John Jay Myers for Senate 4440 Lawnview Ave.

Dallas, TX 75227 September 25, 2012 Federal Communications Commission Media Bureau, Policy Division 445 12th St., SW Washington, DC 20554 Dear FCC Policy Division, The Dallas, Texas, station WFAA is hosting a United States Senate candidate debate on Tuesday, October 2. Only candidates Ted Cruz (Republican) and Paul Sadler (Democrat) have been invited to participate. WFAA has failed to invite John Jay Myers (Libertarian), who is also running for this office. John Jay Myers meets all of the legal qualifications for a United States Senator and has been properly nominated by the Libertarian Party of Texas at its June convention. He will therefore be appearing on the November 6 general election ballot. It is our contention that 47 USC § 315(a) regarding equal opportunities applies in this case and that WFAA’s debate cannot qualify as a “bona fide news event” under 47 USC § 315(a)(4) due to the subjective, inconsistent, and biased nature of WFAA’s candidate selection. When the Myers campaign sought an explanation regarding how WFAA determined which candidates to invite, this was the August 28 e-mail response from Executive News Director Carolyn Mungo: Dear Mr. Myers, Thank you for writing. We have held several debates over the years at WFAA. Here are the criteria we use for entrance into the October 2nd debate: · Receives significant levels of public support in independent public opinion polls (e.g. 15 percent, which is the minimum used by the Commission on Presidential Debates). · Has received substantial campaign contributions from varied sources. · Has received a substantial level of votes in prior elections for the same or comparable office. · Expected to be reported by news agencies in election night returns. · Has received significant news coverage from a wide range of media outlets. Sincerely, Carolyn Mungo Executive News Director WFAA-TV 214-977-6296

The Myers campaign challenges the validity of these criteria on the grounds that they either fail to provide concrete thresholds for their metrics, or they cannot be proven in this case all. We contend that WFAA has arbitrarily chosen the candidates and even altered its criteria after the fact to accommodate a particular candidate. Below is our discussion of each item individually. Polls - Independent public opinion polls cannot be a valid metric because WFAA has not produced evidence of any independent public opinion polls regarding this race. There were a number of polls conducted specifically for individual party primaries, or before any party nominated any candidate. It is our contention that WFAA could not and did not use polls to make their candidate selection because none were available regarding the general election candidates. Therefore no candidate can be said to have met the 15% they claim to require. Contributions - WFAA has provided no guidance on what constitutes “substantial” contributions. The lack of a specific threshold renders this criterion meaningless. Where WFAA has failed, the Federal Elections Commission has succeeded in providing a universal, measurable, and verifiable standard of $5,000 to define individuals as “candidates”. John Jay Myers has met this objective standard by raising over $5,000 by the end of the second quarter (this is the last publicly available report). To date, John Jay Myers has raised over $12,000 (to be reported at the end of the third quarter). Prior Elections - Ted Cruz has never run for elected office, while Paul Sadler has. Both were invited. No candidate has run for statewide election before. The inconsistent application of this criterion suggests a partisan bias. There is also no standard for what constitutes “substantial” results. Election Night Returns - WFAA is claiming clairvoyance when making decisions based on future media coverage. They do not know what will be reported on any other station, and they could only know what will be reported on their own station if they have already decided whom to include, or exclude. It can only be known that all qualified candidates for the ballot, including John Jay Myers, will be reported by the Texas Secretary of State and the county elections offices. News Coverage - If every news station only covered candidates who had previously been covered by other stations, there would be no political news. Not only is this a self-fulfilling excuse to include only their favorites, but it also lacks any means to prove or disprove it. There is no number of articles, size or number of media outlets, nor any other measurable way to meet this requirement. As further evidence of inconsistent, arbitrary, and biased criteria, here is the full text of a September 12 article about a John Jay Myers protest of his exclusion from the debate. This can be found online here: #f27f90df2d733a6 DALLAS — Carrying signs saying "Let us debate" and "Let the candidate speak," a handful of people supporting the Libertarian candidate for U.S. Senate protested Wednesday outside the WFAA studio in downtown Dallas.

