**DA 07-2530**

**Released: June 13, 2007**

Chicago Media Action and Milwaukee Public Interest Media

Coalition

c/o Andrew Jay Schwartzman, Esq.

Media Access Project

Suite 1000

1625 K Street, NW

Washington, D.C. 20006

> Re: Petitions to Deny filed by Chicago Media Action and Milwaukee
> Public Interest Media Coalition

Gentlemen:

On November 1, 2005, Chicago Media Action ("CMA") and the Milwaukee
Public Interest Media Coalition ("MPIMC") filed petitions opposing the
license renewal applications of 8 broadcast television stations in the
Chicago area and 11 broadcast television stations in the Milwaukee
metropolitan area.[^1] The licensees of various stations named in the
petitions, and the Illinois Broadcasters Association, filed oppositions
on or about December 15, 2005. CMA filed a reply to the relevant
oppositions on January 18, 2006. For the reasons set forth below, we
deny the petitions.[^2]

*Background*. The petitions contend that Chicago and Milwaukee broadcast
stations have failed to present adequate programming relating to state
and local elections during the 2004 election campaign. They attach to
their petitions a study by the Center for Media and Public Affairs,
entitled "2004 Campaign News Study in Chicago, Milwaukee and Portland
Markets," which purports to analyze all regularly scheduled news and
public affairs programming on the five highest-rated commercial stations
in Chicago and Milwaukee, respectively. According to the study, less
than 1% of newscasts in the Chicago and Milwaukee markets were devoted
to non-federal elections during the four weeks prior to the 2004
election. In addition to assessing the quantity of newscast time devoted
to non-federal elections, CMA and MPIMC also state that the study
indicates that fully half of this news coverage did not inform voters
about issues or other facts which would actually assist in voting. Both
CMA and MPIMC acknowledge that broadcasters have wide discretion in
selecting news programming, but contend that the paucity of coverage of
local elections here is inconsistent the principle of localism that the
Communications Act demands.

The oppositions argue that the attached study is flawed as a means of
determining whether Chicago and Milwaukee stations have served the
public interest during the license term since it covers only a limited
period of time and only concerns one type of programming. According to
the oppositions, the type of election coverage provided lies within a
licensee's editorial discretion, which they have not exercised in bad
faith. According to the licensees, it is overall "responsiveness" to
local issues, rather than the narrow subset of local election coverage,
that is most relevant in determining whether a station's programming has
served the public interest. Some Chicago licensees also argue that there
were no Illinois state-wide elections, no Chicago mayoral election, and
no other state or local elections of similar importance to a wide sector
of the station's audience during the one-month period covered by the
study, and, thus, it was not unusual that there would be relatively few
stories covering local non-federal elections.

*Discussion*. The Commission applies a two-step analysis of a petition
to deny under the public interest standard. The petition must first
contain specific allegations of fact sufficient to show that granting
the application would be *prima facie* inconsistent with the public
interest.[^3] This first step of the public interest analysis "is much
like that performed by a trial judge considering a motion for directed
verdict: if all the supporting facts alleged in the \[petition\] were
true, could a reasonable factfinder conclude that the ultimate fact in
dispute had been established."[^4] \"Allegations within these documents
that consist of ultimate, conclusionary facts or more general
allegations on information and belief, supported by general affidavits,
are not sufficient.\"[^5] If the allegations meet this first step, then
the Commission will designate the application for hearing when the
allegations, together with any opposing evidence before the Commission,
raise a substantial and material question of fact as to whether granting
the application would serve the public interest, or if the Commission is
otherwise unable to conclude that granting the application would serve
the public interest.[^6]

Section 326 of the Act and the First Amendment to the Constitution
prohibit any Commission actions that would improperly interfere with the
programming decisions of licensees.[^7] Because of this statutory
prohibition, and because journalistic or editorial discretion in the
presentation of news and public information is the core concept of the
First Amendment's Free Press guarantee, the Commission has very little
authority to interfere with a licensee's selection and presentation of
news and editorial programming.[^8] The Commission has long held that
"\[t\]he choice of what is or is not to be covered in the presentation
of broadcast news is a matter to the licensee's good faith discretion,"
and that "the Commission will not review the licensee's news
judgments."[^9]

The petitions have not provided evidence that the named licensees
exercised their editorial discretion in bad faith. Quantity is not
necessarily an accurate measure of the overall responsiveness of a
licensee's programming.[^10] The study provided only concerns one type
of programming, local election coverage just prior to the 2004 election.
It does not demonstrate that television programming in Chicago or
Milwaukee has generally been unresponsive. The Commission, however,
currently has pending a rulemaking seeking to standardize and enhance
television broadcasters' public interest disclosure requirements.[^11]
In initiating this rulemaking, the Commission has sought, in part, to
promote discussions between the licensee and its community about how
best to meet the local public interest obligations of the community a
broadcaster serves. In the meantime, we urge all viewers and listeners,
including such organizations as CMA and MPIMC, to raise their
programming concerns directly with their local broadcasters.

Accordingly, the Petitions to Deny filed by Chicago Media Action and the
Milwaukee Public Interest Media Coalition **ARE DENIED**.

Sincerely,

Barbara A. Kreisman

> Chief, Video Division

Media Bureau

cc: Howard F. Jaeckel, Esq.

CBS Broadcasting, Inc.

1515 Broadway

New York, New York 10036

F. William LeBeau, Esq.

Senior Counsel

NBC Telemundo License Co.

1299 Pennsylvania Avenue, NW

11^th^ Floor

Washington, D.C. 20004

Divora Wolff Rabino, Esq.

Vice President, Law & Regulation

ABC, Inc.

77 West 66 Street, 16^th^ Floor

New York, New York 10023

WGN Continental Broadcasting Company

c/o R. Clark Wadlow, Esq.

Sidley Austin Brown & Wood LLP

1501 K Street NW

Washington, D.C. 20005

WCIU-TV Limited Partnership

c/o J. Brian DeBoice, Esq.

Cohn and Marks, LLC

1920 N Street, NW

Suite 300

Washington, DC 20036

Molly Pauker, Esq.

Vice-President

Fox Television Holdings, Inc.

5151 Wisconsin Avenue, NW

Washington, D.C. 20016

Paxson Chicago License, Inc., and Paxson Milwaukee License, Inc.

c/o John R. Feore, Jr.

Dow, Lohnes & Albertson, PLLC

1200 New Hampshire Avenue, NW

Suite 800

Washington, D.C. 20036

Journal Broadcast Corporation

Mace J. Rosenstein, Esq.

Hogan & Hartson

555 13^th^ Street, NW

Washington, D.C. 20004

WISN Hearst-Argyle TV, Inc.

c/o Mark J. Prak, Esq.

Brooks Pierce McLendon Humphrey & Leonard, LLP

1600 Wachovia Capitol Center

150 Fayetteville Street Mall

Raleigh, North Carolina 27601

WCGV Licensee, LLC, and WVTV Licensee, Inc.

c/o Kathryn R. Schmeltzer, Esq.

Pillsbury Winthrop Shaw Pittman LLP

2300 N Street, NW

Washington, D.C. 20037

TV 49, Inc.

Denise B. Moline, Esq

Law Offices of Denise B. Moline

1212 South Naper Boulevard

Suite 119

Naperville, Illinois 60540

Illinois Broadcasters Association

c/o Richard R. Zaragoza, Esq.

Pillsbury Winthrop Shaw Pittman LLP

2300 N Street, NW

Washington, D.C. 20037

**APPENDIX**

**Stations Named in Petitions to Deny**

  -------------- -------------- --------------- ------------------ --------------
  CALL SIGN      COMMUNITY OF   LICENSEE        FILE NO.           FACILITY ID
                 LICENSE                                           NO.

  WBBM-TV        Chicago, IL    CBS             BRCT-20050801AFV   9617
                                Broadcasting,                      
                                Inc.                               

  WMAQ-TV        Chicago, IL    NBC Telemundo   BRCT-20050801CEL   47905
                                License Co.                        

  WLS-TV         Chicago, IL    WLS Television, BRCT-20050801CUZ   73226
                                Inc.                               

  WGN-TV         Chicago, IL    WGN Continental BRCT-20050801BXY   72115
                                Broadcasting                       
                                Company                            

  WCIU-TV        Chicago, IL    WCIU-TV Limited BRCT-20050801ADO   71428
                                Partnership                        

  WFLD(TV)       Chicago, IL    Fox Television  BRCT-20050729DSN   22211
                                Stations, Inc.                     

