1 Before the FEDERAL COMMUNICATIONS COMMISSION

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554

In the Matter of ) ) Fox Corp. Request for Permanent Waiver of ) MB Docket No. 20-378 Newspaper-Broadcast Cross-Ownership Rule )

REPLY COMMENTS OF FOX CORPORATION

Fox Corporation, on behalf of its wholly owned subsidiary, Fox Television Stations,

LLC, (collectively, “Fox”) submits these reply comments in support of its request for a

permanent waiver of the Newspaper/Broadcast Cross-Ownership rule, 47 C.F.R. § 73.3555(d),

(the “NBCO Rule”) for the continued common ownership of WWOR-TV, Secaucus, New

Jersey, (“WWOR”) and the New York Post (the “Post”).1

I. INTRODUCTION

Fox’s waiver request seeks to preserve the status quo that has served the New York

market well for nearly two decades. During the period that WWOR has been deemed commonly

owned with the Post, the Commission repeatedly has found that their common ownership has benefited the New York media market. Despite these consistent findings, Fox has had to repeatedly request temporary waivers of the NBCO Rule because the Commission’s efforts to eliminate the Rule—which the Commission has found is no longer in the public interest—have been embroiled in endless litigation unrelated to the merits of the Rule. The Commission should

1 See Media Bureau Seeks Comment on Request for Permanent Waiver of Newspaper-Broadcast Cross-Ownership Rule Filed by Fox Corp., Public Notice, MB Docket No. 20-378, DA 20-1350 (Nov. 13, 2020) (“Media Bureau Public Notice”); Request of Fox Corp. for Permanent Waiver of Newspaper-Broadcast Cross-Ownership Rule, 47 C.F.R. § 73.3555(d), MB Docket No. 20-378 (filed Oct. 5, 2020) (“Fox Request”). Since 1993, Fox has held a permanent waiver of the NBCO Rule permitting common ownership of WNYW(TV), New York, New York, and the Post. See Media Bureau Public Notice at 1 & n.2 (citing Fox Television Stations Inc., 8 FCC Rcd 5341 (1993)).

grant a permanent waiver of the NBCO Rule to once and for all put to rest any uncertainty

regarding WWOR’s ownership.

None of the reasons proffered by Free Press, United Church of Christ, OC Inc., and

Common Cause (collectively, “Free Press”)2 provides a basis for denying the waiver. Fox has met the legal standard for waiver of the NBCO Rule. Grant of the waiver would not harm viewpoint diversity in the New York media market—perhaps the most diverse market in the country. Moreover, the Commission previously has affirmatively determined that waiver of the

NBCO Rule to allow common ownership of WWOR and the Post is in the public interest. There is no evidence that that conclusion is any less true today, and Free Press provides none. Finally,

Free Press’s attempt to delay consideration of Fox’s waiver request should be rejected. The request is neither partisan nor controversial; it can be easily resolved on the basis of the

Commission’s existing precedent. Nor does the request depend on the outcome of the

Quadrennial Review appeal pending before the Supreme Court. At bottom, Free Press raises no

new argument about the merits of Fox’s request, instead relying on its long-standing opposition

to common ownership of WWOR and the Post. The Commission has rejected those arguments

for 20 years, and it should do so again now.

II. FOX HAS MET THE LEGAL STANDARD FOR WAIVER OF THE NBCO RULE.

Free Press spills much ink on the notion that the Second Report and Order of 2016 established a special standard for assessing requests to waive the NBCO Rule.3 However, the

Commission made clear in that Order that this NBCO waiver standard requires only a “narrower

2 Opposition of Free Press, United Church Of Christ, OC Inc., and Common Cause to Fox Corp. Request for Permanent Waiver, MB Docket No. 20-378 (Dec. 1, 2020) (“Free Press Comments”). 3 Free Press Comments at 14; see also In re 2014 Quadrennial Regulatory Review, 31 FCC Rcd. 9864 (2016) (“Second Report and Order”).

showing” focused specifically on viewpoint diversity, as compared to the general waiver standard under Section 1.3.4 The Commission further provided that applicants may also seek a

waiver under Section 1.3 of the rules.5 In any event, Fox has met the standard for waiver of the

NBCO Rule under either approach.

1. Grant of the Permanent Waiver Poses No Risk to Viewpoint Diversity.

In the Second Report and Order, the Commission held “that the public interest would not

be served by restricting specific combinations that do not unduly harm viewpoint diversity.”6

The Commission therefore created a unique waiver standard for the NBCO Rule that requires

only a showing “that viewpoint diversity will not be unduly harmed as a result of the proposed

combination” based on the totality of the circumstances.7 Here, this showing requires no

guesswork or prognostication. Because grant of the permanent waiver would do no more than

maintain the status quo of the past nearly 20 years, there is a robust factual record demonstrating

that common ownership of WWOR and the Post in fact has not harmed viewpoint diversity in

the New York media market.

