Padden: Fox’s Smartmatic Case Setback Needs FCC Review

Jan 25, 2024

By Ted Hearn, Editor of Policyband

Washington, D.C., Jan. 25, 2024 – A leader in the effort to strip Fox Corp. of a TV station license is renewing calls for a federal regulatory hearing based on recent developments in a defamation case about Fox News Channel’s 2020 election coverage.

Former Fox executive Preston Padden, in a filing with the Federal Communications Commission today, called on the agency to hold a hearing on Fox’s fitness to continue as the licensee of Fox 29 in Philadelphia based on revelations in Smartmatic’s $2.7 billion defamation case against Fox.

In the filing, Padden quoted the court’s wording delivered yesterday in the Smartmatic case – “plaintiffs have sufficiently alleged that [Fox] Corp. employees acted with malice by purposely and deliberating publishing knowingly false stories …” to underscore the need for an FCC hearing.

“This is exactly what was alleged in the Media and Democracy Project Petition to Deny [renewal of Fox 29] and reinforced by the Informal Comments of our group and by Professor [Floyd] Abrams. At the very least, the [FCC] must hold a hearing on these issues,” Padden’s filing said.

Padden, other prominent individuals, and the Media and Democracy Project are pressing the FCC to revoke Fox Corp.’s license to operator the Philadelphia station. They say Fox News Channel and Fox TV stations aired falsehoods about the 2020 election related to the accuracy of voting-counting technology.

On Wednesday, a Manhattan Supreme Court judge ruled that Smartmatic can proceed with its case against Fox Corp. over Fox News Channel’s reporting that the voting technology flipped votes to ensure President Donald Trump lost the 2020 election. Smartmatic now has judicial approval to move forward with its suits against both Fox News and Fox Corp.

On Monday, prominent First Amendment attorney Floyd Abrams claimed in an FCC filing that the agency has “ample basis” to revoke Fox’s Philadelphia license based on Fox News’ “willful decision to repeatedly broadcast false information about the election …”

The FCC has the legal authority to revoke Fox’s eight-year license to operate the Philadelphia station. But the agency has yet to issue a decision.

Fox has called on the FCC to renew the license without delay, claiming that opponents have injected a political dispute into a regulatory review thought to be insulated from partisan interference.

Earlier this month, Pennsylvania State Rep. Morgan Cephas, a Democrat, sent a brief letter calling on the FCC to renew the Philadelphia license.

“Whether it's your preferred channel or not, Fox 29 has shined a light on all Philadelphia's challenges and successes,” the lawmaker said. “Fox 29 has and continues to remain both an important part of our daily routine and an essential source of information.”

Padden and the others sought the license revocation after Fox paid $787.5 million to settle a lawsuit that alleged that false reporting by Fox News Channel defamed Dominion Voting Systems by saying the company’s vote-counting system was rigged against Trump. They also cited extensive findings by Delaware Judge Eric Davis that Fox News aired significant falsehoods about the 2020 election.

Joining Padden in the dispute are former Republican FCC Chairman FCC chairman Alfred Sikes; former Democratic FCC Commssioner Ervin Duggan; and former Weekly Standard editor and Fox News contributor Bill Kristol. Padden was a Fox executive in the 1990s, working under Fox Corp. Chairman Rupert Murdoch.

Abrams, who has argued more than a dozen First Amendment cases before the Supreme Court, said in his FCC filing that the Philadelphia license renewal dispute “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.”