**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| Angelides For Governor Campaign  |   |                              |
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**ORDER**

**Adopted: October 26, 2006** **Released: October 26, 2006**

By the Assistant Chief, Policy Division, Media Bureau:

1.  The Commission has before it a complaint filed on October 12, 2006,
    by the Angelides for Governor Campaign ("Campaign") on behalf of
    Phil Angelides ("Angelides"), a Democratic candidate for Governor of
    California, against 11 television stations (list attached) in
    California. The Campaign alleges that Angelides is entitled to equal
    opportunities from the subject stations pursuant to Section 315 of
    the Communications Act of 1934, as amended ("Act"), that the
    stations have not responded to its request, that it considers their
    lack of response a rejection of its request for equal opportunities,
    and asks that the Commission "act on \[its\] complaint as quickly as
    possible." The stations filed responses to the complaint on October
    16, 2006, and the Campaign filed a reply on October 17, 2006. For
    the reasons set forth below, we conclude that the news interview
    segments of "The Tonight Show with Jay Leno" qualify for the *bona
    fide* news interview exemption under Section 315(a)(2), and that
    news interviews conducted on that program are exempt from equal
    opportunities.

2.  **Background**. The Campaign asserts that Angelides is entitled to
    15 minutes and 41 seconds of air time on the subject stations as a
    result of the appearance of Governor Arnold Schwarzenegger
    ("Schwarzenegger"), a Republican candidate for Governor of
    California, on "The Tonight Show with Jay Leno" ("The Tonight Show")
    on October 11, 2006. In its letter to the stations, as support for
    its request for equal opportunities, the campaign quotes a letter
    from Rep. Xavier Becerra (D-Calif.) (attached to its complaint) to
    The Honorable Kevin J. Martin, Chairman, Federal Communications
    Commission. In his letter, Rep. Becerra states that "any argument
    that suggests that The Tonight Show would fall under the four
    exceptions listed in paragraph (a) of §315 would lack merit,
    especially given the fact that The Tonight Show is controlled and
    operated by NBC's entertainment division, not its news division."
    The Campaign's complaint also references an October 11, 2006,
    article in the *Sacramento Bee* (attached to the complaint) in which
    an NBC spokesman is quoted as stating in 1984 that the subject
    program "is an entertainment show . . . It has always been an
    entertainment show and we have no desire for it become anything
    else."

3.  NBC Telemundo License Company ("NBC") filed a response with the
    Commission on behalf of three of the subject stations for which it
    is either the licensee or the controlling general partner of the
    licensee and indicated that the eight remaining subject stations
    concurred in its response.[^1] In its response, NBC contends that
    the Campaign's complaint should "be denied because Section 315(a)(2)
    of the Communications Act, Section 73.1941(a)(2) of the Commission's
    Rules and controlling Commission precedent clearly exempt The
    Tonight Show with Jay Leno, as a *bona fide* news interview program,
    from political equal opportunities obligations."[^2] It further
    asserts that the program meets the Commission's criteria for a *bona
    fide* news interview program because: it is regularly
    scheduled---airing every weeknight on the NBC network and in its
    current format since 1992; NBC Studios and Big Dog Company, the
    producers of the program, control all aspects of the program; and
    "the producers ensure that decisions as to format, content and
    participants are based on the producers' independent news judgment
    as to the participant's newsworthiness and not motivated by partisan
    purposes."[^3]

4.  NBC argues that the Campaign's characterization of "The Tonight
    Show" as an entertainment program is not relevant to the legal
    analysis of this case because "\[t\]he Commission long ago rejected
    any limitation on the applicability of the news interview exemption
    based on a categorization of a program in which the news interview
    appears."[^4] NBC cites a 1984 Commission decision regarding the
    "Donahue" program and more recent Commission staff decisions that
    found that certain programs or portions thereof qualified as *bona
    fide* news interviews. NBC argues that in the Donahue ruling and
    subsequent decisions, the Commission has expanded the types of
    programs eligible for the news interview exemption in recognition of
    change and innovation in broadcast production, and has expanded the
    scope of what constitutes news for purposes of the exemption.[^5]
    Given these decisions, NBC argues that the entire program should be
    considered a *bona fide* news interview program, including brief
    skits, live performances, and Jay Leno's opening monologue, which
    regularly details newsworthy events.

5.  In support of its position, NBC states that "The Tonight Show"
    includes interviews of many newsworthy persons, including public,
    entertainment, and political figures with a variety of perspectives,
    about current noteworthy events. Such persons have included
    California Governor Gray Davis and U.S. Senators Hillary Clinton and
    John McCain. It also points to a study reported by the Pew Research
    Center in 2004 that "concluded that late night talk shows, including
    The Tonight Show with Jay Leno, were increasingly important sources
    of political news, particularly for younger viewers."[^6] NBC states
    that the fact that "The Tonight Show" has been characterized as an
    entertainment program has no bearing on whether it can qualify for a
    news exemption. In support of this argument, NBC cites the
    Commission's decision that portions of the "Donahue" show qualified
    as exempt news interviews as precedent for the Commission's
    rejection of "any limitation on the applicability of the news
    interview exemption based on a categorization of the program in
    which the news interview appears." [^7] The same decision, NBC
    states, confirms "that the Bureau would defer to a programmer's good
    faith discretion as to the newsworthiness of guests."[^8] While NBC
    notes a 1960 decision in which the Commission found that the Jack
    Paar program, also known as "The Tonight Show," was not exempt from
    the equal opportunities provision,[^9] the company argues that this
    decision has been implicitly overruled by subsequent rulings.[^10]

6.  In its reply, the Campaign argues that "The Tonight Show" is not a
    *bona fide* news interview program but is instead "an attempt by an
    entertainment figure, Jay Leno, to use his access to the public
    airwaves to promote his good friend's political campaign."[^11] It
    points to various quotes by NBC executives in which they describe
    the show as entertainment. The Campaign also asserts that although
    "The Tonight Show" has had a handful of political guests in the
    past, only once before has a guest been a legally qualified
    candidate for public office at the time of his appearance. In
    addition, it claims that most of the political guests have appeared
    to promote books or movies and, therefore, were booked for
    "entertainment purposes." It further contends that there was no
    "newsworthy" purpose to Schwarzenegger's subject appearance. That
    fact, the Campaign contends, combined with "Leno's promotion and
    support of Schwarzenegger's political career," raises a serious
    question as to whether the decision to have Schwarzenegger as a
    guest on the show was made in good faith and based on
    newsworthiness.[^12] In particular, the Campaign notes that Leno
    appeared as "Master of Ceremonies" at Schwarzenegger's 2003 party
    celebrating his victory in his first race for Governor of
    California.[^13]

7.  The Campaign argues that, unlike "The Tonight Show," whose host is a
    comedian and whose guests are primarily entertainers, most of the
    exempt news programs cited by the subject stations were hosted by
    former journalists and "were primarily forums to discuss public
    affairs and provide useful information to viewers." It distinguishes
    the subject program from "Entertainment Tonight" (found to be a
    *bona fide* newscast), stating that the latter uses "the same
    methods and journalistic guidelines typical of traditional
    newscasting," and from "Politically Incorrect" (found to be a *bona
    fide* news interview), stating that that program was about politics
    and current events.[^14] The Campaign disagrees with NBC's
    contention that the Commission's 1960 decision concerning the Jack
    Paar program, also known as "The Tonight Show," has been implicitly
    overruled by subsequent rulings.[^15] The Campaign notes that the
    1960 program, which the Commission ruled was not exempt from the
    equal opportunities provision, had substantially the same general
    format as the current "Tonight Show with Jay Leno."

8.  **Discussion.** 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 to use its facilities. There are,
    however, exceptions to the equal opportunities provision.
    Appearances by legally qualified candidates on certain categories of
    *bona fide* news programming, including *bona fide* news interviews,
    are exempt from equal opportunities.[^16] When adopting these
    exemptions in 1959, Congress indicated that, to qualify as a *bona
    fide* news interview program, a program must be regularly scheduled;
    the content, format, and participants must be determined by the
    licensee;[^17] and the determination that programming is a bona fide
    news interview must have been made by the station "in the exercise
    of its bona fide news judgment and not for the political advantage
    of the candidate for political office."[^18] Although Congress did
    not specifically define the term "news" when adopting these
    exemptions, the Commission has stated that "it is clear that in
    enacting the exemptions Congress envisioned increased news coverage
    of the political process. It would seem elemental that Congress
    contemplated interviews with elected officials and candidates for
    elected office as newsworthy subject matter."[^19]

9.  During the 25 years following enactment of the news exemptions, the
    Commission determined that only programs with traditional question
    and answer formats such as "Meet the Press" and "Face the Nation"
    qualified as news interview programs; Congress had noted these as
    examples of the kind of news interview programs in existence when it
    enacted the news exemptions. In 1984, however, the Commission began
    taking a significantly broader view of the scope of the news
    interview exemption. In finding that *bona fide* news interview
    segments on the "Donahue" show were exempt from Section 315(a), the
    Commission ruled that exempting less conventional interview formats
    as bona fide news interviews is consistent with Congress' intent in
    adopting the exemptions to increase news coverage of the political
    campaign process. The Commission stated that "it would be unsound to
    rule that a program involving a unique or innovative approach to
    interviewing its guests somehow lacks sufficient licensee control
    evident in traditional news interview programs like 'Meet the Press'
    or 'Face the Nation.'"[^20] To do so, the Commission stated, "would
    discourage programming innovation by sending a signal to
    broadcasters that to be exempt an interview program should adhere
    only to the format of certain programs mentioned by Congress over 25
    years ago."[^21] The Commission also stated that "the fact that
    other 'Donahue' segments may not include discussions pertaining
    directly to the political arena, or even to current news events,
    would appear immaterial."[^22] Since the *Donahue* decision, the
    Commission has ruled that other news interview programs or segments
    thereof with unique and innovative format elements, such as the
    "Sally Jessy Raphael Show", "Jerry Springer," "Politically
    Incorrect," and "Howard Stern,"[^23] qualify for the news interview
    exemption under Section 315(a).

10. Our decisions stress that the Commission defers to the reasonable,
    good faith judgment of broadcasters regarding newsworthiness. A
    Commission staff ruling that "Entertainment Tonight" was a *bona
    fide* newscast under Section 315(a)(1) quotes from a decision in
    which the Commission stated: "\[t\]he term '*bona fide*' (which is
    used to qualify all of the Section 315 exemptions) was intended to
    emphasize Congress' intent that the programs be of genuine news
    value and not be used to advance the candidacy of a particular
    individual."[^24] The *Entertainment Tonight* ruling further states
    that "Congress did not note that *bona fide* news could be coverage
    of only certain substantive areas."[^25] It stated that the prospect
    of the Commission making determinations as to whether particular
    kinds of news are more or less *bona fide* "would involve
    unwarranted intrusiveness into program content and would be thus, at
    least suspect under the First Amendment."[^26] The ruling concludes
    that "\[so\] long as the program characteristics set out by Congress
    are met, our role is properly limited to determining whether a
    broadcaster was reasonable in deciding that a program fits within an
    exemption. Our role is not to decide, by some qualitative analysis,
    whether one kind of news story is more *bona fide* than
    another."[^27]

11. We find that the news interview portions of "The Tonight Show with
    Jay Leno" meet the criteria for exemption as a *bona fide* news
    interview. The program is regularly scheduled, its producers control
    all aspects of the program, and the producers assert that decisions
    as to format, content and participants are based on the producers'
    independent news judgment as to the participant's newsworthiness and
    not motivated by partisan purposes. The fact that many interviews on
    the program concern entertainment is irrelevant. We note that
    "Entertainment Tonight" reports and airs commentary regarding
    current events and stories concerning various aspects of the
    entertainment industry and was nonetheless found to qualify as a
    *bona fide* newscast. Similarly, "The Tonight Show with Jay Leno"
    often interviews individuals, including many from the entertainment
    industry, regarding current events, including entertainment and
    political news.

12. With respect to the Campaign's argument that Schwarzenegger is not
    newsworthy, we again note the Commission's observation in *Donahue*:
    "\[i\]t would seem elemental that Congress \[when adopting the news
    exemptions\] contemplated interviews with elected officials and
    candidates for elected office as newsworthy subject matter."[^28] As
    the Commission stated in *Donahue*, "Congressional intent is to
    defer substantially to the good faith news judgments of
    licensees."[^29] As in *Entertainment Tonight*, if the criteria for
    a *bona fide* newscast are met, the Commission's role is not to
    decide whether one kind of news story is more *bona fide* than
    another but rather to determine whether a broadcaster's decision
    that a program fits a particular news exemption is reasonable.
    Similarly, our role in this case is not to second-guess broadcasters
    about the relative newsworthiness of interviewees, but to decide if
    the broadcasters were reasonable in determining that the news
    interview segments of "The Tonight Show with Jay Leno" fit within
    the news interview exemption.[^30] We note that, in the segment at
    issue here, the interview addressed topics that included the
    Governor of California's views on immigration reform, bipartisan
    legislative activities in California, and the war in Iraq. Based on
    the record before us, we cannot say that the producers' judgment
    that the news interview segments of "The Tonight Show with Jay Leno"
    fit within the news interview exemption was unreasonable.

13. Nor do we find that the decision to invite Schwarzenegger on "The
    Tonight Show with Jay Leno" was motivated by partisan purposes.
    Here, NBC specifically represents that the producers of "The Tonight
    Show with Jay Leno" ensure that such decisions are based on the
    participant's newsworthiness and are not motivated by partisan
    purposes, and the Angelides campaign has not provided sufficient
    evidence to rebut this representation. The campaign's assertion that
    Schwarzenegger's appearance was an attempt by Jay Leno to promote
    Schwarzenegger's campaign is based on little more than speculation.
    Even were we to accept the campaign's position that Leno and
    Schwarzenegger are friends, that fact by itself would not establish
    that the producers' decision to invite Schwarzenegger on the program
    was motivated by a desire to help his campaign. Indeed, we note that
    Schwarzenegger appeared on the "Tonight Show with Jay Leno" twice in
    both 2004 and 2005, even though he was not a candidate for any
    office during either year, a fact which rebuts any assertion that
    the invitation for Schwarzenegger to appear on the show was an
    out-of-the-ordinary attempt by the show's producers to aid
    Schwarzenegger's candidacy. Moreover, we note that prior to entering
    politics, Schwarzenegger was a movie star with nationwide appeal. It
    would thus not be unreasonable for the producers of the "Tonight
    Show with Jay Leno" to reach the conclusion that an interview with
    Schwarzenegger, who is a national celebrity outside of California,
    would be of particular interest to the program's nationwide
    audience. Therefore, such a decision raises no inference of partisan
    motivation.

14. Nor do we find Jay Leno's lack of journalistic credentials to be
    controlling here. Although hosts of some *bona fide* news programs
    in the past have had journalism backgrounds, such credentials in a
    host are by no means a prerequisite for a program to be considered a
    *bona fide* news program.[^31]

15. The Commission's decision in *Jack Paar* is not relevant to this
    case because it was decided using standards that are no longer in
    force. In *Jack Paar*, the Commission found that an appearance by a
    candidate on the "Jack Paar" program was not exempt from the equal
    opportunities provision primarily because station logs listed the
    show as a "variety program."[^32] *Jack Paar* was decided in 1960,
    one year after Congress adopted the news exemptions. As previously
    noted, the Commission at that time considered only programs with
    traditional question-and-answer formats such as "Meet the Press" and
    "Face the Nation" to be qualified as news interview programs. As
    discussed above, the Commission has, since 1984, consistently ruled
    that exempting less conventional interview formats is consistent
    with Congress' intent in adopting the exemptions to increase news
    coverage of the political campaign process. The Campaign's reliance
    on the staff decision involving Pappas Telecasting's donation of
    free air time to the Fresno County Republican Central Committee is
    also misplaced.[^33] That ruling did not involve a news interview
    program, and there is no indication in that ruling that the program
    was regularly scheduled, that the producers or licensees controlled
    the program format, content or participants, or that the selection
    of the participants was based on their newsworthiness. Indeed, free
    air time was donated in that case to political party committees that
    distributed the time to the party's candidates.[^34]

16. We do not (and need not) find, however, that the entire subject
    program is exempt from Section 315(a) as a *bona fide* news
    interview. Although we found all of the program "Politically
    Incorrect," including the host's monologue, to be a *bona fide* news
    interview program, we found that the monologue in that case was
    closely related to the interview portion of the program. NBC has not
    indicated that the monologue on "The Tonight Show" is in any way
    connected to its news interview segments. In addition, the types of
    program segments described by NBC as "brief skits" and "live
    performances from entertainment talent" were specifically excluded
    from qualifying as exempt news programming in *Entertainment
    Tonight.* That decision states that "the presentation of skits,
    dramatic readings, music, comedy, or other forms of pure
    entertainment would not meet the congressional intention" behind
    adopting news programming exemptions to the equal opportunities
    provision.[^35] Based on this precedent, we are unable to conclude
    on the current state of the record that the entire "Tonight Show
    with Jay Leno" program is exempt from Section 315(a).

17. Based on the record before us, we conclude that the interview of
    Governor Schwarzenegger on "The Tonight Show with Jay Leno"
    qualifies for the *bona fide* news interview exemption under Section
    315(a)(2).

