# Before the

# Federal Communications Commission

# Washington, D.C. 20554

In re Request of

A&E Television Networks

For Declaratory Ruling

# STAFF RULING

**Adopted: June 20, 2000 Released: June 20, 2000**

By the Chief, Mass Media Bureau:

1.  The Commission has before it a request for declaratory ruling filed
    by A&E Television Networks ("AETN")[^1] asking that the Commission
    declare a series of presidential candidate profiles either that have
    aired or will be airing on the program "Biography" exempt from the
    equal opportunities requirements of Section 315 of the
    Communications Act of 1934, as amended (the "Act"). 47 U.S.C. § 315.
    Based on the representations of AETN discussed below, we believe the
    subject episodes of "Biography" are *bona fide* news interview
    programs and, as such, are exempt from the equal opportunities
    requirements under Section 315 of the Act.[^2]

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I.  BACKGROUND

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2.  AETN describes "Biography" as television's longest-running,
    single-topic documentary series, whose typical "episode presents a
    one-hour profile of a famous individual who has accomplished some
    major achievement, drawing its subjects from a broad range of human
    endeavor." The series began in 1987 and, since 1994, is broadcast
    five nights a week. The series "combines narration with period
    footage, archival tapes, film clips, interviews with the person's
    friends, family members and colleagues, and, occasionally, with the
    subject of the profile." In a letter filed to supplement its
    request, AETN states that all of the episodes that are the subject
    of this request, however, namely a series of profiles of
    presidential candidates broadcast during the 2000 presidential
    campaign, have included or will include current interviews with the
    candidates as an integral part of the program. AETN lists five such
    programs that it either aired or plans to air during the year 2000
    presidential race. In an oral statement to Mass Media Bureau staff,
    AETN has indicated that it intends to air similar profiles during
    future presidential campaigns.

3.  AETN argues that the subject "Biography" profiles qualify for a bona
    fide news interview exemption under Section 315(a)(2) of the Act
    because (1) "Biography" is regularly scheduled; (2) "Biography"
    originates with, and is under the control of, AETN; and (3)
    decisions concerning the format, content, scheduling and production
    of the series are made by AETN based on bona fide news judgment and
    not for the political advantage of any candidate. AETN contends that
    the fact that "Biography" is historically a documentary series does
    not preclude the Commission from finding that the subject series of
    profiles may also qualify as news interview programs when its
    producer has made a commitment that the subject episodes will
    include current interviews with the candidates as an integral part
    of the episodes. In support of its argument, AETN cites *King
    Broadcasting Co. v. FCC* (*King*),[^3] a case in which the U.S.
    Court of Appeals for the D.C. Circuit found that a program may be a
    "hybrid format" involving programming which, while it may not
    satisfy the requirements for one news exemption, may satisfy the
    requirements for an alternative news exemption under Section 315. It
    additionally maintains that its exemption request is supported by
    previous Commission decisions granting a news interview exemption to
    the following programs: a special edition of "Nightline" entitled
    *Who is Ross Perot?*, which started with a one-hour documentary
    profile of Perot,[^4] followed by an interview of Perot, and
    episodes in *The Next President* series concerning profiles of
    presidential contenders.[^5] The latter used filmed profiles of
    newsworthy presidential candidates accompanied by interviews, to
    explore the "character, personal qualities and general philosophy of
    each candidate."[^6]

4.  Alternatively, AETN contends that the subject "Biography" programs
    would qualify for a bona fide news documentary exemption under
    Section 315(a)(3). It acknowledges that the requirement for this
    exemption, that the appearance of the candidate be "incidental" to
    the presentation of the subject(s) covered by the news documentary,
    would appear to disqualify these programs from this exemption.
    However, it requests that the Commission reinterpret Section
    315(a)(3) to allow these programs to qualify for the exemption by,
    for example, interpreting this part of the exemption as requiring
    only that the discussion of a person's candidacy be incidental to
    the documentary where, as here, the profile generally focuses on the
    subject's life and other accomplishments.

II\. DISCUSSION

5.  Section 315(a) of the Act provides that, if a licensee allows a
    legally qualified candidate for public office to use a broadcast
    station, it must afford equal opportunities to other such candidates
    for that office. Section 315 states that appearances by legally
    qualified candidates on the following news programs are exempt from
    equal opportunities

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(1) bona fide newscast

(2) bona fide news interview

(3) bona fide news documentary (if the appearance of the candidate is
    incidental to the presentation of the subject or subjects covered by
    the news documentary), or

(4) on-the-spot coverage of bona fide news events (including but not
    limited to political conventions and activities incidental thereto.)

