NEW WORLD COMMUNICATION OF TAMPA, INC. v. AKRE
866 So.2d 1231 (2003)
NEW WORLD COMMUNICATIONS OF TAMPA, INC., d/b/a WTVT-TV, Appellant,
v.
Jane AKRE, Appellee.
No. 2D01-529.
District Court of Appeal of Florida, Second District.
February 14, 2003.
Order Granting Rehearing and Clarification and Denying Rehearing and Certification Denied February 25, 2004.
William E. McDaniels and Thomas G. Hentoff of Williams & Connolly LLP, Washington, DC, Patricia Fields Anderson, P.A., St. Petersburg, and Gary D. Roberts and Theodore A. Russell of Fox Group Legal Department, Los Angeles, CA, for Appellant.
Michael S. Finch, St. Petersburg, and Stuart C. Markman, Robert W. Ritsch, and Katherine Earle Yanes of Kynes, Markman & Felman, P.A., Tampa, for Appellee.
Roy C. Young of Young, vanAssenderp, Varnadoe & Anderson, P.A., Tallahassee, for Amicus Curiae The Florida Chamber of Commerce.
Robert Corn-Revere and Brad C. Deutsch of Hogan & Hartson, LLP, Washington, DC, for Amicus Curiae Belo Corp., Cox Television, Inc., Gannett Co., Inc., Media General Operations, Inc., and Post-Newsweek Stations, Inc.
Order Granting Rehearing and Clarification and Denying Rehearing En Banc and Certification Denied February 25, 2004.
KELLY, Judge.
New World Communications of Tampa, Inc., d/b/a WTVT-TV, a subsidiary of Fox Television, challenges a judgment entered against it for violating Florida's private sector whistle-blower's statute, section 448.102, Florida Statutes (Supp.1998). We reverse.
In December 1996, WTVT hired the appellee, Jane Akre, and her husband, Steve Wilson, as a husband-and-wife investigative reporting team. Shortly after Akre and Wilson arrived at WTVT, they began working on a story about the use of synthetic bovine growth hormone ("BGH") in Florida dairy cattle. Their work on this story led to what could be characterized as an eight-month tug-of-war between the reporters and WTVT's management and lawyers over the content of the story. Each time the station asked Wilson and Akre to provide supporting documentation for statements in the story or to make changes in the content of the story, the reporters accused the station of attempting to distort the story to favor the manufacturer of BGH.
In September 1997, WTVT notified Akre and Wilson that it was exercising its option to terminate their employment contracts without cause. Akre and Wilson responded in writing to WTVT threatening to file a complaint with the Federal Communications Commission ("FCC") alleging that the station had "illegally" edited the still unfinished BGH report in violation of an FCC policy against federally licensed broadcasters deliberately distorting the news. The parties never resolved their differences regarding the content of the
story, and consequently, the story never aired. In April 1998, Akre and Wilson sued WTVT alleging, among other things, claims under the whistle-blower's statute. Those claims alleged that their terminations had been in retaliation for their resisting WTVT's attempts to distort or suppress the BGH story and for threatening to report the alleged news distortion to the FCC. Akre also brought claims for declaratory relief and for breach of contract. After a four-week trial, a jury found against Wilson on all of his claims. The trial court directed a verdict against Akre on her breach of contract claim, Akre abandoned her claim for declaratory relief, and the trial court let her whistle-blower claims go to the jury. The jury rejected all of Akre's claims except her claim that WTVT retaliated against her in response to her threat to disclose the alleged news distortion to the FCC. The jury awarded Akre $425,000 in damages.
While WTVT has raised a number of challenges to the judgment obtained by Akre, we need not address each challenge because we find as a threshold matter that Akre failed to state a claim under the whistle-blower's statute. The portion of the whistle-blower's statute pertinent to this appeal prohibits retaliation against employees who have "[d]isclosed, or threatened to disclose," employer conduct that "is in violation of" a law, rule, or regulation. § 448.102(1)(3). The statute defines a "law, rule or regulation" as "includ[ing] any statute or ... any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business." § 448.101(4), Fla. Stat. (1997). We agree with WTVT that the FCC's policy against the intentional falsification of the news—which the FCC has called its "news distortion policy"—does not qualify as the required "law, rule, or regulation" under section 448.102.
1. We are aware of the Fourth District's decision in Forum v. Boca Burger, Inc.,788 So.2d 1055 (Fla. 4th DCA 2001), review granted, 817 So.2d 844 (Fla.2002). We have concluded that it is not pertinent to our decision because Salter still represents this district's position regarding whether defense of a judgment on appeal can ever be considered frivolous. Additionally, we find nothing in Forum that expressly repudiates that principle, which was the law in the Fourth District when Forum was decided. See Coral Springs Roofing Co. v. Campagna,528 So.2d 557 (Fla. 4th DCA 1988). Rather, the holding in Forum is directed to the proper construction of a 1999 amendment to section 57.105, Florida Statutes, that the Fourth District concluded broadened the circumstances under which a fee award could be made under that statute.