Fox Cites First Amendment In Urging FCC To Renew Broadcast License In Face Of Challenge Over Coverage Of Donald Trump’s False Election Claims

Ted Johnson
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Fox says that the First Amendment limits the FCC from considering whether its news coverage of Donald Trump’s false election claims should play a role in the license renewal of its Philadelphia station.

In a filing this week, Fox Television Station attorneys argued against a petition brought by the Media and Democracy Project, a challenge led in part by former Fox executive Preston Padden. The public interest group is seeking an evidentiary hearing on the license renewal of WTXF-TV, or Fox 29 on the basis of that the company “lacks the character to remain a licensee.”

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The Fox attorneys wrote that such a hearing “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.” Despite the revelations from the Dominion defamation case, the Fox attorneys wrote that the litigation has “no bearing” on the license renewal. Read their response here.

They also wrote that “as explained by Chairwoman [Jessica] Rosenworcel a few years ago, the government making editorial decisions about content in the course of a broadcast license renewal proceeding ‘would be an affront to our First Amendment tradition.'” Rosenworcel was appointed FCC chair by President Joe Biden.

In its challenge to the license, The Media and Democracy Project cited revelations from the recent Dominion case, arguing that it showed that the company engaged in “intentional news distortion” in amplifying the false election claims. They argued that it “amounts to misconduct that violates the FCC’s policy on the character required of broadcast licensees, and was so egregious as to shock the conscience.”

Fox attorneys claimed that the group and Padden are seeking “to conscript the Commission into a public relations campaign that has no place in a broadcast license renewal proceeding.”

“To the contrary, Congress and the Commission wisely designed the license renewal process to be impartial, focused, and subject to clear boundaries as to the scope of the Commission’s review,” the Fox attorneys wrote.

The Media And Democracy Project contends that the false election claims took root not just on Fox News, but that “a good deal of that narrative was broadcast on WTXF-TV and other Fox over-theair television stations.” But Fox attorneys claim that “there is absolutely no evidence that the content about which the Petitioners go on at length ever aired on Fox 29 Philadelphia.” They contend that Media and Democracy Project “simply dwells on the fact that Fox 29 Philadelphia airs Fox News Sunday, a Sunday morning news/public affairs talk show presented in a similar format to those aired on the other three of the big four broadcast networks.”

Fox paid Dominion Voting Systems $787.5 million to settle the defamation case and avoid a potentially lengthy and embarrassing trial. But it also faces a $2.7 billion lawsuit from another election systems company, Smartmatic. A hearing is scheduled for Friday in that case over a discovery dispute involving potential recordings of Zoom and other meetings among Fox News employees in the aftermath of the 2020 election.

Padden wrote on Twitter/X on Thursday, “Never before in the entire recorded history of the Commission has the agency been confronted with a broadcast license renewal applicant who, just months ago, was found by a Court of Law to have repeatedly presented false news. There is no obligation of a broadcast licensee more fundamental than the obligation to serve the public interest by truthfully informing viewers. 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.”

Padden was referring the Judge David Cohen’s summary judgment ruling in the Dominion case, issued just weeks before the trial was to start, in which he wrote that it was “crystal clear” that none of the statements at issue in the litigation were true.

Earlier this week, conservative commentator Bill Kristol and Ervin Duggan, a former FCC commissioner and former president of PBS, also urged the FCC to designate an evidentiary hearing. They wrote that the FCC’s character requirements in broadcast licensing “provides the framework for the Commission to look beyond the four corners of an individual station’s record in licensing proceedings and to consider affiliated entities’ conduct when appropriate.” The Philadelphia station, Fox News and Fox Business all have the same corporate parent, Fox Corp., controlled by the Murdoch family. They cited Dominion deposition testimony and emails that Rupert and Lachlan Murdoch “could have, but didn’t, stop the distribution of clearly false information.”

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