The group is upset because John Jay Myers has not been invited to participate in the Belo Debate scheduled for October 2. The Myers campaign has not been able to meet any of the five criteria laid out by WFAA to be eligible take part in the debate. So far, only Republican Ted Cruz and Democrat Paul Sadler have been asked and have accepted invitations to take part in the event. The five primary criteria used by WFAA to determine who is invited include whether a candidate: * receives significant levels of public support in independent public opinion polls (e.g. 15 percent, which is the minimum used by the Commission on Presidential Debates) * has received substantial campaign contributions from varied sources * has previously held significant public office(s) * has received a substantial level of votes in prior elections for the same or comparable office(s) * will be reported by news agencies in election night returns * has received significant news coverage from a wide range of media outlets The Belo debate will be broadcast live on WFAA Channel 8 and to a statewide audience online. Whereas our initial correspondence with Carolyn Mungo suggested five criteria, there are actually six bullet points in this new list. The new criterion is, “has previously held significant public office(s)”. It is our contention that this can only be a last minute addition, manufactured specifically for this article, as suggested by twice mentioning “five” criteria earlier in the article. The new criterion benefits Ted Cruz the most, as he has held public office but not elected office. The change from five to six points makes it clear that WFAA's criteria are dynamic, meaning that they are not objective and cannot be achieved by any reasonable effort, even with foresight of knowledge and valiant effort to meet them. WFAA is presenting a moving target for candidates that they have decided to change at will. WFAA has also claimed here that, “The Myers campaign has not been able to meet any of the five criteria laid out by WFAA to be eligible take part in the debate.” Two of the criteria, polls and election night coverage, cannot be proven for any candidate as described above. Mr. Myers has met a FEC threshold for contributions, a figure that can be used in the absence of any objective alternative from WFAA. John Jay Myers has also received news coverage from a variety of news outlets, as shown on his press page here. Thus, John Jay Myers meets two of the three criteria that would be possible to prove were WFAA to provide some measurable standard. Meanwhile, Ted Cruz fails to meet at least one of the criteria: past election results. So in addition to all of the above, WFAA cannot make up its mind on how many of the criteria must be met for a candidate to participate in this debate. The

criteria therefore appear to us to be a farce used only after the fact to justify the favoritism of their choices. In conclusion, WFAA has provided inapplicable, unmeasurable, arbitrary, and inconsistently applied debate criteria. WFAA has made no attempt to give objective metrics so campaigns, regulators, and the general public can be aware of how candidates were selected for their debate. Where criteria essentially boil down to a numerical value, the absence of any guidance transforms an otherwise objective criterion into a subjective one. They have further concocted new requirements in an apparent attempt to cover a previous oversight and in favor of one candidate over others. The whole purpose of the “bona fide” requirement for news events is to protect the public interest from the arbitrary whims of broadcasters. Consistent and objective standards is one way to accomplish this. But in this case, WFAA has sided with the two parties it favors and offered empty criteria only to create the illusion of legitimacy. As Libertarians we believe strongly in freedom of speech and of the press. However, when broadcast television stations arbitrarily choose which candidates the public is shown, and when they choose the same parties that write communications laws, and when no objective standard is applied, we do not believe they can any longer be considered free. WFAA has chosen to serve the two party duopoly rather than the public interest, to anoint its favorite candidates rather that offer alternative viewpoints, and to artificially manufacture news rather than report it. It is therefore our request that John Jay Myers be afforded the equal opportunities of 47 U.S.C. 315(a). Specifically, we request that John Jay Myers be included in the October 2 debate. A separate opportunity would not be an equal opportunity, because those seeing only two candidates in a widely televised debate would be led to believe that there are only two candidates in the race. Thank you for your time. Regards,

Jordan Wagnon Campaign Manager and Treasurer 4440 Lawnview Ave. Dallas, TX 75227 214-766-3613

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