FCC 94-93 Federal Communications Commission Record 9 FCC Red No. 11

3. The Bureau ruled that the 11:30 program qualified as Before the a bona fide news interview, exempt from the provision of Federal Communications Commission Section 315(a) of the Communications Act. The Bureau Washington, D.C. 20554 found that the program was a regularly scheduled edition of the news interview program "Nightline," even though the program ran under a different name, ran longer than In re Complaint of the usual time, and was hosted by Peter Jennings rather than Ted Koppel. Integral here was the Bureau©s finding Lenora B. Fulani and Lenora B. that the "town meeting" or "forum" program format had been used on a regular basis by ABC prior to the "Who is Fulani for President, Ross Perot?" program. The Bureau©s decision specifically cites Fulani©s failure to dispute ABC©s claim that it had against regularly incorporated the "town meeting" or "forum" pro gram format into its "Nightline" series since 1988. The American Broadcasting Companies, Inc., Bureau also found that the selection as to format, content, a/k/a/Capital Cities/ABC, Inc.; KHOG-TV, and participants was under the exclusive control of ABC Fayetteville, AR; KHBS-TV, Ft. Smith, and not the candidate; and that the decisions as to the program©s content and format were made in the exercise of AR; KAIT-TV, Jonesboro, AR; KATV-TV, ABC©s good-faith bona fide news judgment and not to Little Rock, AR; WMTW-TV Auburn, ME; promote the candidacy of any particular individual. WVII-TV, Bangor, ME; WLOX-TV, Biloxi, 4. In her Application for Review, Fulani challenges each MS; WABG-TV, Greenville, MS; WAPT-TV, of the Bureau©s findings above. Generally, Fulani repeats Jackson, MS; WTOK-TV, Meridian, MS; the arguments she made before the Bureau and alleges that WLOV-TV, West Point, MS; WTVC-TV, the Bureau erred in concluding that the program qualified as a bona-fide news interview.5 Fulani also argues that the Chattanooga, TN; WBBJ-TV, Jackson, TN; Bureau©s ruling, ineffect, exempts time blocks, not pro WKPT-TV, Kingsport, TN; WATE-TV, grams, and. therefore, ignores the requirements of Section Knoxville, TN: WHBQ-TV, Memphis, TN; 315(a). WKRN-TV, Nashville, TN; KTVX-TV, 5. In addition, Fulani presents the following new ar Salt Lake City, UT; VWNY-TV, Burlington, guments not presented to the Bureau. First. Fulani disputes VT; KOMO-TV, Seattle, WA; KXLY-TV. the relevancy of the list of programs ABC supplied to establish that the "town meeting" or "forum" format was Spokane, WA. regularly incorporated into the "Nightline" series. While she does not dispute that the format had been employed by ABC prior to the Perot program. Fulani asserts that eight MEMORANDUM OPINION AND ORDER of the thirteen prior programs included "Ted Koppel". "Nightline" or "The Koppel Report" in the title, and that Adopted: April 19, 1994; Released: May 16, 1994 the remainder began with the identifier "ABC News." Be cause "Who is Ross Perot?" did not contain any of these By the Commission: titles, Fulani argues that the program was not a regularly scheduled edition of "Nightline." Fulani further asserts that 1. The Commission has before it an Application for even if such an identifier had been used, the program Review of the Mass Media Bureau©s October 21, 1992, would not be automatically exempt because none of the ruling1 on a complaint filed by Lenora B. Fulani and previous programs featured an appearance by a candidate. Lenora B. Fulani for President (hereinafter "Fulani") 6. Next. Fulani argues that ABC misled viewers as to the against American Broadcasting Companies. Inc. extent of journalistic control it asserted over the program, (hereinafter "ABC").2 and that the Commission should judge ABC©s exercise of 2. On June 29, 1992. H. Ross Perot appeared on an ABC control over the program based on what was represented to network program entitled "Who is Ross Perot?," for one the viewing audience, rather than the actual control ex hour and forty minutes, beginning at 11:30 pm. 3 This ercised by ABC." Fulani further argues that ABC "perpe program followed an earlier, different program of the same trated a fraud" upon the viewing public and, consequently, name which aired from 10:00 to 11:00 pm.4 its actions with regard to the program cannot be considered a good-faith exercise of its news judgment.

1 7 FCC Red 6882 (1992). use, was a critique of Perot©s past activities and character. 2 The complaint was also filed against the above-captioned 5 Fulani did not file a response to ABC©s opposition to the ABC affiliates which aired the Perot program in states in which original complaint. both Perot and Fulani were allegedly legally qualified candidates h Fulani asserts that ABC deliberately misled viewers because for public office. Jennings told the audience that the program was produced in 3 As in her original complaint, Fulani refers to the title of this part to respond to Perot©s criticisms of the mediating role program as "National Town Meeting with Ross Perot," although played by professional journalists, and to allow spontaneous the ABC transcript submitted as part of the original complaint interaction between ordinary citizens and Perot. In addition, she states the title as "Who is Ross Perot?" claims that Jennings opened the questioning period by declaring 4 The earlier program, which Fulani does not contend was a that he did not know what questions were going to be asked.

