**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | EB-00-IH-0438                |
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| Section 403 Investigation        | * |                              |
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**ORDER**

**Adopted:** April 3, 2001 **Released:** April 6, 2001

By the Chief, Enforcement Bureau:

1.  In this order, we deny the "Complaint and Request for Section 403
    Investigation" filed on behalf of Smithwick & Belendiuk, P.C.
    ("Smithwick & Belendiuk"). The complaint generally alleges news
    distortion with respect to reports concerning the outcome of the
    Florida vote in the 2000 Presidential election that were broadcast
    on four television networks -- ABC, CBS, NBC and Fox (collectively,
    "the Networks"). In this regard, Smithwick & Belendiuk states that
    the Networks, all within the same time frame and all apparently
    relying on information collected by the Voter News Service ("VNS"),
    incorrectly projected that Florida's 25 electoral votes would go to
    candidate Al Gore. Smithwick & Belendiuk requests a formal Section
    403 investigation before an administrative law judge. For the
    reasons set forth below, we decline to initiate an investigation.

2.  The complaint states that the Networks broadcast erroneous reports
    as to the outcome of the Florida vote while polls were still open in
    parts of Florida and in other states outside the eastern time zone.
    The complaint characterizes the Networks' reports as "critical
    piece(s) of news distortion" and asserts that the Commission should
    initiate an investigation in order to determine whether the
    Networks' reports intentionally distorted available exit poll data
    collected by the VNS or whether the Networks' reports exhibited a
    reckless disregard for the accuracy of VNS's exit poll data.
    Smithwick & Belendiuk further asserts that the investigation should
    determine whether the Networks knowingly or recklessly made
    inaccurate statements as to the outcome of the Florida vote to
    generate ratings or to manipulate or influence voting and the
    outcome of the Presidential election.

3.  Whether or not to begin an investigation under Section 403 of the
    Act is a matter within the Commission's discretion. The mere fact
    that the Networks incorrectly projected that Al Gore would receive
    Florida's electoral votes is not a sufficient basis to initiate such
    an investigation. Accordingly, we deny Smithwick & Belendiuk's
    complaint and decline to initiate such an investigation.

4.  Accordingly, IT IS ORDERED THAT the "Complaint and Request for
    Section 403 Investigation" filed on November 28, 2000 by Smithwick &
    Belendiuk, P.C. IS HEREBY DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau