<<

---.

"'iudge' ofwhat the listenin~ public ought to heat ... :,40 Fot b~\\~t ()~ WOlSt, the C()\Ut

said, "editing is what editors are for; and editing is [the] selection and choice of

material,''''! .That the First Amendment also is designed t9 protect the rights ofindividual

speakers. or even that it plays a vital role in ensuring the expression ofdiverse viewpoints,

is beside the point. "To agree that debate on public issues should be 'robust and wide­

open' does not mean that we should exchange 'public trustee' broadcasting, with all its

limitations, for a system ofself-appointed editorial commentators.'J42

In short, the Petition makes a plea for government oversight ofnews

content that is in~istinguishable from the claims ofMedia Watch and the Community

Coalition for Media Change, which ~e Commission soundly rejected. Consistent with

this clear and decisive precedent, and the strictures ofthe First Amendment, the

Commission should reject the Petition for failing to make a prima facie showing that

WWQR-TV has not served the public interest. I D. The Petitioners Misapprehend the Legal Standard AppUcable to Review' ofWWOR-TV's License Renewal AppUcation

._n....._... _...... '. Of· The Petition also suffers from a fatal flaw in its legal reasoning. The

Petitioners repeatedly assert that the Commission has "specifically imposed special

obligations" on WWOR-TV, and that the station has "additional, unique obligations to

40 Co/umbiaBroadcasting$ystem, 412 U.S. at 124.

4\ Id.

42 Id. at 125.'· Even under the now defunct "fairness doctrine;' courts acknowledged that "[n]o broadcaster [could] present all colorations ofall available public issues.... Choices have to be made and •.. the choices must be made by those whose mission it is to inform, not by those who must role." See National Broadcasting Co. v. FCC, 516 F.2d 1101, 1113 (D.C. Cir. 1974).

15

•••1\... _tE',:;iRi4Ji i iZliittiWi4Ai1 idas iEi New Jersey. ,,43 The Petitioners twice cite language from the FCC order granting the

station pennission to relocate to New Jersey: "we expect [the licensee) to perform a .

higher degree ofservice to this Grade B coverage area than is normally required ofa

licensee.'''" The Petition insinuates that this language compels the Commission to hold

WWOR-TV's renewal application to a heightened standard ofreview.

The Commission, however, already bas had opportunity to consider and

reject this very argument. In reviewing an application seeking consent to the sale of

WWOR-TV in 1986, the Conunission was presented with a challenge asserting that the

station's programming had failed to serve the needs and interests ofNew Jersey

residents.4s The petitioners in that case specifically cited the same language relied upon

by the Petitioners here to.claim that WWOR-TV "assumed a higher obligation to be

responsive to the issues and concerns ofthe service area than would be the case for a

licensee serving any other area,'t46 The Commission disagreed, finding WWOR-TV's

"higher obligation" extends only to balancing service between its city oflicense and other

areas within the station's Grade B contour.47 The FCC made clear that WWOR-TV's

"obligation to serve the issues and concerns ofnorthem New Jersey is not different in

kind ordegree from any licensee's obligation to serve its community oflicense,'148 and

43 Petition, at 2, 4, 13, 15-16.

« Id. at 4. 16.

45 See RKO General. Inc., 1 FCC Red at 1086.

46 [d. 47 Id.

48 Id. at 1087.

16

_i.iMiiiiiWiiiil•••a_,.,,--:: concluded that WWOR-TV's ''perfonnance should be judged in the same maJUler as any

other television station in it[s] overall performance, except that its performance will be

tied to northern New Jersey, not primarily Secaucus.,t4~

To the degree that the Petitioners are complaining about the specific

amount ofNew Jersey programming carried by WWOR-TV, the CommiSsion also has

emphatically rejected a "quantitative approach" to analyzing licensee performance.so

Rather, licensees have broad discretion to select the specific types and amounts of

programming necessary to respond to community needs. More specifically, the .

Commission bas refused to find that WWOR-TV should be entitled to less latitude than a

typical station in the exercise ofreasonable editorial discretion. "Our review of

[WWOR-TV]'s programming need be no more extensive than we generally undertake in

reviewing whether the issues and concerns ofa particular service ~a have been met.,~Sl

Thus, "must as we would not purport to tell a licensee ofNew York City how much.

coverage it should devote to high school sports, neither will we intrude in the

editorial discretion ofa New Jersey station."S2

O.r1J.y ifthey had demonstrated that WWOR-TV provided "nominal"

progranuning responsive to New Jersey could the Petitioners meet their extremely high

burden to establish a prima facie case against the station's renewal application. But given

49 [d. at 1086.

