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Federal Communications Commission Record 9 FCC Red No

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Federal Communications Commission Record 9 FCC Red No FCC 94-45 Federal Communications Commission Record 9 FCC Red No. 6 FM in Pahrump, Nevada. Westcott apparently assumes that Before the material aired during the "Howard Stern Show" as broad Federal Communications Commission cast by KFBI-FM was necessarily broadcast by KEGL. Washington, D.C. 20554 There is no basis in the record for this assumption where, as here, the station charged with a violation is an indepen dent editorial entity carrying the cited programming by In re Application of contractual arrangement with its producer and there is no evidence to corroborate that the particular passages claimed Eagle Radio, Inc. File No. BRH-900402ZG by the complainant to be indecent were in fact aired by KEGL. Under these circumstances, we do not believe that further action on Westcott©s informal objection is war For Renewal of License of ranted. Station KEGL(FM) Fort Worth. Texash Blackwell Objection 3. Blackwell©s objection states that he supports the sepa rate objections filed by the NAACP and by Wescott. MEMORANDUM OPINION AND ORDER Blackwell also raises several additional categories of ar guments against renewal of KEGL©s license. Adopted: March 3, 1994; Released: March 4, 1994 4. Misconduct By KEGL Employees. Blackwell©s primary category of arguments concern the actions of KEGL©s Chief By the Commission: Engineer and one of the station©s disc jockeys in their capacities as ham radio operators. Blackwell alleges that 1. On February 1, 1994 the Commission released a de the KEGL employees, via a repeater located atop KEGL©s cision acting upon the license renewal application for building, made racist, harassing, and indecent remarks over station KEGL(FM). 1 Our decision found that KEGL vio amateur radio frequencies. He also alleges, without specify lated our Equal Employment Opportunity (EEO) require ing the method used, that the employees electronically ments, issued a Notice of Apparent Liability for a $18,750 jammed the signal of an FM radio station which competes forfeiture, and renewed KEGL©s license for a short term with KEGL and engaged in several high-tech pranks subject to EEO reporting conditions. In arriving at this against the competitor and Blackwell.3 Finally, Blackwell result, we addressed a joint petition filed by the NAACP alleges that the employees made false statements or at and the National Black Media Coalition. However, we tempted to cheat on FCC amateur radio license exams. inadvertently failed to consider informal objections filed by Blackwell does not allege that the licensee itself was in Al Wescott and Tom Blackwell, and a separate document volved in any of these matters but indicates that the station in which the NAACP comments on the Wescott and should be responsible for actions of its employees. The Blackwell objections.2 So that we may address the Wescott licensee responds that Blackwell has not shown any of the and Blackwell filings, we hereby reconsider the KEGL matters alleged attributable to the licensee©s actions. decision on our own motion. See 47 C.F.R. § 1.108. Upon 5. The Commission finds it of utmost importance that that reconsideration, however, we conclude that the allega broadcasters maintain effective control over station oper tions of Wescott and Blackwell do not raise any substantial ations and personnel. Trustees of University of Pennsylvania, and material question of fact requiring resolution in a 69 FCC 2d 1394, 1396-97 (1978). Consistent wi©th this hearing and, therefore, we affirm our grant of KEGL©s requirement, we will hold a broadcast licensee responsible license renewal. for rule violations by station employees acting within the scope of their employment. See generally Pacifica Founda Wescott Objection tion, 95 FCC 2d 750, 764 (1983). The matters alleged here, 2. Westcott is the author of a series of past complaints however, appear to concern the actions of station employ against various broadcast stations alleging the broadcast of ees acting as individuals. The only alleged connections indecent language during the "Howard Stern Show." Some between KEGL and the described incidents are (1) that of these complaints have named KEGL, while others have KEGL may have allowed a station employee to locate an not. None of these complaints, however, appear to be based amateur repeater (owned by the employee) on the roof of upon Westcott©s personal knowledge of programming aired the KEGL building; and (2) that the station©s Chief En by KEGL. Rather, during the period relevant here, West gineer may have used a telephone in KEGL©s building to cott personally heard and recorded the assertedly indecent call Blackwell prior to a prank which allegedly was en material cited in these complaints as it was aired by KFBI- gineered from a different location. This, without more. 1 Memorandum Opinion and Order and Notice of Apparent KEGL instead. There are numerous allegations of harassing Liability, FCC 94-17, 9 FCC Red (released February 1, 1994). pranks directed at Blackwell. For example. Blackwell©s tele That decision also acted upon the license renewal applications phone number was entered into pocket pagers resulting in of seven other Texas radio stations which are not affected by numerous unwanted telephone calls to him at all hours. Such our action herein. actions, however, have not been linked with KEGL©s licensee. 