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)). 1 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”). 2 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)). 3 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. 4 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.