50 RKO General. Inc., I FCC Red at 1087 (citing In re Revision ofProgramming and Commercialization Policies. Ascertainment Requirements, and Program Log Requirements/or Commercial Television Statio1fS, 98 F.e.C. 2d 1076, 1093-94 (1984». 51 Id. 52 Id. at 1088. 0

17

&ii&iW'UiiMiiiii•• = au, the extraordinary breadth ofissue-responsive programming detailed in WWOR·TV's

issues/programs lists, the Petitioners necessarily have failed to meet their bW"den and the

Petition must be dismissed.

In. SE'ITING ASIDE THE SERIOUS CONSTITUTIONAL IMPLICATIONS OF CONTENT REVIEW, THE PETITIONERS' ALLEGATIONS STILL FAIL TO RAISE A SUBSTANTIAL AND MATERIAL QUESTION ABOUT WWOR-TV'S LEVEL OFSERVICE TO NEW JERSEY Given the First Amendment limitations, it is entirely inappropriate

for the Commission to undertake a review ofa broadcast station's editorial choices.

But even ifthe Commission were to oonsider the merits ofthe Petitioners' speoific

arguments, it would find that the Petition nonetheless utterly fails to raise any

substantial or material questions that would warrant a hearing.

A. The Petitioners' Own Data Confirms That Fox: Has Broadcast Substantial Amounts ofIssue-Responsive Programming to New Jersey Residents

As noted above, Petitioners essentially raise three charges against

WWOR-TV's service: 1) the station allegedly failed to provide a sufficient amount of

election coveragej 2) the station's issues/programs lists allegedly reflect an insufficient

quantity ofnews coverage; and 3) the station's newscasts during approximately 12 days

in April 2007 allegedly contained too few New Jersey-centric stories.53 Even accepting

the Petitioners' own facts and data, however flawed they may-be, there can be no

question that Fox ..has provided abundant issue-responsive programming to New Jersey

residents. The Petition itselfcontains more than sufficient information to confirm that

WWOR-TV has broadcast a substantial amount ofprogramming specifioally focused on

53 See, e.g., Petition, at 2. 18

&111111"'1&"".'."._.'.'__ New lersey.54 At the same time, however, the Petitioners' attempts to characterize

WWOR-TV's service as deficient suffer from a variety ofcritical flaws.

1. The ERgleton Study

First, the Petition cites to a study prepared by the Eagleton Institute of

Politios at Rutgers University, which attempted to measure news coverage ofthe

November 2005 New Jersey state elections on certain broadcast and

channels during a 30-day window leading up to election day.ss The Petitioners argue that .

these elections were ''particularly critical" to New Jersey in part because oftwo "closely

contested and visible" federal CQngressional races.56 The November 2005 election,

however, did Dot include any races for the Congress (which occur only in

even-nwnbered years)." In any event, the Petitioners suggest that the study finds

WW9R-TV to have been deficient in its coverage ofNew Jersey politics.

The study itself, though, explicitly states that it was ''not designed to

provide an analysis of&llloca! news programming available to New Jersey residents ....

Nor does it include sp~ial. ~1~~9n I!e~s.programming ..• ~t: j~t.~~~pr9grams sh~~ _..

on" weekends.58 It therefore does not even attempt to evaluate all political coverage

54 See id. at Exhibits A-D. SS See id. at 4; see also id. at Exhibit A. 56 Seeid. at 4. 57 The Petition also erroneously reports that only 67 percent ofWWOR-TV's election stories covered by the study were directly related to New Jersey. But as the Petition recognizes, 10 ofthe station's 13 stories focused on New Jersey races - which totals 77 percent. See id. at S. 51 See Television Coverage ofthe 2005 New Jersey Election: An Analysis ofthe Nightly News Programs on Local New Jersey, New York and 19

.ili.lli.M••••_il.'.IL4t&lbi . iL:_:WU". broadcast by WWOR-TV. Tn addition. the study addressed programming only during a .

very briefwindow in time - the 30 days leading up to the election. 59 This time amounts I.

to just 1 percent ofthe time that Fox has been the licensee ofWWOR-TV, a manifestly

Wlfair sample size. Accordingly. the study cannot serve as the basis for a thorough

analysis ofWWOR-TV~s overall coverage ofNew Jersey politics.

