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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Request of ) ) ABC, Inc. ) ) For Declaratory Ruling ) STAFF RULING Adopted: December 9, 1999 Released: December 10, 1999 By the Chief, Mass Media Bureau: 1. The Commission has before it a request for declaratory ruling filed by ABC, Inc. ("ABC") on behalf of Buena Vista Television, Inc. ("Buena Vista"), the producer of the program "Politically Incorrect with Bill Maher" ("Politically Incorrect"). ABC seeks a ruling that "Politically Incorrect" is exempt from the "equal opportunities" provision of Section 315(a) of the Communications Act of 1934, as amended (the "Act"). 47 U.S.C. 315(a). 2. Based on the representations of ABC discussed below, we believe "Politically Incorrect" is, consistent with the Act, the legislative history and precedent, a bona fide news interview program and, as such, is exempt from the equal opportunities requirement under Section 315(a)(2) of the Act. I. FACTUAL BACKGROUND 3. ABC explains that "Politically Incorrect" is hosted by "satirist and humorist" Bill Maher, who begins each program with a "monologue" on current news-related issues. He then introduces a panel of four persons from various fields including the media, academia, politics, and popular culture. Mr. Maher poses an issue from his monologue and asks for his guests' opinions. Occasionally, the program will focus on a single issue; more typically it will involve discussion of several current issues of the day. ABC contends that the satirical aspect of Mr. Maher's monologue should not be an impediment to an exemption because satire has long been recognized as an important and serious part of the American political landscape. 4. ABC argues that "Politically Incorrect" fully satisfies the Commission's established criteria for exempt bona fide news interview programs in that: (1) it has been a regularly scheduled half-hour program, broadcast by the ABC television network each weekday evening since January 6, 1997; (2) the producer, Buena Vista, controls all aspects of the program, ensuring that decisions as to format, content, and participants are based on bona fide journalistic judgment and not motivated by partisan purposes; (3) Buena Vista selects the guests from a variety of fields based on the guests' "involvement in newsworthy events," "competence to discuss current issues," and "represent[ation] [of] a cross-section of ideologies to stimulate a lively exchange of views;" (4) prior to the taping of each show, "the producers meet with the guests to review the pre-selected issues and their positions on the issues" and intervene during commercial breaks as they deem necessary to give direction to the participants; and (5) Mr. Maher exercises control over discussions by preventing speechmaking and steering straying comments back to the main topics. II. DISCUSSION 5. Section 315(a) of the Act provides that if a broadcaster permits a legally qualified candidate for public office to "use" a broadcast station, it must afford equal opportunities to all legally qualified opponents for the same office. In 1959, Congress amended Section 315 so that appearances by legally qualified candidates on the following types of news programs would be exempt from equal opportunities requirements: (1) bona fide newscast, (2) bona fide news interview, (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. Section 315 (a)(1-4). 6. Congress' fundamental purpose in enacting these exemptions was to encourage increased news coverage of political campaigns and to give broadcasters the discretion to exercise their good faith news judgment in deciding which candidates to cover and in what formats. The legislative history emphasizes the congressional intention: [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. 105 Cong. Rec. 14451 (1959) (Holland); See also Chisholm v. FCC, 538 F.2d 349, 176 U.S. App. D.C. 1 (1976). Neither the explicit terms of the statute nor the legislative history of the news exemption amendments, however, reveal the specific format characteristics envisioned by Congress for any of the exemptions. Indeed, the legislative history demonstrates that Congress chose to leave to the Commission the task of interpreting which kinds of programming properly fit the scope of each exemption. In affirming the Commission's 1975 decision that candidate debates should be exempt under Section 315(a)(4) ("on-the- spot coverage of bona fide news events"), the Chisholm court observed: In creating a broad exemption to the equal time requirements in order to facilitate broadcast coverage of political news, Congress knowingly faced risks of political favoritism by broadcasters, and opted in favor of broader coverage and increased broadcaster discretion. Rather than enumerate specific exempt and non-exempt "uses," Congress opted in favor of legislative generality, preferring to assign that task to the Commission. Chisholm v. FCC, 538 F.2d at 366. See also 105 Cong. Rec. 16227 (1959) (Celler); 105 Cong. Rec. 14455 (1959) (Pastore). Although Congress did not specifically detail exempt formats, nor define exactly what it meant by "news," the legislative history indicates that, in general, the common characteristic envisioned of each exemption is "bona fide news value." Thus, Congress qualified each exemption with the term "bona fide" to emphasize that, to be exempt from the equal opportunities requirement, news programming should be genuinely newsworthy and not designed for the partisan purpose of advancing or harming any particular candidate. The legislative history also shows that Congress expected bona fide news interview programs to be regularly scheduled and under broadcaster control. 