Law firm asks FCC to investigate early election calls

Friday, December 1, 2000

A Washington D.C.-based law firm has asked the Federal Communications
Commission to start an investigation into why the four major broadcast networks
projected Vice-President Al Gore as the winner of Florida’s electors before the
state’s polls closed on Election Day.

Smithwick & Belendiuk, a firm that represents radio and television
stations and a number of other communications clients before the FCC, filed a
five-page complaint contending that the networks — ABC, CBS, Fox and NBC
— subverted the public interest by rushing to call the presidential

Specifically, the Nov. 29 complaint noted that, on Nov. 7, some
networks announced that Gore had won Florida’s 25 electors even though some
polls on the state’s panhandle had yet to close. The networks later recanted
the projection and, early the next morning, named Texas Gov. George W. Bush as
the winner.

Arthur Belendiuk, co-founder of the firm, said the foul-up sparked
concern nationwide about possible bias among the broadcasters.

“It’s getting people believing that the networks fixed the election,”
Belendiuk said in a telephone interview. “Really, the FCC should come in and
fix it.”

Belendiuk told Reuters that the firm is filing the complaint on its
own behalf and that the firm does not represent any of the networks.

The firm’s complaint caps a series of efforts to investigate what led
the major networks and the Associated Press to award Florida to Gore so

Rep. Billy Tauzin, the Republican chairman of the House Commerce
Committee’s telecommunications panel, has called for a
congressional investigation into
how the early election calls affected voter turnout and whether any network
biases were involved.

In another matter, the Committee for Honest Politics
filed several lawsuits last month
on behalf of Republicans who said the projections for Gore discouraged them
from voting. The lawsuit seeks an injunction against seven TV networks and the
Voter News Service, which conducted exit polls for the networks, to prevent
them from making similar projections in future elections before all polls close
in a state.

Belendiuk said his firm’s complaint seeks only an FCC investigation at
this time.

“To be the first with a call in Florida means ratings and the calculus
of ratings easily translates into revenues,” said the complaint filed with the
FCC. “Thus it appears that the networks subverted the public interest for a few
extra dollars of revenues.”

David Fiske, spokesman for the FCC, said the commissioners typically
do not comment on complaints pending before them. But he noted that both
federal law and the First Amendment forbid any commission action that expressly
censors broadcast material.

“The commissioners generally don’t get involved in a news judgment
issue,” Fiske said in a telephone interview.

He referred to a 1997 FCC policy statement that stated: “In a
democracy, dependent upon the fundamental rights of free speech and press, the
FCC cannot authenticate the news that is broadcast nor should it try to do so.
The Commission is not the national arbiter of the ‘truth’ of a news event or
the judge of the wisdom, accuracy or adequacy with which it may have handled on
the air.”

Belendiuk said he disagreed with the First Amendment concerns
surrounding his firm’s complaint.

“If that’s the issue, then it makes it seem that the networks can
never be criticized, that you can never speak out,” he said.

He said the FCC certainly would get involved if a radio broadcaster
took to the airwaves to perpetuate a hoax, such as a planned bombing of the
nation’s capitol. The First Amendment, he says, hardly protects such

“Here it compares with citizens who had hoped to vote (but) were, in
essence, told that the contest was over, ‘You don’t need to vote,’ ” he said.

As of yesterday, the complaint hadn’t circulated among the four major
networks. Spokespeople for each network said in telephone interviews that they
wouldn’t comment on the complaint at this time. But each network, along with
CNN, has already started internal investigations into the election-night

“We called for a review of Voter News Service with outside experts,”
said Jeff Schneider, spokesman for ABC News. “We are doing an extensive review
of what occurred. And we take it very seriously.”

Schneider said the network has already pledged to project winners of
future elections only after the last scheduled poll closing time in that state
and to support a uniform national poll closing time. When the network does make
a projection, he said, it will only do so after careful analysis and without
pressure from other news organizations.

Schneider said ABC News will also explain to its viewers that such
projections are estimates and not a report of the final election results.

In a letter to Rep. Tauzin, CBS News President Andrew Heyward blamed
the networks’ mistaken calls for Gore and later for Bush on flawed exit polls
in the Tampa area and a “significant computer error” in Volusia County’s
election agency.

But Belendiuk called the early morning projection for Bush “harmless”
because all votes had been cast. The Gore prediction, he said, came before all
polls had closed and thus might have discouraged some voters.

“They were not under First Amendment pressure but completely under
competitive pressure to call it first,” he said of the networks.

The complaint further reads: “If the commission determines that the
network intentionally or recklessly broadcast false information to the American
public it should take appropriate action up to and including disqualifying
those responsible from holding FCC broadcast licenses.”

Dennis Wharton of the National Association of Broadcasters, which
represents thousands of broadcasters across the country, said he hasn’t seen
the complaint but said it seems to overreact to a mistake.

“I think it would be a surprise if there was any finding that they
deliberately made a mistake,” Wharton said. “Mistakes get made in broadcasting
… and in law firms.”

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