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 Federal  Communications  Commission  DA  01-847 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Complaint  and  Request  for  Section  403 
 Investigation 


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 EB-  00-  IH-  0438 


 ORDER 
 Adopted:  April  3,  2001  Released:  April  6,  2001 
 By  the  Chief,  Enforcement  Bureau: 


 1.  In  this  order,  we  deny  the  “Complaint  and  Request  for  Section  403  Investigation”  filed  on 
 behalf  of  Smithwick  &  Belendiuk,  P.  C.  (“  Smithwick  &  Belendiuk”).  The  complaint  generally  alleges  news 
 distortion  with  respect  to  reports  concerning  the  outcome  of  the  Florida  vote  in  the  2000  Presidential 
 election  that  were  broadcast  on  four  television  networks  –  ABC,  CBS,  NBC  and  Fox  (collectively,  “the 
 Networks”).  In  this  regard,  Smithwick  &  Belendiuk  states  that  the  Networks,  all  within  the  same  time 
 frame  and  all  apparently  relying  on  information  collected  by  the  Voter  News  Service  (“  VNS”),  incorrectly 
 projected  that  Florida’s  25  electoral  votes  would  go  to  candidate  Al  Gore.  Smithwick  &  Belendiuk  requests 
 a  formal  Section  403  investigation  before  an  administrative  law  judge.  For  the  reasons  set  forth  below,  we 
 decline  to  initiate  an  investigation. 


 2.  The  complaint  states  that  the  Networks  broadcast  erroneous  reports  as  to  the  outcome  of 
 the  Florida  vote  while  polls  were  still  open  in  parts  of  Florida  and  in  other  states  outside  the  eastern  time 
 zone.  The  complaint  characterizes  the  Networks’  reports  as  “critical  piece(  s)  of  news  distortion”  and 
 asserts  that  the  Commission  should  initiate  an  investigation  in  order  to  determine  whether  the  Networks’ 
 reports  intentionally  distorted  available  exit  poll  data  collected  by  the  VNS  or  whether  the  Networks’ 
 reports  exhibited  a  reckless  disregard  for  the  accuracy  of  VNS’s  exit  poll  data.  Smithwick  &  Belendiuk 
 further  asserts  that  the  investigation  should  determine  whether  the  Networks  knowingly  or  recklessly  made 
 inaccurate  statements  as  to  the  outcome  of  the  Florida  vote  to  generate  ratings  or  to  manipulate  or  influence 
 voting  and  the  outcome  of  the  Presidential  election. 


 3.  Whether  or  not  to  begin  an  investigation  under  Section  403  of  the  Act  is  a  matter  within 
 the  Commission’s  discretion.  The  mere  fact  that  the  Networks  incorrectly  projected  that  Al  Gore  would 
 receive  Florida’s  electoral  votes  is  not  a  sufficient  basis  to  initiate  such  an  investigation.  Accordingly,  we 
 deny  Smithwick  &  Belendiuk’s  complaint  and  decline  to  initiate  such  an  investigation. 
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 Federal  Communications  Commission  DA  01-  847 
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 4.  Accordingly,  IT  IS  ORDERED  THAT  the  “Complaint  and  Request  for  Section  403 
 Investigation”  filed  on  November  28,  2000  by  Smithwick  &  Belendiuk,  P.  C.  IS  HEREBY  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 David  H.  Solomon 
 Chief,  Enforcement  Bureau 
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