7. Thus, in deciding whether a program qualifies as a "bona fide news interview" under Section 315(a)(2), a three-prong test evolved: (1) whether the program is regularly scheduled; (2) whether the 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 or harm an individual's candidacy. 8. The Commission remained conservative in its analysis of news interview exemption requests under this test for over twenty-five years, essentially limiting the news interview exemption to what it viewed as more traditional question and answer formats like those cited in the legislative history ("Meet the Press," "Face the Nation" and "Youth Wants to Know"). In 1984, however, the Commission reversed an earlier denial of a news interview exemption to the "Donahue" program. Multimedia Entertainment, Inc., 56 RR 2d 143, 146 (1984)("Donahue"). The Donahue decision signaled the Commission's willingness to recognize varying less conventional interview formats as being consistent with Congress' overriding intent to increase news coverage of the political campaign process. 9. In Donahue, with respect to the second prong of the test, whether sufficient control over the program is present, the Commission concluded that: [I]t would be unsound to rule that a program involving a unique or innovative approach to interviewing its guests somehow lacks sufficient licensee control evident in more traditional news interview programs like "Meet the Press" or "Face the Nation" when the licensee has implemented reasonable techniques to ensure control. To do so would discourage programming innovation by sending a signal to broadcasters that to be exempt an interview program should adhere only to the format of certain programs mentioned by Congress over twenty-five years ago. 56 RR2d 146. As to the third prong, good faith news judgment, the Commission reasoned that it should not second-guess broadcasters about the relative newsworthiness of the interviewees or the topics of discussion. The Commission concluded that it should confine its analysis to whether the broadcaster acted reasonably and in good faith. Donahue stressed that "reasonable persons may differ" about the newsworthiness of particular topics or guests, and that absent bad faith or unreasonableness, the Commission should follow Congress in its willingness to take risks with the exemptions and thus defer substantially to broadcasters' good faith journalistic judgment. 10. We believe that ABC has satisfied each prong of the test. First, "Politically Incorrect" has been regularly scheduled for almost two years, clearly meeting this requirement. Second, as to control, ABC has identified various reasonable mechanisms Buena Vista has implemented for exercising control throughout the production of "Politically Incorrect" and those structural safeguards appear reasonably designed to assure that good faith news judgment can be adequately protected. Third, ABC represents that Buena Vista's decisions about format, content and selection of participants are based on newsworthiness and not motivated by any partisan purpose. The presence of satire as an element of "Politically Incorrect" should not prevent the program from being considered bona fide in terms of good faith news judgment absent an indication that the satire is utilized to advance or harm any particular candidate for public office. The Supreme Court in the Falwell decision noted the importance of satire in political speech, stating that, "Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate." 485 U.S. 46, 54. Satire in the form of a broadcast monologue about news of the day or during discussion of such issues does not appear less important in the realm of political debate than political cartoons. III. CONCLUSION 11. Congress knowingly gave the Commission substantial discretion to interpret the news exemptions to the equal opportunities requirement and decided that the risk of some broadcasters abusing the exemption for partisan purposes was outweighed by the benefit to the public inherent in increased news coverage of political campaigns. In attempting to fulfill the letter and the spirit of the law, the Commission's decisions in this area have continued to expand the kinds of programming eligible for exemption in recognition of change and innovation in broadcast production. Granting an exemption to "Politically Incorrect" is consistent with these principles. 12. Accordingly, for all of the above-stated reasons, ABC's request for declaratory ruling that "Politically Incorrect" is exempt from Section 315(a) of the Act, as a bona fide news interview program under Section 315(a)(2), IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau