**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Request of )

)

**ABC, Inc.** )

)

For Declaratory Ruling )

**STAFF RULING**

**Adopted**: December 9, 1999 **Released**: December 10, 1999

By the Chief, Mass Media Bureau:

1\. The Commission has before it a request for declaratory ruling filed
by ABC, Inc. (\"ABC\") on behalf of Buena Vista Television, Inc.
(\"Buena Vista\"), the producer of the program \"Politically Incorrect
with Bill Maher\" (\"Politically Incorrect\").[^1] ABC seeks a ruling
that \"Politically Incorrect\" is exempt from the \"equal
opportunities\" provision of Section 315(a) of the Communications Act of
1934, as amended (the \"Act\"). 47 U.S.C. 315(a).

2\. Based on the representations of ABC discussed below, we believe
\"Politically Incorrect\" is, consistent with the Act, the legislative
history and precedent, a *bona fide* news interview program and, as
such, is exempt from the equal opportunities requirement under Section
315(a)(2) of the Act.

**I. FACTUAL BACKGROUND**

3.  ABC explains that \"Politically Incorrect\" is hosted by \"satirist
    and humorist\" Bill Maher, who begins each program with a
    \"monologue\" on current news-related issues. He then introduces a
    panel of four persons from various fields including the media,
    academia, politics, and popular culture. Mr. Maher poses an issue
    from his monologue and asks for his guests\' opinions. Occasionally,
    the program will focus on a single issue; more typically it will
    involve discussion of several current issues of the day. ABC
    contends that the satirical aspect of Mr. Maher\'s monologue should
    not be an impediment to an exemption because satire has long been
    recognized as an important and serious part of the American
    political landscape.[^2]

4\. ABC argues that \"Politically Incorrect\" fully satisfies the
Commission\'s established criteria for exempt *bona fide* news interview
programs in that: (1) it has been a regularly scheduled half-hour
program, broadcast by the ABC television network each weekday evening
since January 6, 1997; (2) the producer, Buena Vista, controls all
aspects of the program, ensuring that decisions as to format, content,
and participants are based on *bona fide* journalistic judgment and not
motivated by partisan purposes; (3) Buena Vista selects the guests from
a variety of fields based on the guests\' \"involvement in newsworthy
events,\" \"competence to discuss current issues,\" and
\"represent\[ation\] \[of\] a cross-section of ideologies to stimulate a
lively exchange of views;\"[^3] (4) prior to the taping of each show,
\"the producers meet with the guests to review the pre-selected issues
and their positions on the issues\" and intervene during commercial
breaks as they deem necessary to give direction to the participants; and
(5) Mr. Maher exercises control over discussions by preventing
speechmaking and steering straying comments back to the main topics.

**II. DISCUSSION**

5\. Section 315(a) of the Act provides that if a broadcaster permits a
legally qualified candidate for public office to \"use\" a broadcast
station, it must afford equal opportunities to all legally qualified
opponents for the same office.[^4] In 1959, Congress amended Section 315
so that appearances by legally qualified candidates on the following
types of news programs would be exempt from equal opportunities
requirements:

\(1\) *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. Section 315 (a)(1-4).

6\. Congress\' fundamental purpose in enacting these exemptions was to
encourage increased news coverage of political campaigns and to give
broadcasters the discretion to exercise their good faith news judgment
in deciding which candidates to cover and in what formats. The
legislative history emphasizes the congressional intention:

> \[T\]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.

105 Cong. Rec. 14451 (1959) (Holland); *See also* *Chisholm v. FCC*, 538
F.2d 349, 176 U.S. App. D.C. 1 (1976). Neither the explicit terms of the
statute nor the legislative history of the news exemption amendments,
however, reveal the specific format characteristics envisioned by
Congress for any of the exemptions. Indeed, the legislative history
demonstrates that Congress chose to leave to the Commission the task of
interpreting which kinds of programming properly fit the scope of each
exemption. In affirming the Commission\'s 1975 decision that candidate
debates should be exempt under Section 315(a)(4) (\"on-the-spot coverage
of *bona fide* news events\"), the *Chisholm* court observed:

> In creating a broad exemption to the equal time requirements in order
> to facilitate broadcast coverage of political news, Congress knowingly
> faced risks of political favoritism by broadcasters, and opted in
> favor of broader coverage and increased broadcaster discretion. Rather
> than enumerate specific exempt and non-exempt \"uses,\" Congress opted
> in favor of legislative generality, preferring to assign that task to
> the Commission.

*Chisholm v. FCC*, 538 F.2d at 366. *See also* 105 Cong. Rec. 16227
(1959) (Celler); 105 Cong. Rec. 14455 (1959) (Pastore). Although
Congress did not specifically detail exempt formats, nor define exactly
what it meant by \"news,\"[^5] the legislative history indicates that,
in general, the common characteristic envisioned of each exemption is
\"bona fide news value.\" Thus, Congress qualified each exemption with
the term \"*bona fide*\" to emphasize that, to be exempt from the equal
opportunities requirement, news programming should be genuinely
newsworthy and not designed for the partisan purpose of advancing or
harming any particular candidate. The legislative history also shows
that Congress expected *bona fide* news interview programs to be
regularly scheduled and under broadcaster control.[^6]

7\. Thus, in deciding whether a program qualifies as a \"*bona fide*
news interview\" under Section 315(a)(2), a three-prong test evolved:

\(1\) whether the program is regularly scheduled;

\(2\) whether the broadcaster or an independent producer controls the
program;[^7] 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 or harm an individual\'s candidacy.

8\. The Commission remained conservative in its analysis of news
interview exemption requests under this test for over twenty-five years,
essentially limiting the news interview exemption to what it viewed as
more traditional question and answer formats like those cited in the
legislative history (\"Meet the Press,\" \"Face the Nation\" and \"Youth
Wants to Know\"). In 1984, however, the Commission reversed an earlier
denial of a news interview exemption to the \"Donahue\" program.
*Multimedia Entertainment, Inc.*, 56 RR 2d 143, 146
(1984)(\"*Donahue*\"). The *Donahue* decision signaled the Commission\'s
willingness to recognize varying less conventional interview formats as
being consistent with Congress\' overriding intent to increase news
coverage of the political campaign process.[^8]

9\. In *Donahue*, with respect to the second prong of the test, whether
sufficient control over the program is present, the Commission concluded
that:

> \[I\]t 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 more traditional news interview
> programs like \"Meet the Press\" or \"Face the Nation\" when the
> licensee has implemented reasonable techniques to ensure control. To
> do so 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
> twenty-five years ago.

56 RR2d 146. As to the third prong, good faith news judgment, the
Commission reasoned that it should not second-guess broadcasters about
the relative newsworthiness of the interviewees or the topics of
discussion. The Commission concluded that it should confine its analysis
to whether the broadcaster acted reasonably and in good faith. *Donahue*
stressed that \"reasonable persons may differ\" about the newsworthiness
of particular topics or guests, and that absent bad faith or
unreasonableness, the

Commission should follow Congress in its willingness to take risks with
the exemptions and thus defer substantially to broadcasters\' good faith
journalistic judgment.[^9]

10\. We believe that ABC has satisfied each prong of the test. First,
\"Politically Incorrect\" has been regularly scheduled for almost two
years, clearly meeting this requirement. Second, as to control, ABC has
identified various reasonable mechanisms Buena Vista has implemented for
exercising control throughout the production of \"Politically
Incorrect\" and those structural safeguards appear reasonably designed
to assure that good faith news judgment can be adequately protected.
Third, ABC represents that Buena Vista\'s decisions about format,
content and selection of participants are based on newsworthiness and
not motivated by any partisan purpose. The presence of satire as an
element of \"Politically Incorrect\" should not prevent the program from
being considered *bona fide* in terms of good faith news judgment absent
an indication that the satire is utilized to advance or harm any
particular candidate for public office. The Supreme Court in the
*Falwell* decision noted the importance of satire in political speech,
stating that, \"Despite their sometimes caustic nature, from the early
cartoon portraying George Washington as an ass down to the present day,
graphic depictions and satirical cartoons have played a prominent role
in public and political debate.\" 485 U.S. 46, 54. Satire in the form of
a broadcast monologue about news of the day or during discussion of such
issues does not appear less important in the realm of political debate
than political cartoons.

**III. CONCLUSION**

11\. Congress knowingly gave the Commission substantial discretion to
interpret the news exemptions to the equal opportunities requirement and
decided that the risk of some broadcasters abusing the exemption for
partisan purposes was outweighed by the benefit to the public inherent
in increased news coverage of political campaigns. In attempting to
fulfill the letter and the spirit of the law, the Commission\'s
decisions in this area have continued to expand the kinds of programming
eligible for exemption in recognition of change and innovation in
broadcast production. Granting an exemption to \"Politically Incorrect\"
is consistent with these principles.