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7. With respect to the Bureau©s finding that ABC ex the interest of completeness, however, the Commission will ercised the requisite control over the program. Fulani now address Fulani©s newly raised arguments. Regarding those contends that Jennings exercised less control over the pro arguments previously raised before the Bureau, Fulani has gram than a talk show host because here the producer, submitted no information or made any arguments which rather than the host, decided which questions would be would indicate that the Bureau erred in its findings. asked and in what order they would appear. As a final 13. With respect to those arguments raised now for the matter, Fulani asks for a hearing on the facts as asserted by first time, we find that Fulani presents no basis upon ABC in its response to the original complaint.7 which to reverse the Bureau©s determination. 10 We cannot 8. In response to Fulani©s new arguments, ABC first conclude that ABC was unreasonable in the exercise of its argues that, despite variations in program title, length and news judgment in airing the program. First, we cannot host, all programs in the "Nightline" series employ a news conclude that because the words "Nightline", "Ted interview format. ABC states that the "Town Meeting" or Koppel", or the "Koppel Report" were not used in the "National Town Meeting" title has been employed by ABC title, the Perot program was not a regularly scheduled with and without a reference to ABC or to Mr. Koppel, edition of "Nightline." We find persuasive the fact that and with and without his presence as a host. ABC has employed the "town meeting" format, in which 9. ABC further contends that the charge that viewers questions are posed from the audience and cleared by ABC were misled is specious in view of the fact that Jennings personnel," on a number of occasions over a period of stated at the beginning of the program that the audience years. While the titles of these programs have sometimes "which joins us live at our invitation" has come "with changed, their format has remained constant. Accordingly, questions which they have told our producers they want to we conclude that ABC has regularly incorporated the ask." 8 ABC argues that the viewers were, therefore, plainly "town meeting" format into its "Nightline" series. Further, informed that ABC had selected a pool of questioners and after a careful review of the information before the Com that ABC producers had been told of the questions in mission, it appears that "Who is Ross Perot?" conforms to advance. Consequently, ABC states, Fulani©s claim that previous programs aired on the "Nightline" series, and that ABC misled viewers as to the nature of the program, the program qualifies as an exempt news interview pursu thereby impugning the good faith exercise of its news ant to Section 315(a)(2). 12 Since there is ample evidence judgment, is without factual foundation. that this same format has regularly been used for other 10. With respect to the amount of control exercised by programs in the "Nightline" series, we reject Fulani©s asser Jennings, ABC states that it is indisputable "that Jennings tion that exemption of the program creates an exemption was indeed active, intervening to prevent speeches by for "blocks of time," rather than programs. questioners, to clarify a question or to bring a questioner 14. Next, there is nothing before us to indicate that the back to point."9 viewers of "Who is Ross Perot?" were misled as to the 11. ABC also contends that Fulani cites no authority for nature of the program. The viewers were informed that her claim of entitlement to a hearing, and that there is ABC had selected a pool of questioners and that ABC©s nothing in the Communications Act or the Commission©s producers had been told of the questions in advance. Jen rules that supports such a claim. ABC argues that even if nings statement that he personally did not know what the statute did provide for a hearing, there are no material questions would be asked cannot reasonably be construed issues of fact in dispute. as a representation that ABC would permit any and all questions to be aired, despite their insignificance or offen sive nature." Further, having determined that ABC made DISCUSSION no misrepresentation to its viewers concerning the pro gram, there is no basis for Fulani©s argument that the good 12. The Application for Review reveals that Fulani has faith exercise of ABC©s news judgment has come into ques reasserted questions of law and fact raised before the Bu tion. reau and has raised new arguments over which the Bureau has not had an opportunity to pass. Section 1.115(c) of the 15. Moreover, it does not follow that because Jennings, Commission©s rules (47 C.F.R. Section 1.115(c)) provides himself, was unaware of the questions which would be that an application for review will not be granted if it relies asked, he was not in control of the program. As ABC on questions of fact or law upon which the designated authority has not been afforded an opportunity to pass. In

© ABC responded to Fulani©s Application for Review on De " The Commission has previously determined that such for cember 14, 1902, and Fulani replied on January 11, 1993. In mats fall under the news interview exception. See Multimedia addition, oppositions were filed by most of the ABC affiliates. Entertainment. Inc.. 56 RR 2d 143 (1984). 8 Opposition at 9. 12 Having found that the program is exempt, it is irrelevant 9 Opposition at 7. that other programs under the "town meeting" format have not 10 When Congress enacted the Section 315(a) exemptions to included candidates. candidate uses, there was no indication that it intended the © © ABC argues that the issue of whether the viewers were Commission to take an unduly restrictive approach which misled is irrelevant to the Commission©s consideration of would discourage news coverage of political activities or can whether the program is exempt. Because we find that Fulani didates. Rather, Congress intended that the Commission would has made no showing that the viewers were misled by ABC, we determine whether the broadcaster had. in such cases, made do not find ourselves presented with this issue. Accordingly, we reasonable news judgments of certain events and of individual make no determination on the question of whether control of a candidacies. In so doing, the Commission would further innova program for purposes of Section 315(a) exemptions should be tive programming with respect to coverage of political cam judged by the amount of control revealed to the public or that paigns. See Aspen Institute, 55 FCC 2d 719 (1975), aff©d sub nom. actually exercised. Chislom v. FCC, 538 F.2d 349 (1976).

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points out, a review of the transcript indicates that Jen- nings. and not Perot, was in control throughout the pro gram. 14 16. Last, we see no basis for Fulani©s request for an evidentiary hearing. In Lowest Unit Charge Requirements of Section 315(b), 1 FCC Red 4123, 4127 (1992), we stated:

Section 315(b) does not require lowest unit charge disputes to be determined "on the record after op portunity for an agency hearing." . . . The Commis sion has broad authority to establish individually tailored procedures to carry out its responsibilities under the [Communications] Act, including the en forcement of Section 315. [emphasis added].

Section 315(a) also does not require resolutions of com plaints by an agency hearing, and we decline to impose such a requirement in this case. Moreover, for the reasons stated above, we do not find that Fulani has established that a substantial and material question of fact is in dis pute. 17. In view of the above, Fulani©s Application for Review IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

Opposition at 7.

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