47 U.S.C. § 315(a)(1-4). The Commission has demonstrated a willingness
to be flexible in interpreting these exemptions in order to further
Congress' primary purpose in enacting the news exemptions, "\[t\]o
enable what probably has become the most important medium of political
information to give the news concerning political races to the greatest
number of citizens, and to make it possible to cover the political news
to the fullest degree."[^7] In 1984, for example, the Commission began a
significant expansion of the news interview exemption when it declared
certain segments of the *Donahue* program could be treated as exempt
news interviews despite the producer's acknowledgement that many other
Donahue segments were not news interviews. [^8] The Commission explained
that it relied on the *Donahue* producers statement that it would
present *bona fide* news interviews on a regular basis and could not
justify denying the request because many Donahue segments would not
include *bona fide* news interviews. The Commission's *Donahue* decision
also signaled our willingness to grant exempt status to news interviews
which did not follow a more traditional question and answer format
indicative of programs such as *Meet the Press* and *Face the Nation*,
which were mentioned in the 1959 legislative history of the news
exemption amendment to Section 315 as the kind of interview programs it
envisioned. The Commission said that continued limitation to only such
programming as was in existence in 1959 would discourage innovation and
thwart the underlying purpose of the exemptions to increase news
coverage of the political process. Thus, although a significant number
of *Biography* episodes must be treated as documentaries, which could be
exempt only if the candidate's appearance was incidental to the episode,
AETN's assurance that the subject series of presidential candidate
profiles will include news interviews allows the Commission the same
flexibilty it demonstrated in *Donahue* to declare those episodes
exempt.

6.  This determination also adheres to the U.S. Court of Appeals
    reasoning in *King*, in which the court indicated that the
    Commission must avoid a mechanistic approach to the exemptions by
    failing to consider whether a particular programming format could
    fit an alternative exemption category when it did not meet the
    requirements for another category. In *King*, the Commission refused
    to grant a news interview exemption to an interview portion of a
    proposed format for the presentation of presidential candidates
    during the 1992 campaign because the interviews were not part of a
    regularly scheduled program. The court said that the Commission
    should have considered whether the interviews, as part of the
    overall programming proposal, might be deemed to be exempt under the
    "on-the-spot coverage of a *bona fide* news event" exemption. On
    remand, the Commission reconsidered its analysis and granted an
    exemption to the programming under the "on-the-spot" exemption.[^9]
    Similarly, although we find that the subject "Biography" episodes do
    not qualify for one of the Section 315 exemptions\--the documentary
    exemption, because the candidate appearances are not incidental to
    the program, we do find that these episodes qualify for another
    Section 315 exemption\--the news interview exemption\--because they
    include contemporaneous interviews of the candidates and, as
    explained below, the requisites for the interview exemption are
    otherwise met.

7.  In addition, we find the characteristics of the subject programs to
    be very similar to those in *U.S. News and World Report*,
    programming we concluded qualified as exempt bona fide news
    interviews. In that case, as here, the format of the programs
    included, among other things, one-on-one interviews with
    presidential candidates, background information, and relevant
    footage; the programs were regularly scheduled; and the programs
    were under the complete editorial control of producers whose
    decisions concerning the programs were "based solely on objective,
    reasonable, good faith journalistic judgment and not an intention to
    advance the candidacy of a particular person."[^10]

8.  After concluding that the format of AETN's proposed series can be
    considered under the news interview exemption category, we also
    conclude that the subject segments of *Biography* satisfy the
    longstanding requirements for exempt *bona fide* news
    interviews: (1) whether it is regularly scheduled; (2) whether a
    broadcaster or an independent producer controls the program; and (3)
    whether the broadcaster's or independent producer's decisions on
    format, content, and participants are based on newsworthiness rather
    than on an intention to advance an individual's candidacy. [^11]
    Based on the record, the subject episodes of "Biography" appear to
    satisfy each of these factors. Regarding the first factor, in an
    earlier case, we found that a series containing only five episodes
    could be considered regularly scheduled particularly where, as here,
    essentially the same series is intended for broadcast on a recurrent
    basis preceding future elections.[^12] Concerning the second factor,
    AETN appears to exercise complete control over the subject series of
    presidential profiles. With respect to the third factor, good faith
    news judgment, there is nothing in the record to suggest that AETN's
    proposed presidential profiles are intended to advance or harm any
    particular candidate. Based on the foregoing, we believe that the
    subject "Biography" programs are exempt from the equal opportunities
    requirements pursuant to Section 315(a)(2).