Nonetheless, even the Eagleton report recognizes that at least a quarter of

the analyzed WWOR-TV newscasts included election coverage during the study period.60

The Eagleton study also lauds WWOR-TV for broadcasting a higher percentage of

election stories related to New Jersey than the other commercial broadcast stations

reviewed. 61 In addition, the study found that while the average New Jersey election story on all evaluated stations lasted under 2.5 minutes, WWOR-TV~s average story length

was over 4 minutes (and two ofthe station's stories lasted longer than 7 minutes each).62

Thus, ifanything, the study shows that WWOR-TV provided more in-depth treatment of

Stations, attached as Exhibit'A to the Petition (the "Eagleton Study")~ at 8 (emphasis in original).

.59 Seeid.

60 See id at 9. ·The study methodology indicates that one-hour news programs (such as those broadcast by WWOR-TV) were treated as two half-hour programs for purposes ofthe results. Thus, the 44 WWOR-TV broadcasts captured by Eagleton really amount to 22 newscasts; it is not clear why Eagleton did not review or analyze the 8 additional newscasts that the station broadcast dming the study periOd. ht any case, the study recorded 11 WWOR-TV newscasts with an election story, but there is not sufficient infonnation to ascertain how often the 11 stories aired during different half-hour segments on the same night (as opposed to different newscasts altogether). It is highly likely that, ifproperly recorded as 22 hour-long programs, fat'more than 25 percent ofthe station's newscasts (and possibly as much as SO percent) contained an election story.

61 See id at 15-16.

62 See id. 20

diiiiMdiii••idi=_Z.. saaSPOi' &SAUl! :U"_ -.-

elections issues than othet stations, and \he ~et\t\one'm' c\aim \\'lat tb.e Utesu\t~ ... t\eat\~

indicate the station's failure to serve its community oflicense" is utterly without merit.63

The Petitioners also criticize WWOR-TV for failing to focus on any "local,

i.e. non-gubernatorial" races during the newscasts evaluated by Eagleton.64 Why the

Petitioners would contend that the race for governor is not local or, by implication,

important, to residents ofNew Jersey is, to say the least, baffiing. Regardless, it was 'a

perfectly appropriate exercise ofgood faith discretion for Fox to focus on a govettlor's

race that the Petitioners freely acknowledged as "critical" and of''broad interest for the

people ofNew Jerscy.,,6S And, ofcourse, the Commission has made quite' clear that it

will not sit in review ofthe editorial choices that broadcasters make in the selection of

what news to cover.66 It is not surprising, incidentally, that Fox would choose to

concentrate more time and resources on the governor's race in lieu ofstate General

Assembly races during the weeks leading up to election day. Precisely because WWOR-

TV is obligated to focus on a much larger than typical "community" (i.e., all orits Grade

B contour area in New Jerse)! and not just Secaucus), there UQ, times when it must de.vot,e.

63 Petition, at 6. The Eagleton study itselfdoes not go nearly as far as the Petitioners would like to take it- the study merely concludes that WWOR·TV's results were "at best mixed." Itnever says that the station's news coverage constitutes a. "failure" to serve its community. See Eagleton Study, at 22. 64 Petition, at 5.

65 [d. at 4.

66 See, e.g., In re American Broadcasting Companies, Inc., 83 F.C.C. 2d at 305.

21

dUiiW"iiMii,._••z;$U:.AAS" :Wii'_ its resources to broader coverage responsive to viewers throughout northern New Jersey.67

Most importantly, though ignored by the Petitioners, WWOR-TV provides.

substantial coverage ofissues related to New Jersey politics and elections via its non-

newscast programming. The station regularly broadcasts special coverage ofpolitical

events, such as Gov. Jon Corzine's live press conference in March 2006 to discuss the

state budget and the need for tax increases.68 WWOR-TV also airs weekly public affairs

programs that provide more extensive treatment ofpolitical issues. In fact, beginning in

the FaJI of2006, the station broadcast Ask Congress, which each week featured an in-

depth interview with one ofNew Jersey's Congressional Representatives or U.S.

Senators.69 After conducting interviews with both Senators and nine ofthe state's 13

Representatives (all were invited), the station transitioned the program to a show

entitled New Jersey Now, which uses a similar fonnat to conduct interviews with

members ofthe New Jersey General Assembly and state senators, as well as political

leaders and candidates for local positions such as a town's Board ofEducation. 70

WWOR-TV also broadcasts Real Talk, which focuses on civic and community leaders;

the program recently featured interviews with representatives ofNewark Now (an

organization devoted to equipping and empowering Newark residents with the tools and

67 The Petitioners do not attempt to show that WWOR·TV failed to provide Don· gubernatorial political news outside the timeframe studied by Eagleton, nor could they, given the substantial efforts that Fox has devoted to Iocal.politics during its public affairs programming (described below). 68 See Declaration ofMolly Pauker, attached hereto as Exhibit A. 69 See id. 70 Seeid.

22

&f&iE'iiMifi••_Z: U:.2i! .'0.:_ resources needed to transfonn their comm~tie8 through neighborhood-based

associations and tenant organizations) and AARP New Jersey (which advocates for

enhancing the quality oflife for all people as they age).7J

The Petitioners pay scant attention to these programs~ which supplement

the election coverage provided in WWOR-TV's regularly-scheduled newscasts and

amply demonstrate that the station does not ignore New Jersey political news.

2. IssueslProgrillll Lists

With respect to the Petitioners' second argument- that the station's

issues/program lists and New Jersey service reports allegedly reflect a dearth ofNew

Jersey news coverage - the Petition itself suffices to thoroughly undennine the claim.72

Exhibit B to the Petition contains a list ofnews stories, culled from WWOR-TV's

issues/programs 'lists just for 2006 and the first three months of2007, which the

Petitioners classify as New Jersey-focused. 7~ Setting aside that the Petitioners use an

unduly narrow definition for programming they consider responsive to New Jersey

residents; the Petition identifies 285 New Jersey-centric stories broadcast by WWOR-TV

7 in the past 15 months. • Relying on the New Jersey service reports appended to WWOR-

71 See id. Earlier in its license term, WWOR-TV broadcast other weekly public affairs programs, which also catered to New Jersey residents' needs and interests. Garden State Matters; for example, focused on a variety oftopics ofloeal interest, such as an interview with the New Jersey Public Utilities Board preSident to discuss the that affected the state in 2004. BlackExperience and Hispanic Horizons, meanwhile, centered on subjects ofpartieular concern to the large Afriean American and Hispanic populations, respectively, in northern New Jersey. S~,e Declaration ofMolly Pauker, attached hereto as Exhibit A. 72 See Petition, at 6-9.

73 See id. at Exhibit B.

74 Seeid. 23

BhiiMidiMid••- d*ISZUWi2 ,...... TV's renewal application, the Petition also identifies more-than 1,350 stories targeted to

the state since 1999.75 Thus, by the Petitioners' own oalculation, the station clearly has

broadcast far more than a "nominal" amount ofNew Jersey-focused programming.

Importantly, however, the Petition classifies stories as serving New Jersey

only ifthey relate to a specific event that occurs within the geographic boundaries ofthe

state. The Petitioners irrationally exclude from their analysis any news story that relates

to national or regional issues, notwithstanding that coverage ofthe broader world is

indisputably responsive to New Jersey residents' needs and interests. Indeed, stories

about developments in the Iraq war, a Presidential election or anational cnsis like

Hurricane Katrina would merit no credit in the Petitioners' myopic view ofwhat matters _

to New Jersey viewers. Likewise, stories focused on developments in

warrant no recognition, even though tens ofthousands ofnortbern New Jersey residents

work in or otherwise visit the city every day.76 Surely the station's coverage orits

community's larger metropolitan area is not irrelevant to the analysis ofits overall level

ofservice.71

75 See id. at Exhibit C. 76 There are numerous examples ofstories ignored by Petitioners because they related geographically"to New York, even ifthey indisputably would be of interest to New Jersey residents. For instance, WWOR-TV ran reports about the U.S. Enviromnental Protection Agency declaring New York to be ranked worst for "dirtiest air" - a potential health issue for nearby residents - and stopes relating to regional transit issues that necessarily had an impact on the lives of New Jersey residents that commute to the city. See, e.g., id. at Exhibit C, pages 23,24, 30 and 47. 77 The Petition also appear to have incorrectly classified a nwnber ofstories as unrelated to New Jersey despite the fact that they clearly relate to the state - even using the Petitioners' unduly narrow definition. For example, the Petition classified a story about security at Port Elizabeth - featuring a visit by New Jersey Sens. Lautenberg and Menendez - as ''NationallInternational.'' Similarly, the 24

Mnlildli.inlii__ffiiifMPHriJi : IE j 444 iWiii4PC ;. U:iZEi: , :s ~~-.-- -~~------~

(and the station's New Jersey service reports appended to its renewal application) as if

they reflect an exhaustive index ofany and every issue addressed in WWOR-TV's

programming during the past six and one-haJfyears. The Petitioners rely on these lists to

attempt to calculate the precise number ofthe station's stories relating to New Jersey; the

Petition then declares that the "quantity ofcoverage provided by WWOR is not adequate

to properly serve the community oflicense.,,78 The lists, however, are orilymeant to be

exemplary ofWWOR-TV's service efforts; itwould be nearly impossible for a broadcast

station to catalogue literally every single item broadcast over a multiple-year license term.

Thus, the Commission's rules only require (as the Petition itselfnotes)79 that broadcast

stations prepare lists of"programs that have provided the station's most significant

treatment ofcommunity issues ....,,80 Even though the Petition identifies more than

1,000 relevant news stories in the station's New 1ersey service reports, it still woefully

undercounts the coverage provided by WWOR-TV that is responsive to New Jersey

Petition classified a report ~out low-eost prescription drugs available at New Jerseyphannacies as 4'Other/Unidentified Loept" See, e.g., ttl. at Exhibit C, pages 62 and 66. None ofthese reports arc included in the Petitioners' count of 285 New Jersey-cen1ric news stories. 78 Petition, at 6. 'The Commission, however, long ago detennined not to conduct "quantitative" analyses oflicensees' performanc~ at renewal time. See In re Revision ofProgramming and Commercialization Policies, 98 F.e.C. 2d at 1093­ 94. 79 See Petition, at 6. 80 47 C.F.R. § 73.3526(e)(11)(i) (emphasis supplied).

2S viewers.8/ Accordingly, there is no validity to Petitioners' efforts to measure the quantity ofWWOR·TV New Jersey coverage based solely on issues/programs lists.82

Petitioners also claim that the station's issues/programs lists do not show

"reasonable coverage" ofissues in specific municipalities (snch as Elizabeth and Edison

Township) within WWOR-TV's extended service area.83 This claim makes little sense, for Petitioners appear to suggesting that anews story is responsive to a resident ofEdison

Township only ifit addresses an issue exclusive and unique to that area. Ofcourse, residents of communities across northern New Jersey care about more than just their own locality, and the.breadth ofNe~ Jersey-centric issues addressed by WWOR-TV programming is responsive to viewers across the service area.84 And as the Commission has made clear in a prior evaluation ofWWOR-TV's service, "[a] licensee need only

81 The lists do not reflect, for example, each ofthe numerous instances in which WWOR-TV broadcast special coverage oflocal conununity events, such as the Muscular Dystrophy Telethon or various civic pride parades. Nor do they account for the multitude oftimes that station personnel (including on-air talent) volunteer at charitable events throughout the community. See Declaration of Molly Pauker, attached hereto as Exhibit A. Although ignored-by the Petitioners, all ofthese examples serve to further demonstrate the station's commitment to New Jersey. . 82 The Petition, at 8, also chides WWOR-TV fQr "report[ing] only 10 public service announcements" during 2005-06 (and none during other time periods). In reality, WWQR-TV has broadcast more than 2(),OOO PSAs on a wide range oftopics in the past two years alc!De. See Declaration ofMoUy Pauker, attached hereto as Exhibit A. That the station chose, not ta .list the vast majority ofits PSAs in the speCific reports reviewed by Petif,joners hardly ~eans that no PSAs were aired. The Petitioners' quick jump to a faulty conclusion demonstrates the danger in their attempt to draw universal conclusions based on reports that never were intended to be comprehensive.

83 Petition, at 9. 84 See License Renewal Applicatwns, 5 FCC Red at 3848 (Uissue-responsive programming ofgeneral concern may be considered to address the needs of subgroups within a community").

