Federal Communications Commission Washington, D.C. 20554 DA 07-2530 Released: June 13, 2007 Chicago Media Action and Milwaukee Public Interest Media Coalition c/o Andrew Jay Schwartzman, Esq. Media Access Project Suite 1000 1625 K Street, NW Washington, D.C. 20006 Re: Petitions to Deny filed by Chicago Media Action and Milwaukee Public Interest Media Coalition Gentlemen: On November 1, 2005, Chicago Media Action (“CMA”) and the Milwaukee Public Interest Media Coalition (“MPIMC”) filed petitions opposing the license renewal applications of 8 broadcast television stations in the Chicago area and 11 broadcast television stations in the Milwaukee metropolitan area.1 The licensees of various stations named in the petitions, and the Illinois Broadcasters Association, filed oppositions on or about December 15, 2005. CMA filed a reply to the relevant oppositions on January 18, 2006. For the reasons set forth below, we deny the petitions.2 Background. The petitions contend that Chicago and Milwaukee broadcast stations have failed to present adequate programming relating to state and local elections during the 2004 election campaign. They attach to their petitions a study by the Center for Media and Public Affairs, entitled “2004 Campaign News Study in Chicago, Milwaukee and Portland Markets,” which purports to analyze all regularly scheduled news and public affairs programming on the five highest-rated commercial stations in Chicago and Milwaukee, respectively. According to the study, less than 1% of newscasts in the Chicago and Milwaukee markets were devoted to non-federal elections during the four weeks prior to the 2004 election. In addition to assessing the quantity of newscast time devoted to non-federal elections, CMA and MPIMC also state that the study indicates that fully half of this news coverage did not inform voters about issues or other facts which would actually assist in voting. Both CMA and MPIMC acknowledge that 1 The stations and licensees named in the petition are attached to this letter as an Appendix. CMA characterizes itself as “an activist group dedicated to analyzing and broadening Chicago’s mainstream media and to building Chicago’s independent media,” while MPIMC states that it is an “ad hoc coalition of viewers and civic organizations concerned about the vitality of the electoral process.” CMA and MPIMC Petitions to Deny, at Note 1. 2 We will exercise our discretion and consider all of the pleadings, and allegations raised therein, that have been filed by the parties. Thus, we need not determine whether CMA or MPIMC have standing. 2 broadcasters have wide discretion in selecting news programming, but contend that the paucity of coverage of local elections here is inconsistent the principle of localism that the Communications Act demands. The oppositions argue that the attached study is flawed as a means of determining whether Chicago and Milwaukee stations have served the public interest during the license term since it covers only a limited period of time and only concerns one type of programming. According to the oppositions, the type of election coverage provided lies within a licensee’s editorial discretion, which they have not exercised in bad faith. According to the licensees, it is overall “responsiveness” to local issues, rather than the narrow subset of local election coverage, that is most relevant in determining whether a station’s programming has served the public interest. Some Chicago licensees also argue that there were no Illinois state-wide elections, no Chicago mayoral election, and no other state or local elections of similar importance to a wide sector of the station’s audience during the one-month period covered by the study, and, thus, it was not unusual that there would be relatively few stories covering local non-federal elections. Discussion. The Commission applies a two-step analysis of a petition to deny under the public interest standard. The petition must first contain specific allegations of fact sufficient to show that granting the application would be prima facie inconsistent with the public interest.3 This first step of the public interest analysis “is much like that performed by a trial judge considering a motion for directed verdict: if all the supporting facts alleged in the [petition] were true, could a reasonable factfinder conclude that the ultimate fact in dispute had been established.”4 "Allegations within these documents that consist of ultimate, conclusionary facts or more general allegations on information and belief, supported by general affidavits, are not sufficient."5 If the allegations meet this first step, then the Commission will designate the application for hearing when the allegations, together with any opposing evidence before the Commission, raise a substantial and material question of fact as to whether granting the application would serve the public interest, or if the Commission is otherwise unable to conclude that granting the application would serve the public interest.6 Section 326 of the Act and the First Amendment to the Constitution prohibit any Commission actions that would improperly interfere with the programming decisions of licensees.7 Because of this statutory prohibition, and because journalistic or editorial discretion in the presentation of news and public information is the core concept of the First Amendment’s Free Press guarantee, the Commission has very little authority to interfere with a licensee’s selection and presentation of news and editorial programming.8 The Commission has long held 3 47 U.S.C. §309(d)(1); Astroline Communications Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (“Astroline”). 