Fulani v. Federal Communications Commission

49 F.3d 904, 23 Media L. Rep. (BNA) 1813
Court of Appeals for the Second Circuit·Decided March 16, 1995·No. No. 834, Docket 94-4100·Published·Cited by 2 cases

Opinion

JOSÉ A. CABRANES, Circuit Judge:

This case concerns the “equal opportunities” or “equal time” requirement of the Communications Act of 1934. Under this provision, when a licensed broadcast station permits any “legally qualified candidate for any public office” to “use” a station, the licensee must provide all other legally qualified candidates with an equal opportunity to use its facilities. See 47 U.S.C. § 315(a) (1988). The Act exempts from the equal opportunity requirement four categories of “news” events, including “bona fide news interview[s].” Id. The issue before us is whether the Federal Communications Commission acted reasonably in exempting as a bona fide news interview a live appearance by Ross Perot on ABC.

[906]*906In the late evening of June 29, 1992, ABC aired a special program entitled, “Who is Ross Perot?,” which included a live appearance by Ross Perot — a then-undeclared independent candidate for President of the United States in the 1992 election — before a studio audience. Petitioner Lenora B. Fulani, another independent candidate for the presidency, filed a request for an equal opportunity to appear on ABC, pursuant to § 315(a). ABC denied Fulani’s request. Subsequently, Fulani filed a complaint with the FCC.

In a letter ruling dated October 21, 1992, the FCC’s Mass Media Bureau concluded that the “Who is Ross Perot?” telecast was exempt from the equal opportunity requirement as a “bona fide news interview.” Lenora B. Fulani, 7 F.C.C.R. 6882 (MM Bur. 1992) (“Mass Media Ruling ”). For a broadcast to qualify for this exemption, FCC case law requires that it be “regularly scheduled.” U.S. News and World Report, L.P., 2 F.C.C.R. 7101, 7102 (1987). The Mass Media Bureau found that “Who is Ross Perot?” met this requirement, because it was, in fact, an edition of ABC’s “Nightline” series. See Mass Media Ruling, 7 F.C.C.R. at 6883.

On May 16, 1994, the FCC issued an opinion affirming the findings of the Mass Media Bureau and denying Fulani’s “application for review.” Lenora B. Fulani, 9 F.C.C.R. 2258 (1994) (“Fulani”). Pursuant to 47 U.S.C. § 402(a) (1988) Fulani now seeks review of this order. We hold that the FCC acted reasonably in finding that Fulani was not entitled to an equal opportunity, and thus we deny her petition for review.

I

In the late spring and early summer of 1992, the American public was captivated by the possibility of Ross Perot’s independent candidacy for President of the United States in the general election of Nov. 3, 1992.1 At the height of the Perot arabesque, ABC put together a two-part package collectively entitled “Who is Ross Perot?,” which aired the night of June 29, 1992, spilling into the early morning of June 30.

' The first part of the telecast, which aired from 10 to 11 p.m. Eastern Standard Time, consisted of an edited documentary profile of Perot. The second part, which began at 11:30 p.m. and ran until 1:10 a.m., was broadcast live and carried the subtitle “National Town Meeting.” During the live segment, Perot appeared in person before a studio audience in New York, with additional audience' members in ABC studios across the nation electronically linked.2

ABC news anchor Peter Jennings hosted the live segment of the telecast, opening it by welcoming viewers to “a National Town Meeting with Ross Perot, undeclared candidate for president.” Jennings explained the rationale for the “town meeting” format as follows:

Earlier this evening, we devoted an hour to several episodes of Mr. Perot’s career which, in our view, help us all to better understand who he is. He has developed something of a reputation for not thinking very much of the press inquiring into his past, suggesting on other occasions that we prevent him from having direct access to the voters. Well, tonight is a chance for him to interact with what we hope is a broad representation of his fellow citizens, who join us live, at our invitation, in 10 different cities.

ABC News Special Show # ABC-37: Who is Ross Perot? (ABC television broadcast, June 29, 1992) (transcript reprinted at J.A. 65-80) [hereinafter “Transcript”]-. The town meeting consisted of a question-and-answer session, with audience members asking questions of Perot — questions that had been [907]*907screened in advance by ABC,3 and whose order had been predetermined by ABC’s broadcast booth.

Prior to the audience questions,- Jennings told Perot, “before our hour this evening, you did say that you might want to take a minute or so at the beginning of this program to respond to the hour we did on you in prime time, so be my guest.” Transcript at 1. Perot proceeded to speak for approximately fifteen minutes, primarily about his family and his business, with Jennings interjecting occasionally to ask questions or ask for clarifications. Id. at 1-3.

Following Perot’s response, Jennings began taking questions from the audience for Perot to answer. Altogether, Perot responded to twenty questions, on such topics as abortion rights, foreign investment in American baseball, homosexuals in the. military, and Perot’s alleged penchant for investigating people. Id. at 3-14. Although most of these questions had been preselected by ABC, and the questioners called on by Jennings, at one point an audience member who had not been called on interjected with an accusation that Perot was biased against homosexuals, to which Jennings allowed Perot to respond. Id. at 5.

One week after the airing of “Who is Ross Perot?,” on July 6, ABC received a letter from the Fulani presidential campaign requesting an equal opportunity to use ABC’s broadcast facilities pursuant to Section 315(a). Copies of the letter were transmitted to all the ABC affiliates that broadcast into the eight states in which Fulani had qualified Tor the presidential ballot.

On July 9, 1992, ABC rejected Fulani’s request to appear on ABC, on the grounds that “Who is Ross Perot?” was exempt from the equal opportunity requirement as a “bona fide news interview” under § 315(a)(2).4 All the ABC affiliates of which Fulani had requested an equal opportunity also declined her request.

More than two months after ABC’s denial of Fulani’s equal opportunity request, Fulani filed a complaint with the FCC. The complaint, dated September 11, 1992, alleged that the live segment of “Who is Ross Perot?” did not meet the requirements for the “bona fide news interview” exemption, because it was a onertime news special rather than an edition of a “regularly scheduled” series.

The FCC’s Mass Media Bureau, acting pursuant to its delegated authority, denied Fulani’s complaint in a letter ruling of October 21, 1992. The Bureau found that “Who is Ross Perot?” met the criteria for the § 315(a)(2) “bona fide news interview” exemption — criteria established by FCC precedent. See U.S. News, 2 F.C.C.R. 7101. Among these criteria, the one most vigorously contested was the requirement that an exempted news interview be “regularly scheduled.” See id. at 7102..

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Fulani v. Federal Communications Commission, 49 F.3d 904, 23 Media L. Rep. (BNA) 1813 (2d Cir. 1995).

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