exempt news interviews despite the producer’s acknowledgement that many other Donahue segments were not news interviews. 8 The Commission explained that it relied on the Donahue producers statement that it would present bona fide news interviews on a regular basis and could not justify denying the request because many Donahue segments would not include bona fide news interviews. The Commission’s Donahue decision also signaled our willingness to grant exempt status to news interviews which did not follow a more traditional question and answer format indicative of programs such as Meet the Press and Face the Nation, which were mentioned in the 1959 legislative history of the news exemption amendment to Section 315 as the kind of interview programs it envisioned. The Commission said that continued limitation to only such programming as was in existence in 1959 would discourage innovation and thwart the underlying purpose of the exemptions to increase news coverage of the political process. Thus, although a significant number of Biography episodes must be treated as documentaries, which could be exempt only if the candidate’s appearance was incidental to the episode, AETN’s assurance that the subject series of presidential candidate profiles will include news interviews allows the Commission the same flexibilty it demonstrated in Donahue to declare those episodes exempt. 6. This determination also adheres to the U. S. Court of Appeals reasoning in King, in which the court indicated that the Commission must avoid a mechanistic approach to the exemptions by failing to consider whether a particular programming format could fit an alternative exemption category when it did not meet the requirements for another category. In King, the Commission refused to grant a news interview exemption to an interview portion of a proposed format for the presentation of presidential candidates during the 1992 campaign because the interviews were not part of a regularly scheduled program. The court said that the Commission should have considered whether the interviews, as part of the overall programming proposal, might be deemed to be exempt under the “on- the- spot coverage of a bona fide news event” exemption. On remand, the Commission reconsidered its analysis and granted an exemption to the programming under the “on- the- spot” exemption. 9 Similarly, although we find that the subject “Biography” 7 105 Cong. Rec. 14451 (1959) (remarks of Sen. Holland). 8 Request by Mulimedia Entertainment, Inc. for Declaratory Ruling, 56 RR 2d 143, 148 (1984). See Request by CBS, Inc., New York, New York, 58 FCC 2d 601 (1976); Complaint of Socialist Workers 1968 National Campaign Committee, 14 FCC 2d 858 (1968). 9 6 FCC Rcd 4998 (1991). The Commission noted that it had indicated in earlier cases “that there are some program formats which could conceivably qualify for an exemption under either the Section 315( a)( 2) exemption for bona fide news interviews or the exemption under Section 315( a)( 4) for bona fide news events.” Id. at 5000, citing Henry Geller, 95 FCC 2d 1236, 1244 (1983) and Aspen Institute, 55 FCC 2d 697, 708- 12 (1975) [candidate news conferences qualify for exemption under Section 315( a)( 4) 3 Federal Communications Commission DA 00- 1341 4 episodes do not qualify for one of the Section 315 exemptions-- the documentary exemption, because the candidate appearances are not incidental to the program, we do find that these episodes qualify for another Section 315 exemption-- the news interview exemption-- because they include contemporaneous interviews of the candidates and, as explained below, the requisites for the interview exemption are otherwise met. 7. In addition, we find the characteristics of the subject programs to be very similar to those in U. S. News and World Report, programming we concluded qualified as exempt bona fide news interviews. In that case, as here, the format of the programs included, among other things, one- on- one interviews with presidential candidates, background information, and relevant footage; the programs were regularly scheduled; and the programs were under the complete editorial control of producers whose decisions concerning the programs were “based solely on objective, reasonable, good faith journalistic judgment and not an intention to advance the candidacy of a particular person.” 10 8. After concluding that the format of AETN’s proposed series can be considered under the news interview exemption category, we also conclude that the subject segments of Biography satisfy the longstanding requirements for exempt bona fide news interviews: (1) whether it is regularly scheduled; (2) whether a broadcaster or an independent producer controls the program; and (3) whether the broadcaster’s or independent producer’s decisions on format, content, and participants are based on newsworthiness rather than on an intention to advance an individual’s candidacy. 11 Based on the record, the subject episodes of “Biography” appear to satisfy each of these factors. Regarding the first factor, in an earlier case, we found that a series containing only five episodes could be considered regularly scheduled particularly where, as here, essentially the same series is intended for broadcast on a recurrent basis preceding future elections. 12 Concerning the second factor, AETN appears to exercise complete control over the subject series of presidential profiles. With respect to the third factor, good faith news judgment, there is nothing in the record to suggest that AETN’s proposed presidential profiles are intended to advance or harm any particular candidate. Based on the foregoing, we believe that the subject “Biography” programs are exempt from the equal opportunities requirements pursuant to Section 315( a)( 2). 9. Finally, we do not find AETN’s argument that the programs in question would qualify for a bona fide news documentary exemption to be persuasive. As stated in the language of the bona fide news documentary exemption itself, that exemption explicitly applies only if the appearance of the candidate is but not for exemption under Section 315( a)( 2)]. Programs with hybrid formats have been granted exemptions in a number of other cases. For example, in granting a request that the Commission declare that Hard Copy qualified for the bona fide newscast exemption, the Commission stated that the use of interviews, on- the- spot coverage, and documentary footage in the context of some stories presented in the program was not a basis for denying a newscast exemption because these various approaches to news reporting are typical of the more traditional newscast formats. Request for Declaratory Ruling By Paramount Communications, Inc., 5 FCC Rcd 4627 (1990). 10 U. S. News and World Report, 2 FCC Rcd at 7101. 11 See Request for Declaratory Ruling on Independently Produced News Interviews, 7 FCC Rcd 4681 (1992). 12 Request of the Pacifica Foundation, 9 FCC Rcd 2817 (1994). 4 Federal Communications Commission DA 00- 1341 5 “incidental to the presentation of the subject or subjects covered by the news documentary.” In this case, the candidates’ appearances are not incidental as the candidates themselves are the subjects of the documentaries in question. Neither the explicit terms of the statutory language nor the legislative history of the bona fide news documentary exemption reflect any intention to interpret the “incidental” requirement as being related to whether the appearance concerns the candidate’s bid for elective office or any other particular aspect of the candidate’s life. Thus, we are unprepared to grant AETN’s request to reinterpret the exemption Section 315( a)( 3) to include news documentaries, which focus on the life of a candidate but only incidentally discuss the person’s candidacy. 10. ACCORDINGLY, for all of the above- stated reasons, AETN’s request for a declaratory ruling that profiles of presidential candidates on “Biography,” as described in the record, broadcast during the year 2000 presidential campaign are exempt from Section 315( a) of the Act as bona fide news interviews IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau 5