26 nave addressed community issues with whatever types ofprogramming, that in its

reasonably exercised discretion, it detennined was appropriate to those issues."BS In any

case, the issues/programs lists provide examples ofsignificant issues addressed by

WWOR-TV in each ofthe municipalities identified by the Petition, as the Petition itself

makes clear.86

3. April2007 Newscasts

Finally, the Petitioners fare no in attempting to rely upon their own

review ofapproximately 12 days ofWWOR-TV's local newscasts during April 2007.87

As noted ahove,no rational conclusions about a station's overall service to its community

can be drawn from so limited an amount oftime. Nor can the Commission evaluate a

station's efforts based only on local newscasts, which ofcourse is only one ofmany types

ofprogramming .that WWOR-TV offers to be responsive to its viewers t interests. But

even within the briefperiod covered by the Petitioners' newscast analysis; there is no

8S In re RKO General, Inc., 1 FCC Rcd at 1086; see also License Renewal Applications,S FCC Red at 3848 (holding that licenses are not required to present progrcmuniDg,concemmg a particular segment ofthe community .tin proportion to their pca'centage ofthe overall community's population" and need not ·~ond[] to problems ofevery community group''). Moreover, to the degree that Petitioners identify a handful ofnews subjects that they claim were not covered by the station,.~ee Petition, at 11, 13, it lies within the licensee's discretion to detennine w~ch subjects warrant news coverage. A "licensee is under no obligation to caver each and every newsworthy event which occurs within a station's service area.~' In re American Broadcasting Companies, Inc., 83 F.e.e. 2d at 305. .

86 See Petition, at 9·11.

87 See id. at 11-13. The Petition indicates that the analysis focused on 12 days, though it acknowledges that 1 day was omitted due to a urecording error." [d. at II. The eXhibit offered in support ofthis analysis, however, shows two distinct days during the Petitioners' 12-day window for which no data is provided. See id. at Exhibit D. .

27

="E'.'.'_iil"'Z'EL5iEZ_z:za evidence to suggest that WWOR·TV has $hitked i.ts obligation to covet issues of importance to New Jersey.

Indeed, the evidence supplied by the Petitioners reflects that each of

WWOR-TV's newscasts during the period studied spent time addressing stories specific to New Jersey.88. Again the Petitioners inappropriately excluded from consideration nation~ and regional stories. but even based on the calculations contained in the Petition. the station provided an average offive stories per night, lasting on average nearly six minutes.89 The summaries proVided in E,mibit D to the Petition make it quite difficult to tell exactly how the Petitioners analyzed WWOR-TV's newscasts, and it is unclear . whether similar stories were treated the same wayan different days. The summary data reported for Apri112, for instance, says that the station aired 6 New Jersey stories totaling just under 4 minutes.9o But the supporting details supplied by Petitioners actually reveal

9 10 stories totaling more than 8 minutes. \ Similarly, the summary for April 13 reflects 7

92 stories/8.S minutes, but the detail shows 8 stories lasting more than 11 minutes. Even if

the·newscasts studied did constitute a representative sample - and they do not - these

ip'egularities make it impossible for the analysis to be. considered reliable.

88 See id.

89 Seeid.

90 See id. at Exhibit D, Summary.

91 See id. at Exhibit D, page 1. 92 See id. at Exhibit D, Summary and page 4.

28 Moreover, although they offered iio justification for the decision to

evaluate 12 apparently random days in April 2007,93 the Petitioners noted that this time

period happened to coincide with three significant national news events related to New

Jersey: the Don ImusIRutgers Women's Basketball scandal; the car wreck involving Gov.

Jon Conine; and the powerful rainstorm that caused massive flooding and property

damage. 94 As the Petitioners acknowledge, WWOR:-TV provided detailed coverage of

these news stories.9S But incredibly, the Petitioners then cIj.ticize WWORwTV for .

devoting too much attention ta these stories in comparison to other New Jersey news. 96 It , is patently unfair, however, for the Petitioners to summarily dismiss WWOR-TV's efforts

to cover important local stories in order to claim that the station does not effectively

'cover local news. Ifanything, Fox's coverage ofthese critical local stories only serves to

confinn its commitment to devote time and resources to address the most compelling

issues facing its viewers.

Ii1 short, the Petitioners' claims are riddled with flaws and inconsistencies,

and they fail to raise any legitimate questions regarding WWOR-TV's renewal

application.

93 See RKO General, Inc., 1FCC'Rcd at 1088, n. 4S (criticizing a study purporting to measure WWOR-TV's local programming for. among other things, days chosen for evaluation: "We do not know ... whether the days selected represent [the licensee's] best, worst or typical performance").