The Commission consistently has concluded that “‘[g]iven the wide array of voices in

New York City,” any impact on viewpoint diversity resulting from common ownership “‘would

be negligible,’ even were one to consider only full-service television stations and the four major

daily newspapers then serving the New York market.”8 Simply put, the New York media market

4 Second Report and Order, 31 FCC Rcd. at 9940 (emphasis added). 5 Id. 6 Id. 7 Id. 8 In re Fox Television Stations, Inc., 29 FCC Rcd. 9564, 9577 (2014) (quoting In re Fox Television Stations Inc. Licensee of Television Station WNYW, New York, New York, 8 FCC Rcd. 5341, 5351 (1993)).

enjoys an “extreme diversity of voices.”9 There is no evidence that common ownership of

WWOR and the Post has harmed that diversity. To the contrary, as the Commission previously

has found, enforcing the NBCO Rule in these circumstances would risk the continued viability of

the Post, “decreas[ing] the diversity of voices in the New York markets and, thereby,

disserv[ing] the purpose of the rule.”10 For this reason the Commission repeatedly has affirmed

and extended Fox’s prior waivers of the NBCO Rule: “to ensure that the very purpose of the rule

… is not disserved by a forced divestiture under these circumstances in a market more than

sufficiently competitive to withstand the harms the rule was designed to prevent.”11

The Commission’s conclusion is no less true today. WWOR and the Post command

relatively small shares of the New York media market. As Fox noted in its request, according to

Nielsen’s 2019–2020 data, WWOR falls outside of the top four ranked stations in the New York

DMA in the Adults 18–54 demographic. The Post’s daily print edition is read by 6% of the

population in the New York DMA. And it secured 21% of 2019 advertising dollars spent with

local newspapers in the New York DMA—figures that do not include The New York Times and

The Wall Street Journal due to their national reach.12 Notably, these figures also do not include

the myriad cable, online, and other non-traditional media outlets that abound in the New York

market.

Free Press does not even attempt to argue that continued common ownership of WWOR

and the Post would harm viewpoint diversity in the New York media market. Instead, it asserts

9 In re K. Rupert Murdoch & Fox Entm’t Grp., 24 FCC Rcd. 5824, 5829 (2009). 10 Id. 11 In re K. Rupert Murdoch & Fox Entm’t Grp., 21 FCC Rcd. 11499, 11502 (2006) (“The record indicates that the conditions justifying that original waiver, the financial vulnerability of The New York Post and the unique diversity of the New York market, still exist.”). 12 Fox Request at 5 n.24.

that “Commission should also request that Fox” make this showing and “not merely take the

statement at face value.”13 But Fox has made precisely such a showing. Accordingly, Fox has

met the standard for waiver of the NBCO Rule established in the Second Report and Order.

2. There is Good Cause for Granting a Permanent Waiver of the NBCO Rule.

The Commission alternatively or additionally should grant the requested permanent

waiver under Section 1.3 of its rules, which provides that the Commission may waive its rules

“for good cause shown.”14 Waiver under this general standard is appropriate where the particular

facts would make strict compliance inconsistent with the public interest and deviation from the

general rule would relieve hardship, promote equity, or produce a more effective implementation

of overall policy on an individual basis.15

As Fox explained in its waiver request, the Commission in 2018 found that common ownership of WWOR and the Post is in the public interest.16 This conclusion alone is a

sufficient basis on which to grant Fox’s waiver request since there is no evidence that the

Commission’s 2018 determination is any less true today (certainly Free Press puts forward

nothing of the kind). This conclusion finds further support in the Commission’s repeated

determination that the NBCO Rule is no longer in the public interest—a determination with

which the Third Circuit Court of Appeals has agreed even as it has disagreed with other

Commission determinations regarding its media ownership rules.17 Because the NBCO Rule

13 Free Press Comments at 17. 14 47 C.F.R. § 1.3. 15 See Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969). 16 Fox Request at 5; see also In re Fox Television Stations, 33 FCC Rcd. 7221, 7244 (2018) (“[W]e do not find that the public interest would be disserved by these commonly held properties, especially in light of our repeal of the NBCO rule.”). 17 See Prometheus Radio Project v. FCC, 824 F.3d 33, 51–52 (3d Cir. 2016). The single occasion during the past 20 5

does not advance the public interest, strict compliance with the Rule necessarily would be

inconsistent with the public interest—justifying a waiver under Section 1.3.

Free Press’s arguments that waiver of the NBCO Rule would not benefit the public

interest fall flat. Free Press appears to argue that permanent waiver is not justified because Fox

has previously received only temporary waivers. Under Free Press’s logic, once a party receives

temporary relief from a rule, it is precluded from later seeking permanent relief even where (as

here) the facts justify a permanent waiver.18 To the extent the original temporary waiver was granted to give Fox time to come into compliance with the NBCO Rule, the Commission’s subsequent determinations that extensions of the waiver were warranted in light of the unique circumstances obviated a need for divestiture. The “odd durability” of Fox’s NBCO waivers, as

Free Press puts it,19 is not so odd when the Commission’s actions are considered in context. The

Commission repeatedly has extended Fox’s temporary waivers because it repeatedly has found

that common ownership benefits the public interest.