18. Accordingly, IT IS ORDERED that the complaint filed by the Angelides
    for Governor Campaign IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

Robert L. Baker

Assistant Chief

Policy Division

> Media Bureau

**ATTACHMENT**

[Stations]{.underline}

KGET-TV

Bakersfield, CA

KNVN(TV)

Chico, CA

KIEM-TV

Eureka, CA

KSEE(TV)

Fresno, CA

KNBC(TV)

Los Angeles, CA

KMIR-TV

Palm Desert, CA

KCRA-TV

Sacramento, CA

KSBW(TV)

Salinas, CA

KNSD(TV)

San Diego, CA

KNTV(TV)

San Jose, CA

KSBY(TV)

San Luis Obispo, CA

[^1]: We note that several of the subject stations also filed individual
    responses to the complaint. With one exception, the individual
    responses make similar arguments to NBC and will not be referred to
    separately. The General Manager of Station KMIR-TV, Palm Desert, CA,
    indicates that the station is making arrangements to provide time to
    Angelides, although not in direct response to Angelides' request for
    time.

[^2]: NBC Response at 1.

[^3]: *Id*.

[^4]: *Id*. at 2.

[^5]: *Id*. at 2-3, citing, *e.g.,* *Request by Multimedia
    Entertainment, Inc. for Declaratory Ruling*, 56 R.R.2d 143 (1984)
    ("*Donahue*"); *Request of ABC, Inc.*, 15 FCC Rcd 1355 (MMB 1999)
    ("*Politically Incorrect*"); *Request for Declaratory Ruling By
    Paramount Pictures Corporation, et al.*, 3 FCC Rcd 245 (1988)
    ("*Entertainment Tonight*").

[^6]: NBC Response at 2, citing Pew Research Center for the People and
    Press, "Cable and Internet Loom Large in Fragmented Political News
    Universe at 11 (Jan. 11, 2004).

[^7]: *Donahue*, *supra*.

[^8]: *Id*.

[^9]: *Broadcast Actions, Lar Daly Rulings*, 40 FCC 314 (1960) ("*Jack
    Paar*").

[^10]: NBC Response at 3, n.6.

[^11]: Campaign Reply at 1.

[^12]: *Id*. at 3.

[^13]: *Id*. at 1.

[^14]: *Id*. at 4.

[^15]: *Id*. at 5.

[^16]: 47 U.S.C. §315(a)1-4.

[^17]: In 1981, the Commission determined that independently produced
    programs may also be considered exempt news programming. However, in
    doing so, the Commission also indicated that whenever a news
    exemption is sought for an independently produced program,
    "licensees must still make a determination to air individual
    programs in the exercise of their *bona fide* news judgment."
    *Request for Declaratory Ruling on Independently Produced News
    Interviews*, 7 FCC Rcd 4681, 4685 (1981). Accordingly, the licensees
    of the stations on which the subject program airs "must
    independently make a determination to air the program, not for the
    political advantage of any candidate for public office, but in the
    good faith exercise of their news judgment." Id.

[^18]: 105 Cong. Rec. 17777 (1959).

[^19]: *Donahue*, 56 R.R.2d at 147.

[^20]: *Id*. at 146.

[^21]: *Id*.

[^22]: *Id*. at 148.

[^23]: *Request of Multimedia Entertainment, Inc.*, 6 FCC Rcd 1798 (MMB
    1991) ("*Sally Jessy Raphael"*); *Request of Multimedia
    Entertainment, Inc.*, 9 FCC Rcd 2811 (MMB 1994) ("*Jerry Springer)*;
    *Politically Incorrect*, *supra*; *Request of Infinity Broadcasting
    Operations, Inc.*, 18 FCC Rcd 18603 (MB 2003) ("*Howard Stern*").
    *See* *Request of Infinity Broadcasting Corporation of Illinois*, 12
    FCC Rcd 773 (MMB 1997) (Ed Vrdolyak and Ty Wansley).

[^24]: *Entertainment Tonight,* 3 FCC Rcd at 245, quoting *Henry
    Geller*, 95 FCC 2d 1236 (1983).

[^25]: *Id*. at 245.

[^26]: *Id*.

[^27]: *Id*. at 245-6.

[^28]: *Donahue*, 56 RR 2d at 147.

[^29]: *Id*. at 148.

[^30]: We note that broadcast licensees must provide truthful and
    accurate statements to the Commission or be in violation of Section
    1.17 of the Commission's Rules, 47 C.F.R. §1.17.

[^31]: *See*, *e.g.*, *Politically Incorrect*, *supra*; *Howard Stern*,
    *supra*.

[^32]: *Jack Parr*, *supra*.

[^33]: *See* Complaint and attached decision.

[^34]: *See id.*

[^35]: *Entertainment Tonight*, 3 FCC Rcd at 246.