Here, Fox Corporation was not acting as a press entity when Murdoch provided the Committee with the Biden advertisements. Murdoch’s actions fail both parts of the Commission’s two factor test for whether Fox Corporation was acting in its legitimate press function. First, the Biden advertisements had not aired at the time that Murdoch provided information about it to the Committee and, therefore, the material was not available to the general public. Second, Murdoch provided the Biden advertisements and information to the Committee through a private, and secret, direct communication. This “distribution” is diametrically opposed to Fox Corporation’s regular press activity broadcasting news programming through television and radio outlets and online publications. Murdoch’s secret conveyance of the Biden advertisement is even less like press activity than a cablecasting company sending campaign flyers in its bills – and neither can be protected by the press Exemption.

Fox Corporation, through Murdoch, appears to have engaged in the exact type of campaign activity to which the Commission has repeatedly affirmed the press exemption does not apply. Therefore, Fox Corporation cannot try to exploit the press exemption to avoid the consequences of making an illegal corporate in-kind contribution.