4 Gencom, Inc. v. FCC, 832 F.2d 171, 181 (D.C. Cir. 1987). 5 Id. at 180, n. 11. 6 Astroline, 857 F.2d at 1561; 47 U.S.C. §309(e). 7 47 U.S.C. §326; U.S. CONST., amend. I. 8 See, e.g., National Broadcasting Company v. FCC, 515 F.2d 1101, 1112-1113, 1119-1120, 1172 (1974), vacated as moot, id. at 1180, cert. denied, 424 U.S. 910 (1976); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 124 (1973); Hunger in America, 20 FCC 2d 143, 150-51 (1969). 3 that “[t]he choice of what is or is not to be covered in the presentation of broadcast news is a matter to the licensee’s good faith discretion,” and that “the Commission will not review the licensee’s news judgments.”9 The petitions have not provided evidence that the named licensees exercised their editorial discretion in bad faith. Quantity is not necessarily an accurate measure of the overall responsiveness of a licensee’s programming.10 The study provided only concerns one type of programming, local election coverage just prior to the 2004 election. It does not demonstrate that television programming in Chicago or Milwaukee has generally been unresponsive. The Commission, however, currently has pending a rulemaking seeking to standardize and enhance television broadcasters’ public interest disclosure requirements.11 In initiating this rulemaking, the Commission has sought, in part, to promote discussions between the licensee and its community about how best to meet the local public interest obligations of the community a broadcaster serves. In the meantime, we urge all viewers and listeners, including such organizations as CMA and MPIMC, to raise their programming concerns directly with their local broadcasters. Accordingly, the Petitions to Deny filed by Chicago Media Action and the Milwaukee Public Interest Media Coalition ARE DENIED. Sincerely, Barbara A. Kreisman Chief, Video Division Media Bureau cc: Howard F. Jaeckel, Esq. CBS Broadcasting, Inc. 1515 Broadway New York, New York 10036 F. William LeBeau, Esq. Senior Counsel NBC Telemundo License Co. 1299 Pennsylvania Avenue, NW 11th Floor 9 American Broadcasting Companies, Inc., 83 FCC 2d 302, 305 (1980). See also Dr. Paul Klite, 12 Com. Reg. (P&F) 79, 81-82 (MMB 1998), recon. denied sub nom., McGraw-Hill Broadcasting Co., 16 FCC Rcd 22739 (2001). 10 Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, 98 FCC 2d 1076, 1090 (1984). 11 In the Matter of Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, Notice of Proposed Rulemaking, 15 FCC Rcd 19816 (2000). 4 Washington, D.C. 20004 Divora Wolff Rabino, Esq. Vice President, Law & Regulation ABC, Inc. 77 West 66 Street, 16th Floor New York, New York 10023 WGN Continental Broadcasting Company c/o R. Clark Wadlow, Esq. Sidley Austin Brown & Wood LLP 1501 K Street NW Washington, D.C. 20005 WCIU-TV Limited Partnership c/o J. Brian DeBoice, Esq. Cohn and Marks, LLC 1920 N Street, NW Suite 300 Washington, DC 20036 Molly Pauker, Esq. Vice-President Fox Television Holdings, Inc. 5151 Wisconsin Avenue, NW Washington, D.C. 20016 Paxson Chicago License, Inc., and Paxson Milwaukee License, Inc. c/o John R. Feore, Jr. Dow, Lohnes & Albertson, PLLC 1200 New Hampshire Avenue, NW Suite 800 Washington, D.C. 20036 Journal Broadcast Corporation Mace J. Rosenstein, Esq. Hogan & Hartson 555 13th Street, NW Washington, D.C. 20004 WISN Hearst-Argyle TV, Inc. c/o Mark J. Prak, Esq. Brooks Pierce McLendon Humphrey & Leonard, LLP 1600 Wachovia Capitol Center 150 Fayetteville Street Mall Raleigh, North Carolina 27601 5 WCGV Licensee, LLC, and WVTV Licensee, Inc. c/o Kathryn R. Schmeltzer, Esq. Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, D.C. 20037 TV 49, Inc. Denise B. Moline, Esq Law Offices of Denise B. Moline 1212 South Naper Boulevard Suite 119 Naperville, Illinois 60540 Illinois Broadcasters Association c/o Richard R. Zaragoza, Esq. Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, D.C. 20037 6 APPENDIX Stations Named in Petitions to Deny CALL SIGN COMMUNITY OF LICENSE LICENSEE FILE NO. FACILITY ID NO. WBBM-TV Chicago, IL CBS Broadcasting, Inc. BRCT- 20050801AFV 9617 WMAQ-TV Chicago, IL NBC Telemundo License Co. BRCT- 20050801CEL 47905 WLS-TV Chicago, IL WLS Television, Inc. BRCT- 20050801CUZ 73226 WGN-TV Chicago, IL WGN Continental Broadcasting Company BRCT- 20050801BXY 72115 WCIU-TV Chicago, IL WCIU-TV Limited Partnership BRCT- 20050801ADO 71428 WFLD(TV) Chicago, IL Fox Television Stations, Inc. BRCT- 20050729DSN 22211 WCPX(TV) Chicago, IL Paxson Chicago License BRCT- 20050729AGG 10981 WSNS-TV Chicago, IL NBC Telemundo License Co. BRCT- 20050801CFO 70119 WPWR-TV Gary, IN Fox Television Stations, Inc. BRCT- 20050401AQB 48772 WTMJ-TV Milwaukee, WI Journal Broadcast Corporation BRCT- 20050729CYF 74098 WITI(TV) Milwaukee, WI WITI License, Inc. BRCT- 20050729DRL 73107 WISN-TV Milwaukee, WI WISN Hearst- Argyle TV, Inc. BRCT- 20050801CEF 65680 WVTV(TV) Milwaukee, WI WVTV Licensee, Inc. BRCT- 20050801BDQ 74174 WCGV-TV Milwaukee, WI WCGV Licensee, LLC BRCT- 20050801BBZ 71278 WVCY-TV Milwaukee, WI VCY America, Inc. BRCT- 20050801AGS 72342 WMLW-CA Milwaukee, WI Channel 41 and 63 Limited Partnership BRCT- 20050801ADM 71422 WJJA(TV) Racine, WI TV-49, Inc. BRCT- 20050725ABE 68545 WWRS-TV Mayville, WI National Minority T.V., Inc. BRCT- 20050729DNH 68547 WPXE(TV) Kenosha, WI Paxson Milwaukee License, Inc. BRCT- 20050729AIH 37104 WDJT-TV Milwaukee, WI WDJT-TV Limited Partnership BRCT- 20050801ADL 71427 7 8