12\. Accordingly, for all of the above-stated reasons, ABC\'s request
for declaratory ruling that \"Politically Incorrect\" is exempt from
Section 315(a) of the Act, as a *bona fide* news interview program under
Section 315(a)(2), IS GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Roy J. Stewart

Chief, Mass Media Bureau

[^1]: ^    ?^ Buena Vista is an indirect wholly-owned subsidiary of the
    Walt Disney Company. ABC, which operates the ABC television network
    through its American Broadcasting Companies, Inc. subsidiary, is
    also an indirect wholly-owned subsidiary of the Walt Disney Company.

[^2]: ^    ?^ ABC notes that the U.S. Supreme Court has recognized
    satire as constitutionally protected, citing *Hustler Magazine v.
    Falwell,* 485 U.S. 46, 51 (1988) (\"*Falwell*\"), in which a cartoon
    satirizing the Rev. Jerry Falwell was deemed fully protected by the
    First Amendment. The Court also stated its view that satirical
    cartoons had played an important role in political debate throughout
    our history.

[^3]: ^    ?^ ABC states that from the political realm the program often
    includes elected officials and persons aspiring to be elected.

[^4]: ^    ?^ In general, a use is any \"positive\" identified or
    identifiable appearance of a legally qualified candidate. This
    excludes disparaging depictions by opponents or third-party
    adversaries. *See Report and Order,* 7 FCC Rcd 678, 684 (1991).

[^5]: ^    ?^ While the legislative history lacks any specific
    discussion of the format of exempt news interviews, there is
    reference to three programs, \"Meet the Press,\" \"Face the Nation\"
    and \"Youth Wants To Know\" as the kind of interview programming it
    envisioned.

[^6]: ^    ?^ One passage is particularly illustrative of what Congress
    considered critical in connection with the news interview exemption.
    Senator John O. Pastore, the sponsor of the Senate bill, made clear
    in Senate floor debate that a news interview program would be exempt
    if the programming:

    had a current, bona fide news value, and was not being used for
    purposes of advancing the cause of the candidacy of any one
    particular candidate . . . \[a\]nd if it were on a regularly
    scheduled program, and if its content and format were exclusively
    within the jurisdiction and control of the broadcaster or the
    network, and were done for legitimate, bona fide news reasons, it
    would be exempted, and would not be a use which the candidate was
    making of that channel.

    105 Cong. Rec. 17828 (1959).

[^7]: ^    ?^ In 1992, the Commission expanded the test to allow
    exemptions to independently-produced news interview programs. In
    doing so, the Commission emphasized that a licensee who chooses to
    carry such programming must still assure itself that the format is
    nonpartisan and under sufficient producer control to assure against
    abuse. *Request for Declaratory Ruling on Independently Produced
    News Interviews*, *In Re Independently Produced News Interview
    Programs*, 7 FCC Rcd 4681 (1992), *aff\'d sub nom, TRAC v. FCC*, 26
    F.3d 185 (D.C. Cir. 1994).

[^8]: ^    ?^ *Donahu*e also discussed the format of \"Youth Wants To
    Know,\" one of the three programs mentioned in the legislative
    history and concluded that it too was not a traditional question and
    answer format. Rather, the Commission stated that it was \"an
    innovative program of its time involving questions posed by
    students, not professional journalists . . . To argue that such a
    format guaranteed adherence to a licensee\'s journalistic judgment
    any more than the \"Donahue\" format cannot be justified and appears
    to be inconsistent with the legislative history.\" 56 RR2d at 146.

[^9]: ^    ?^ Since *Donahue* the Commission has continued to grant
    exemptions to news interview programs similar to the Donahue program
    or with other unique and innovative format elements. *See e.g*.
    *Pacifica Radio Town Hall Meetings*, 9 FCC Rcd 2817 (MMB 1994);
    *Face to Face, 9 FCC Rcd 2813 (1994); Larry King*, 56 RR2d 956 (MMB
    1984). The Commission has also determined that different areas of
    news coverage are eligible for exemption under 315(a). In 1988, the
    Mass Media Bureau granted the \"Entertainment Tonight\" program an
    exemption (under 315(a)(1), *bona fide* newscast), stating that no
    controlling distinction can be made between various kinds of
    \"news\" such as entertainment, business, sports, and religion. The
    Bureau said that \"a determination \[of whether a program is *bona
    fide*\] should not be predicated on the subject matter reported on,
    but rather should be judged on a basis of whether the program
    reports news of some area of current events. *In Re Paramount
    Communications, Inc*., 3 FCC Rcd 245 (MMB 1988).