94 See Petition, ai 12.

95 See ill.,' see also id. at Exhibit D. 96 See Petition, at 13.

29 B. contrary to the Petitiolt's unsupported SpeculaUoD, Fox Remains Committed to WWOR-TV's Physical Presence in New Jersey

Relying on mere conjecture~ the Petitioners also question WWOR-TV's

commitment to a physical presence in New Jersey as well as its long-term commitment to

identifying with the state.97 The Petition speculates, for example, that Fox is preparing to

relocate the station's operations out ofNew Jersey, and that WWOR-TV has taken on a

strong New York identity.98 These unsupported allegations also fail to raise any question

about the merits ofthe WWOR-TV renewal application.

Fox reiterates here what it has told the Commission before - it has no

plans to relocate WWOR-TV's operations out ofNew Jersey.9~ On the contrary, Fox. is

committed to maintaining a significant physical presence in the state. WWOR-TV

operates its main studio out ofits Secaucus facility, which also serves as the headquarters

for the station's $ubstantial news-g~thering apparatus. Fox employs 80 full-time

personnel in the ~tation's news department, including news managers, news anchors,

sports reporters, weathercasters, reporters, editors, and photographers. lOG WWOR-TV

also maintains a sa,tellite news gatherin~ truck for both itselfand sister station

97 See id. at, 14. 98 See id. 99 See Letter from Maureen 0' Connell, Vice President, Regulatory and Government A(fairs, News ,Corporation, to Kenneth Ferree, Chie~ Media Bureau, dated October 27. 2004 (noting that "Fox has no plans to relocate [WWOR-TV] to New York, bu~ rather intends to continue to have a strong physical presence in its state oflicense"). .

100 See Decb)ration ofMolly P,auker, attached her-eto as Exhibit A.

30

.,.,.....'.18..'_""._.".:__" WNYW(TV) at the Secaucus facility, along with five other live news trucks that service both stations' New Jersey newsgathering efforts. IOI

Petitioners also cite to the WWOR~TV web site (www.my9ny.com). and its branding as "My9NY" in promotional materials, as an indication that Fox haS

"eschewed any reference to its New Jersey roots."IOZ None ofthis is relevant to the question ofwhether WWOR-TV has broadcast issue-responsive programming during its license tenn, and the Commission need not consider these allegations any further,103 It is hardly remarkable, though, that a television station operatin$, as the affiliate for the

MyNetworkTV television network in the New York designated market area - the nation's ! largest - would brand itselfin a. way meant to highlight its stat$. These branding efforts, relating to network affiliation, do nothing to undermine the station's commibnent to providing its viewers with news and information uniquely suited'to New

Jersey residents, as amply demonstrated above.

101 Seeid.

IOZ See Petition, at 14. 103 See, e.g., In re, WWOR-TV, Inc" 6 FCC Red 193,206 (1990) (finding that W:WOR-TV's~use of'promotional names that failed to mention New Jersey was irrelevant); In"re,RKO General, Inc., 1 FCC Red at 1088, n. 47 (finding that promotional materials bad no bearing on analysis ofWWOR-TV's New Jersey programt,ning efforts).

31 IV. CONCLUSION

As demonstrated above. the Petition reveals a disturbing disregard for the fundamental constitutional principles that have permitted the development ofa robust and so critical to the functioning ofdemocracy. Although reasonable people can disagree about the press' editorial choices, the Petitioners would have the govenunent

~ecomc the final arbiter ofthose disagreements when it comes to broadcastjoumalism.

'fhePetition's proffered approach, however, conflicts so gravely with constitutional principles that it must be dismissed.

Regardless, the Petition fails to allege a prima facie case that WWOR­

TV's overall programming effort throughout its license term failed to selVe the public interest. Perhaps that comes as no surprise, given Fox's ~ecord ofexemplary service to

32 ..~------

viewers throughout northern New Jersey. Accordingly, consistent with controlling

precedent, and the strictures ofthe Constitution, the Petition should be dismissed.

Respectfully submitted,

FOX TEr:ijION STATIONS, INC.

By: eJ.Le...----- ..... Molly Pauker obnC. Quale Vice President Jared S. Sher , INC. Malcolm 1. Tuesley 5151 Wisconsin Avenue, N.W. SKADDEN, ARPS, SLATE, , D.C. 20016 MEAGHER & FLOM LLP (202) 895-3088 1440 New York Avenue, N.W. Washington, D.C. 20005 Maureen O'CoIUlell (202) 371-7000 Senior Vice President, Regulatory and Government Affairs Its Attorneys 444 North Capitol Street, N.W. Washington, DC 20001 (202) 824-6502 .

Ellen Agress Senior Vice President, Deputy General COMsel . NEWS CORPORATION 1211 Avenue ofthe Americas New York, NY t0036 (212) 852-7204 :.