  WCPX(TV)       Chicago, IL    Paxson Chicago  BRCT-20050729AGG   10981
                                License                            

  WSNS-TV        Chicago, IL    NBC Telemundo   BRCT-20050801CFO   70119
                                License Co.                        

  WPWR-TV        Gary, IN       Fox Television  BRCT-20050401AQB   48772
                                Stations, Inc.                     

  WTMJ-TV        Milwaukee, WI  Journal         BRCT-20050729CYF   74098
                                Broadcast                          
                                Corporation                        

  WITI(TV)       Milwaukee, WI  WITI License,   BRCT-20050729DRL   73107
                                Inc.                               

  WISN-TV        Milwaukee, WI  WISN            BRCT-20050801CEF   65680
                                Hearst-Argyle                      
                                TV, Inc.                           

  WVTV(TV)       Milwaukee, WI  WVTV Licensee,  BRCT-20050801BDQ   74174
                                Inc.                               

  WCGV-TV        Milwaukee, WI  WCGV Licensee,  BRCT-20050801BBZ   71278
                                LLC                                

  WVCY-TV        Milwaukee, WI  VCY America,    BRCT-20050801AGS   72342
                                Inc.                               

  WMLW-CA        Milwaukee, WI  Channel 41 and  BRCT-20050801ADM   71422
                                63 Limited                         
                                Partnership                        

  WJJA(TV)       Racine, WI     TV-49, Inc.     BRCT-20050725ABE   68545

  WWRS-TV        Mayville, WI   National        BRCT-20050729DNH   68547
                                Minority T.V.,                     
                                Inc.                               

  WPXE(TV)       Kenosha, WI    Paxson          BRCT-20050729AIH   37104
                                Milwaukee                          
                                License, Inc.                      

  WDJT-TV        Milwaukee, WI  WDJT-TV Limited BRCT-20050801ADL   71427
                                Partnership                        
  -------------- -------------- --------------- ------------------ --------------

[^1]: The stations and licensees named in the petition are attached to
    this letter as an Appendix. CMA characterizes itself as "an activist
    group dedicated to analyzing and broadening Chicago's mainstream
    media and to building Chicago's independent media," while MPIMC
    states that it is an "*ad hoc* coalition of viewers and civic
    organizations concerned about the vitality of the electoral
    process." *CMA and MPIMC Petitions to Deny*, at Note 1.

[^2]: We will exercise our discretion and consider all of the pleadings,
    and allegations raised therein, that have been filed by the parties.
    Thus, we need not determine whether CMA or MPIMC have standing.

[^3]: 47 U.S.C. §309(d)(1); *Astroline Communications Co. Ltd.
    Partnership v. FCC,* 857 F.2d 1556 (D.C. Cir. 1988) ("*Astroline*").

[^4]: *Gencom, Inc. v. FCC*, 832 F.2d 171, 181 (D.C. Cir. 1987).

[^5]: *Id.* at 180, n. 11.

[^6]: *Astroline*, 857 F.2d at 1561; 47 U.S.C. §309(e).

[^7]: 47 U.S.C. §326; U.S. [Const.]{.smallcaps}, amend. I.

[^8]: *See, e.g., National Broadcasting Company v. FCC*, 515 F.2d 1101,
    1112-1113, 1119-1120, 1172 (1974), *vacated as moot, id.* at 1180,
    *cert. denied,* 424 U.S. 910 (1976); *Columbia Broadcasting System,
    Inc. v. Democratic National Committee*, 412 U.S. 94, 124 (1973);
    *Hunger in America*, 20 FCC 2d 143, 150-51 (1969).

[^9]: *American Broadcasting Companies, Inc.*, 83 FCC 2d 302, 305
    (1980). *See also Dr. Paul Klite*, 12 Com. Reg. (P&F) 79, 81-82 (MMB
    1998), *recon. denied sub nom., McGraw-Hill Broadcasting Co.*, 16
    FCC Rcd 22739 (2001).

[^10]: *Revision of Programming and Commercialization Policies,
    Ascertainment Requirements, and Program Log Requirements for
    Commercial Television Stations*, 98 FCC 2d 1076, 1090 (1984).

[^11]: *In the Matter of Standardized and Enhanced Disclosure
    Requirements for Television Broadcast Licensee Public Interest
    Obligations*, Notice of Proposed Rulemaking, 15 FCC Rcd 19816
    (2000).