A Fox TV broadcast station license renewal is facing an uncommon level of scrutiny at the Federal Communications Commission, with the FCC taking the rare step of allowing broader public input on a petition to deny the station's renewal application.
The proceeding concerns WTXF-TV in Philadelphia, the only Fox-owned TV station that's currently up for renewal. An advocacy group called the Media and Democracy Project (MAD) petitioned the FCC to deny the renewal on July 3, arguing that Fox "has repeatedly aired false information about election fraud, sowing discord in the country and contributing to harmful and dangerous acts on January 6, 2021."
MAD says that Fox lacks the character required to maintain a license and hopes other Fox stations will lose their licenses, too. No other Fox stations are up for license renewal until 2028, according to a Bloomberg article.
"Fox's intentional news distortion, sanctioned at the highest levels of its corporate structure and fabricated by management and news hosts, 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," the petition said, asking for "an evidentiary hearing into FOX's misdeeds."
It would be unusual for the FCC to deny a license renewal based on a television station's content. License revocations occur more commonly when a station owner is convicted of a crime or when station owners fail to file their renewal applications until after the license has expired.
Fox fought request for broader public debate
On July 18, MAD urged the FCC to change the status of the license renewal proceeding to allow more public participation because the issues raised in the petition "go beyond Fox's day-to-day operation of WTXF-TV" and "address the broader question of whether Fox retains the basic qualifications to remain an FCC licensee." Other public interest groups want to participate in the proceeding, MAD said.
Fox opposed that request, but the FCC announced that it will make the change in a notice issued yesterday. License renewals are generally classified as restricted proceedings for purposes of ex parte filings, but the FCC noted that it can "adopt modified ex parte procedures in particular proceedings if the public interest so requires. We have concluded that classifying this proceeding as permit-but-disclose would, in this case, permit broader public participation and thereby serve the public interest."
The permit-but-disclose procedures that now apply to WTXF's license renewal "permit parties to make ex parte presentations to the Commissioners and Commission staff and require that these presentations be disclosed in the record of the relevant proceeding," the FCC said.
Fox urged the FCC to deny the request for permit-but-disclose treatment on July 19, arguing that license renewals "are not vehicles for debating broader policy questions."
"Given the uniquely party-specific nature of a broadcast license renewal proceeding, it is exceedingly rare for the Commission to place a license renewal proceeding under the more permissive procedures for permit-but-disclose proceedings," Fox said.
Fox said it is aware of only one previous example of a license renewal being given permit-but-disclose treatment. That was in June 2007, when the FCC used permit-but-disclose procedures for the license renewals of Fox stations in New Jersey and New York, WWOR and WNYW. The FCC eventually closed the matter after over a decade of filings, allowing the stations to keep their licenses in 2018.
Dominion defamation suit cited by Fox opponents
MAD's petition to deny the license renewal pointed to the defamation lawsuit filed by Dominion Voting Systems against Fox News Network. Fox agreed to a $787.5 million settlement just before a trial was set to begin in April. Before the settlement, a federal judge in the case found that Fox News aired false statements about Dominion related to the 2020 presidential election.
Fox Television Stations provided a statement when contacted by Ars today. "The Media and Democracy Project petition to deny the license renewal of WTXF-TV is frivolous, completely without merit, and asks the FCC to upend the First Amendment and long-standing FCC precedent," Fox said. "WTXF-TV/FOX 29 News Philadelphia is one of the finest local news stations in the country, broadcasting over 60 hours of local news and locally produced programming every week."
Fox also submitted opposition to MAD's petition on August 2, telling the FCC that "MAD's attempt to transform a civil defamation case into a license revocation action likewise would put the Commission on a collision course with the First Amendment."
"By dismissing MAD's petition promptly, the Commission would reaffirm its longstanding position and send an important signal: discouraging future attempts—whether from the political right, left, or anywhere in between—to have it use its authority over the broadcast airwaves in a manner contrary to the First Amendment," Fox wrote.
Preston Padden, a former Fox executive, joined MAD's call to deny the license renewal. "Fox has undermined our democracy and has radicalized a segment of our population by presenting knowingly false narratives about the legitimacy of the 2020 election," Padden wrote in a declaration included with the petition.
Former FCC members call for Fox hearing
MAD's call for an evidentiary hearing on the Fox renewal received additional support in a filing by conservative writer William Kristol, a former Fox News contributor; and Ervin Duggan, a Democrat who was an FCC commissioner in the early 1990s and later became president of PBS. The call for a hearing was also backed by Alfred Sikes, a Republican who was FCC Chairman from August 1989 to January 1993.
"The FCC has allowed the pledge to operate in the public interest to become perfunctory at best," Sikes wrote. "If the public interest means anything, the FCC must designate for a hearing the application of the Murdoch's and Fox for renewal of their license to operate Station WTXF, Philadelphia. That application should be closely scrutinized in public hearings and court rooms."
MAD welcomed the permit-but-disclose decision and again urged the FCC to open an evidentiary hearing.
"We applaud the decision by the FCC to allow meaningful conversations and greater public participation in this proceeding by granting our request," MAD said in a statement provided to Ars today. "This move demonstrates that the Commission is taking seriously the growing bipartisan concerns about Rupert and Lachlan Murdoch's and Fox Corporation's character and fitness to remain public interest broadcast licensees."
A statement from Padden said the FCC's "wonderful decision will enable the broad bipartisan group of petitioners to meet with FCC commissioners and staff and explain their heartfelt hope for an FCC hearing."
The FCC still has a partisan deadlock with two Democrats and two Republicans. However, the Senate could vote to confirm Democrat Anna Gomez to the empty seat next month.