9.  Finally, we do not find AETN's argument that the programs in
    question would qualify for a bona fide news documentary exemption to
    be persuasive. As stated in the language of the bona fide news
    documentary exemption itself, that exemption explicitly applies only
    if the appearance of the candidate is "incidental to the
    presentation of the subject or subjects covered by the news
    documentary." In this case, the candidates' appearances are not
    incidental as the candidates themselves are the subjects of the
    documentaries in question. Neither the explicit terms of the
    statutory language nor the legislative history of the bona fide news
    documentary exemption reflect any intention to interpret the
    "incidental" requirement as being related to whether the appearance
    concerns the candidate's bid for elective office or any other
    particular aspect of the candidate's life. Thus, we are unprepared
    to grant AETN's request to reinterpret the exemption Section
    315(a)(3) to include news documentaries, which focus on the life of
    a candidate but only incidentally discuss the person's candidacy.

10. ACCORDINGLY, for all of the above-stated reasons, AETN's request for
    a declaratory ruling that profiles of presidential candidates on
    "Biography," as described in the record, broadcast during the year
    2000 presidential campaign are exempt from Section 315(a) of the Act
    as bona fide news interviews IS GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Roy J. Stewart

Chief, Mass Media Bureau

[^1]: ^?^ AETN is a cable programmer offering several channels of cable
    programming throughout the United States via cable and other media
    outlets.

[^2]: ^?^ In light of our ruling herein that the format of the proposed
    series of presidential candidate profiles appears to satisfy the
    requisites for bona fide news interview programming, we need not
    consider a collateral issue, raised by AETN, of whether Section 315
    is even applicable to cable programming not under the editorial
    control of the cable system operator. Unlike broadcast stations,
    which are potentially subject to Section 315 requirements with
    respect to all programming broadcast by a station, cable systems are
    subject to Section 315 only to the extent they "originate"
    programming. Origination programming is defined in Section 76.5(p)
    of the Commission's Rules as cablecast material under the "exclusive
    editorial control of the cable operator." 47 C.F.R. § 76.5(p). The
    Commission has not considered whether cable network programming such
    as the programming produced by AETN could, under any circumstances,
    be deemed cablecast origination material and will not address this
    issue here.

[^3]: ^?^ 860 F.2d 465, 470 (D.C. Cir. 1988).

[^4]: ^?^ *Fulani v. FCC*, 49 F.3d 904 (2d Cir. 1995).

[^5]: ^?^ *U.S. News and World Report*, 2 FCC Rcd 7101 (1987).

[^6]: ^?^ *Id.* at 7101.

[^7]: ^?^ 105 Cong. Rec. 14451 (1959) (remarks of Sen. Holland).

[^8]: ^?^ *Request by Mulimedia Entertainment, Inc. for Declaratory
    Ruling*, 56 RR 2d 143, 148 (1984). *See Request by CBS, Inc., New
    York, New York*, 58 FCC 2d 601 (1976); *Complaint of Socialist
    Workers 1968 National Campaign Committee*, 14 FCC 2d 858 (1968).

[^9]: ^?^ 6 FCC Rcd 4998 (1991). The Commission noted that it had
    indicated in earlier cases "that there are some program formats
    which could conceivably qualify for an exemption under either the
    Section 315(a)(2) exemption for bona fide news interviews or the
    exemption under Section 315(a)(4) for bona fide news events." *Id.*
    at 5000, citing *Henry Geller*, 95 FCC 2d 1236, 1244 (1983) and
    *Aspen Institute*, 55 FCC 2d 697, 708-12 (1975) \[candidate news
    conferences qualify for exemption under Section 315(a)(4) but not
    for exemption under Section 315(a)(2)\]. Programs with hybrid
    formats have been granted exemptions in a number of other cases. For
    example, in granting a request that the Commission declare that
    *Hard Copy* qualified for the *bona fide* newscast exemption, the
    Commission stated that the use of interviews, on-the-spot coverage,
    and documentary footage in the context of some stories presented in
    the program was not a basis for denying a newscast exemption because
    these various approaches to news reporting are typical of the more
    traditional newscast formats. *Request for Declaratory Ruling By
    Paramount Communications, Inc.*, 5 FCC Rcd 4627 (1990).

[^10]: ^?^ *U.S. News and World Report*, 2 FCC Rcd at 7101.

[^11]: ^?^ *See Request for Declaratory Ruling on Independently Produced
    News Interviews*, 7 FCC Rcd 4681 (1992).

[^12]: ^?^ *Request of the Pacifica Foundation*, 9 FCC Rcd 2817 (1994).