Free Press also attempts to re-litigate its failed efforts to question WWOR’s service to the

community.20 To begin with, under Free Press’s view that Fox must meet the NBCO waiver

standard established in the Second Report and Order, localism is not the relevant

consideration—viewpoint diversity is the only relevant consideration under that standard. Even

to the extent WWOR’s localism obligations are relevant to Fox’s waiver request, they provide no

basis for rejecting the request. As the Commission found in 2018, WWOR has “met its special

years when the Commission declined to outright eliminate the NBCO Rule—the Second Report and Order—does not undermine this conclusion because, as discussed above, Fox easily meets the waiver standard established in that decision. 18 See In re Fox Television Stations, 33 FCC Rcd. at 7244. 19 Free Press Comments at 6 20 Id. at 16.

obligations to serve Northern New Jersey.”21 Moreover, Free Press has failed to demonstrate that

any causal relationship exists between waiver of the NBCO Rule and WWOR’s track record of

local service. As a result, there is no reason to deny Fox’s waiver request on this basis.

In sum, regardless of which standard applies—the Second Report and Order or Section

1.3—Fox has met the legal requirements for permanent waiver of the NBCO Rule.

III. GRANT OF A PERMANENT WAIVER WOULD BE NONCONTROVERSIAL AND SHOULD NOT BE DELAYED.

Free Press claims that the Commission should indefinitely postpone consideration of

Fox’s request as a result of the pending presidential transition and the Supreme Court’s

consideration of Prometheus IV.22 Neither the transition nor Prometheus IV provide a basis for

delaying consideration of Fox’s waiver request.

As Fox explained in its opposition to Free Press’s motion to indefinitely extend the

comment cycle in this proceeding, Fox’s waiver request is neither partisan nor controversial.23

WWOR and the Post have been commonly owned for nearly two decades, through administrations of and orderly transitions of power between both major political parties. Grant of Fox’s waiver request would merely maintain this status quo. Moreover, Free Press has raised no novel questions of fact or law. To the contrary, Free Press goes to great lengths to demonstrate its “two-decade long history of opposition” to common ownership of WWOR and the Post24—opposition that the Commission repeatedly has rejected throughout those two

decades. Relying on that existing Commission precedent, the Media Bureau can grant Fox’s

21 In re Fox Television Stations, 33 FCC Rcd. 7221, 7223 (2018). 22 Free Press Comments at 17; see also FCC v. Prometheus Radio Project, No. 19-1231 (U.S. cert. granted Oct. 2, 2020). 23 Fox Opposition to Motion for Extension of Time, MB Docket No. 20-378, at 3–4 (Nov. 23, 2020). 24 Free Press Comments at 1.

waiver request on delegated authority.25

The pending appeal before the Supreme Court similarly provides no basis for putting off action on Fox’s waiver request. To begin with, the merits of the NBCO Rule are not at issue in

the Supreme Court appeal. The question presented instead focuses on whether the Third Circuit

validly vacated the Reconsideration Order and the Commission’s other recent Quadrennial

Review orders because the Third Circuit thought the Commission failed to adequately consider

the impact the various rule changes adopted in those orders would have on female and minority

ownership.26 Thus, addressing the merits of Fox’s waiver request in no way depends on the

Court’s opinion. Indeed, even a Court decision affirming the Third Circuit would simply have

the effect of retaining the Second Report and Order’s NCBO waiver standard, which Fox has met.

Finally, Free Press’s complaint that a “compressed timeline” somehow favors Fox rings hollow. As its comments exhaustively document, Free Press has asserted the same arguments for nearly 20 years. The comments that it filed in response of Fox’s current waiver request are a rehash of the same arguments that the Commission has rejected time and again. Ultimately, there is no justification for further delaying grant of a waiver that raises no new questions of law and would instead maintain a status quo that has benefited the New York media market for almost two decades.

25 See 47 C.F.R. §§ 0.61(h) and 0.283(c) (Media Bureau has authority to decide upon waiver requests concerning rules under its jurisdiction, so long as the waiver request does not present “novel questions of law, fact or policy that cannot be resolved under existing precedents and guidelines”). 26 See Petition for a Writ of Certiorari at 14, FCC v. Prometheus Radio Project, No. 19-1231 (filed Apr. 17, 2020).

CONCLUSION

For the foregoing reasons, Fox respectfully requests that the Commission grant Fox’s request for a permanent waiver of the NBCO Rule to permit the continued common ownership of

WWOR and the Post in the New York market.

Respectfully submitted,

By: /s/ Matthew S. DelNero

Joseph M. Di Scipio Matthew S. DelNero Ann West Bobeck Rafael Reyneri FOX CORPORATION COVINGTON & BURLING LLP 101 Constitution Ave, NW One CityCenter Suite 200 West 850 Tenth Street, NW Washington, DC 20001 Washington, DC 20001 (202) 824-6522 (202) 662-6000

Counsel for Fox Corporation

December 8, 2020