2 The NAACP©s comments on the Wescott and Blackwell Additionally, the allegations of telephone harassment would not objections address an issue separate and distinct from those appropriately be handled by this Commission in the first in raised in the NAACP©s own Petition to Deny. stance. Allegations of telephone harassment are best resolved in 3 The jamming allegedly resulted in the broadcast of a tape of a civil lawsuits for invasion of privacy, or in criminal cases racial slurs and expletives on the competitor©s frequency. Some brought by the U.S. Attorney or local law enforcement officials. one also allegedly changed the competing station©s telephone See Elimination of Unnecessary Broadcast Regulation, MM answering machine message so that callers were told to call Docket No. 83-842, 54 RR 2d 1043, 1055 (1983). 1294 9 FCC Red No. 6 Federal Communications Commission Record FCC 94-45 does not establish a sufficient nexus between the alleged vate litigation initiated by the copyright owner. With re actions of the individuals and their employment at KEGL. spect to the alleged broadcast of personal attacks, we do not Thus, while we do not condone the actions described by prohibit such attacks. Pursuant to our personal attack rule, Blackwell, the alleged employee misconduct would not however, we do under certain circumstances require that establish a basis for action against KEGL©s licensee. We did, persons attacked be given an opportunity for response. 47 however, refer these matters to our Private Radio Bureau C.F.R. § 73.1920. Blackwell has not shown that the station (which oversees amateur radio operations) and to our violated our personal attack rule. The rule only covers Dallas Field Office (which investigates allegations of radio attacks on a person©s honesty, character, or integrity during interference) for their consideration of the allegations as discussions of controversial issues of public importance. they relate to the individuals.4 Blackwell alleges insults to intelligence and physical ap 6. Programming Allegations. Blackwell©s other allegations pearance7 and does not allege that such attacks occurred in concern KEGL©s programming. He quotes excerpts of let connection with discussions of controversial issues of pub ters in KEGL©s public file in which listeners complain lic importance. about program content they considered to be in poor taste.5 9. Blackwell©s allegation that KEGL misrepresented taped He also includes transcripts of allegedly indecent and/or material as being aired live falls within the scope of our racist material which he himself heard on the station. rules but Blackwell does not make a prima facie case of a Blackwell also alleges that the station violates copyright rule violation. We require broadcasters to announce that laws by altering music, that it aired personal attacks against material is taped if the program makes an affirmative Mr. Wescott and others, and that it announced pre-re attempt to create the impression that it is occurring si corded material as being aired live. multaneously with the broadcast. 47 C.F.R. § 73.1208. 7. In view of the First Amendment rights of broadcasters Blackwell alleges that KEGL violated this rule by making it and the noncensorship provision of the Communications appear that a taped interview with musicians was live. His Act. the Commission rarely interferes with a licensee©s allegations, however, are based only on hearsay statements programming decisions. See 47 U.S.C. § 326. With certain of others which do not directly support his allegations, and limited exceptions prescribed by rule or statute, we afford on his own non-expert perceptions of whether the inter licensees substantial discretion over the programming they view sounded edited. Accordingly, we do not find these present. See Mahoning Valley Broadcasting Corp., 39 FCC allegations actionable.8 2d 52, 58 (1972). 10. With respect to Blackwell©s allegations that KEGL 8. Most of Blackwell©s programming allegations, if true, aired indecent programming during the "Howard Stern would fall within the licensee©s discretion or outside the Show", we have reviewed the transcript supplied and con jurisdiction of this Commission. With respect to offensive clude that, even assuming that the material as reported in or racist statements made on air, for example, we would Blackwell©s objection can be corroborated and was aired by not interfere because "if there is to be free speech, it must KEGL, it would not raise a substantial and material ques be free for speech that we abhor and hate as well as for tion of fact concerning the licensee©s basic qualifications speech that we find tolerable or congenial."6 Anti-Defama and does not therefore constitute a basis for reversing or tion League of B nai B rith, 4 FCC 2d 190, 192 (1966), aff'd modifying our prior renewal grant.9 6 FCC 2d 385 (1967).
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