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                                                          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"). 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.
     
     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;" (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. 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," 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.
 
     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; 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.  

     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.  

     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