Burnett show accused of being rigged

Does the FCC have authority to regulate a TV quizshow before it has been aired? That’s the “$64,000 Question” being asked in the wake of the agency’s decision to look into the Fox network’s canceled “Our Little Genius.”

The probe was prompted by a letter sent to the FCC in December by the parent of a potential contestant for the proposed Fox show, created and produced by Mark Burnett. The letter alleged that a production staffer briefed a contestant and his parents on potential topics and questions to be asked.

“Our Little Genius” was deleted from the Fox sked in January, days before its planned premiere. Burnett said in a statement that he had requested that Fox not air these episodes that had been prepared.

Although the language in the statute is somewhat ambiguous, and could conceivably invite a challenge, two Washington, D.C., communications attorneys say the FCC almost certainly does not have the authority to regulate a quizzer before airing. Both said their respective views are based on quick readings of the provision that was inserted into the Communications Act following the quiz-show scandals of the 1950s.

Section 508 of the Communications Act of 1934 states that it is unlawful for anyone to supply any contestant with knowledge or intellectual skills that would predetermine the outcome of the contest. It is also unlawful to “produce or participate in the production for broadcasting” of any such program.

But importantly, the statute defines “contest” as “any contest broadcast by a radio (or TV) station in connection with which any money or any other thing of value is offered as a prize” paid by the program sponsor or others.

In other words, “the statute is only triggered when you have a gameshow that has been broadcast,” said attorney Jack Goodman with WilmerHale.

The view is supported by D.C. attorney John Hane with the law firm Pillsbury. “If a contest is not broadcast, I don’t believe it falls under this specific act,” he said. “I’m not aware of any cases that were prosecuted without a program being broadcast.” Both attorneys noted that they did not research the statute’s legislative history.

An FCC spokesman declined to comment on whether the agency considers the statute applicable to the “Genius” situation. He confirmed only that the FCC has received a complaint about it.

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