Floyd Abrams: FCC Has ‘Ample Basis’ To Revoke Fox O&O License in Philadelphia

Jan 23, 2024

By Ted Hearn, Editor of Policyband

Washington, D.C., Jan. 23, 2024 – Leading First Amendment attorney Floyd Abrams claims federal regulators have “ample basis” to revoke Fox Corp.’s TV station license in Philadelphia over 2020 election falsehoods aired on Fox News Channel and various Fox-owned TV stations.

Abrams said he came to his conclusion after reviewing presiding Delaware Judge Eric Davis’s determinations about Fox’s journalism in the Dominion Voting System defamation case and submissions in the same case by the Media and Democracy Project about the conduct of Fox executives over 2020 election reporting by Fox News Channel.

In a brief filing with the Federal Communications Commission yesterday, Abrams zeroed in on Fox’s contention that failure to renew the license of Fox 29 Philadelphia over a national political dispute would abridge the company’s First Amendment rights.

“As for Fox’s claim that the First Amendment itself would be violated if it were denied license renewal, its own willful decision to repeatedly broadcast false information about the election, as Judge Davis decided, provides ample basis to do just that,” Abrams said in his three-page filing.

The FCC – which oversees the eight-year licenses of more than 1,700 full power TV stations – has the authority to adopt and enforce regulations as to “the citizenship, character, and financial, technical, and other qualifications of the applicant” to operate a TV station. The agency has yet to issue a ruling on renewal of Fox 29 WTXF.

The FCC’s decision to revoke the license could be seen as partisan as the agency has a one-vote Democratic majority and Fox News Channel is widely known for its appeal to conservative views, including supporters of former President Donald Trump. Last month, the FCC was accused of acting politically in a broadband subsidy dispute with Elon Musk, who has been critical of the Biden White House.

In December, Fox called on the FCC to renew the license without delay, asserting that the opposition has turned the renewal into a quarrel over issues that fall outside the scope of the agency’s review.

The Media and Democracy Project last summer challenged the renewal of Fox’s owned and operated WTXF over the revelations in the Dominion Voting System case, which Fox settled for $787.5 million.

MAD is seeking an evidentiary hearing at the FCC that would require Fox to turn over documents related to the Dominion settlement – a production demand that Fox has previously dismissed as not concerning “conduct relevant to the [FCC’s] review of Fox 29 Philadelphia’s application to continue to broadcast and serve the public.”

Abrams said he was offering informal personal comments submitted on his own behalf, adding that he does not have personal involvement in the Fox station renewal.

Abrams said that a TV station renewal is rarely of national interest, but the controversy surrounding renewal of Fox’s Philadelphia station was different.

“… I do believe that the application of WTXF for license renewal may well turn out to be one of the most significant ones that the [FCC] has ever issued and that it will inevitably have a significant First Amendment impact,” Abrams said.

Abrams said he found that Davis issued a “comprehensive and persuasive opinion” documenting that “Fox News Channel purposely broadcast significant falsehoods about the election.”

He also said he found “found persuasive ... the submission of the Media and Democracy Project that concluded that ‘Fox and its top management decided to pursue a false narrative that the election had been rigged, despite knowing that the claims it reported were false.’”

Abrams is currently a lecturer at Columbia Law School and has taught First Amendment law at Yale Law School and other law schools.

Abrams is the author of three books on the First Amendment, including “Speaking Freely” (2005), “Friend of the Court” (2013) and “The Soul of the First Amendment” (2017).

He has argued 13 cases before the U.S. Supreme Court, including CBS vs. FCC, a 1981 case about the right of political candidates for federal office to advertise over the broadcast airwaves during election season.