Dated: May 30. 2007

33

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EXHIBIT A

WkUi.'.".iRS': DECLARATION I, MoJJy Paukcr, hereby state as follows:

I. I am Vice President ofFox Television Stations, Inc. ("FQx"), licensee of WWOR~ TV, Secaucus, New Jersey.

2. I have read the foregoing Opposition to Petition to Deny ofFox, dated May 30, 2007 C'Opposition"), which has been prepared in response to the Petition to Deny, filed April 30, 2006 by Voice for New Jersey, with respect to the licenSe renewal appliQation ofWWOR-TV.

3. Except for matters as to which official notice may bo taken, I have person~ knowledge ofth" facts contained in the Opposition and declare that such facts are truo and correct. In particular, Fox acquired WWOR·TV in July 2001. Since that time, WWOR·TV has broadcast more than 2,000 hours ofresularly..schcduJed local newscasts as well as more than 200 hours ofpublic affairs programming. WWOR..TV also broadcasts breaking news alerts and updates, such as live coverage oroov. Jon Comne's March 2006 press conference regarding.the state budge and the need for tax increases. And the station regularly airs special . coverage oflocal community events, such as the Muscular Dystrophy Telethon or various civic pride parades.

4. WWOR~TV airs two weekly public affairs programs that provide extensive treatment ofNew Jersey political issues. Ask Congr~s$ debuted in the Fall of 2006 IlDd each week featured an in-depth interview with one ofNew Jersey·s U.S. Senators or Congressional R'eprcscntatives. After conducting interviews with both Senators and nine ofthc state·s 13 Representatives (aU were invited), the station transitioned the program to a new 8~OW entitled New Jersey Now, which uses a similar fonnat to conduct interviews with members ofthe New Jet$Cly General Assembly and state senator". as ~1I as political leaders and candidates for !O

S. Earlier in its license tenn, WWOR·TV broadcast other weekly public affairs programsJ which also cat=dto New Jers~y residents' needs and interests. Garden Slale Maltera, for. example. focused on a variety oftopics oflocal interest, such as an interview with the New Jersey Public Utilities Board president to discuss the blackout that affected the state in 2004. Black Experience and Hispanic Horizons, meanwhile, centered on subjects ofparticuJar concern to the

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large African American and Hispanic populations, respectively, in northern New Jers~y.

6. In the past two years alone, WWOR-TV has broadcast more than 20,000 public lt service announcements ("PSAs ), focusing on a variety ofcauscs. including the Boys.,& Girls Clubs ofNew Jersey and CASA ofNew Jersey, which advocates for abused and abandoned children in proceedings before state coUlU. Station personnel (including on·air talent) also routinely volunteer at charitable events throughout northcrJ:l New Jersey.

7. WWOR·TV also broadcasts a variety ofentertainment and sports programming­ including serving as the over-tho-air home ofthe New Jersey Nets as well as Major League Baseball gamcs featUring the Yankees. The station in recent years has aired numerous Big East Conference football and basketball games featuring New Jersey schools Rutgers and Scton HaIJ universities as well.

8. Fox employs 80 full·time personnel in WWOR·TV's news department, including news managers. news anchors. sports reporters, weathercasters, reporters, editors. and photographers. The station also maintains a satellite news gathering truck for both itselfand sister station WNYW(TV) at the Secaucus facility, along with five other live news trucks that service both stationst New Jersey newssathering efforts

I declare under penalty ofpeljury that the foregoing is true and correct. Exeouted on May 30, 2007.

Molly Paukcr Vice President Fox Television StatiOIlS. Inc. ·5151 Wisconsin Avenue, N.W. Was~gtoDt D.C. 20015 (202) 895·3088

2 1l06I9-D.C. Scmr2A - MSW CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy oCthe foregoing Opposition to

Petition To Deny has been served by first-class mail, postage prepaid (except where

otherwise indicated below), as ofthe 30th day ofMay, 2007, on the following persons at

the address shown below:

Barbara Kreisman, Esq. III Clay Pendarvis, Esq.'" Federal Communications Commission ,Media Bureau 44S 121h Street, S.W. Washington, D.C. 20554

.Voice for New Jersey clo Donna SandQfse 1545 Crabapple Lane Plainfield. NJ 07060 ~.Df~~ et'fne M. Coughlan 2J

'" served via electronic mail

7079SS·P.C. server 2.\ • MSW

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