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Federal Communications Commission Record DA 95-904

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Federal Communications Commission Record DA 95-904 10 FCC Red No. 9 Federal Communications Commission Record DA 95-904 that she is a Dallas resident, a member of ART, that she is Before the "one of the signers of the Anti-Howard Stern Petition Federal Communications Commission prepared by [ART] for submission to the Attorney General Washington, D.C. 20554 of the United States," and that "[a]s one of the signers of [that] petition, I have personal knowledge of the indecency violations broadcast on the Howard Stern Show which LETTER form the basis of the petition to deny." In the second affidavit, dated November 3, 1993, Terry Rakolta ("Rakolta") states that she is the founder of ART, that ART Released: April 28, 1995 "speaks upon behalf of a group of Dallas listeners support ing ART," that "[Turnage] has personal knowledge of the In Reply Refer To: allegations of fact," and that the facts set forth in the ART 1800B3-KDY pleading "are true and correct to the best of my knowl edge, information and belief." should designate the Ernest T. Sanchez, Esquire ART contends that the Commission subject assignment application for hearing because Infinity Baker & McKenzie "is an unfit licensee."4 ART states that the "Commission 815 Connecticut Avenue, N.W. has determined that on at least twenty-one occasions Infin Washington, D.C. 20006-4078 ity violated indecency standards over the last seven years."5 ART also argues that Infinity "defiantly continues to broad In re: KLUV(FM), Dallas, Texas cast indecent material." In support, ART references three BTCH-940919GI 1994 complaints filed with the Commission against Stern broadcasts: (1) a March 4, 1994 complaint against Transfer of Control of Station License WWKB(AM), Buffalo, New York (the "WWKB Com plaint");6 (2) a March 17, 1994 complaint against BALH-940919GH WBCN(FM), Boston, Massachusetts (the "WBCN Com Assignment of Station License plaint");7 and (3) a September 2, 1994 complaint against WRNO(FM), New Orleans, Louisiana (the "WRNO Com Dear Mr. Sanchez: plaint").8 ART requests that, in view of Infinity's "contin ued disregard for the law and the Commission's enforce designate the We have on file: (1) the above-referenced application to ment measures," the Commission should transfer control of TK Communications, Inc. ("TK") from subject assignment application for hearing. Robert K. Weary, James P. Sunderland and Robert Sunder- Infinity argues that the Commission must dismiss ART's land, et al. to John F. Tenaglia (File No. BTCH-940919GI); petition to deny as procedurally defective for failing to and (2) the above-referenced application to assign supply an affidavit of an individual with "personal knowl KLUV(FM) from TK to Infinity Broadcasting Corporation edge" of the facts contained in the Petition. Infinity also of Dallas ("Infinity") 1 (BALH- 940919GH).2 Also on file is contends that the Commission must dismiss ART's plead a pleading styled "Petition to Deny Application and to ing for being a "strike" pleading, as its primary purpose is Designate Application for a Hearing" filed by Americans to "delay and obstruct the sale of KLUV-FM." In support, for Responsible Television ("ART") and various opposition Infinity attaches an undated, four-page message from and reply pleadings.3 As set forth below, we grant the Rakolta to the ART membership (the "ART Message"). subject applications. The ART Message outlined ART's opposition to the Com Background. ART states that it is a not-for-profit or mission's grant of the assignment of two Maryland stations enable ART to file a ganization founded in Michigan and made up of some to Infinity and requested donations to "400,000 supporters." In asserting standing, ART attaches petition for reconsideration of that decision.9 The ART decision to grant two affidavits to its pleading. Marinall H. Turnage Message also stated that the Commission's ("Turnage"), in an affidavit dated November 1, 1994, states that assignment was wrong in light of Infinity's continued airing of "the pornopgraphic, hate-mongering Howard 1 Infinity, through its parent company and various wholly- Jones, supplies a tape with edited segments of the following owned subsidiaries, is the licensee of KVIL(FM), Dallas, Texas broadcasts: November 17, 1993; December 6, 1993; January 17, and twenty-five other radio stations. We use the term "Infinity" 1994; January 19, 1994; January 24, 1994; January 28, 1994; to refer collectively and individually to parent and sister cor February 10, 1994; February 11, 1994; February 17, 1994; Feb porations as well. ruary 18, 1994; and February 22, 1994. * TK requests that the Commission process both applications 7 The WBCN Complaint, filed by Paul DeFeo, supplies tapes of simultaneously. Stern broadcasts dated February 4, 1994 and March 3, 1994. 3 TK's opposition essentially mirrors the arguments framed by 8 Sheila Potts filed the WRNO Complaint and provides a tape Infinity. Therefore, we will incorporate TK's opposition into of broadcasts from September 21, 1994 and September 22, 1994. Infinity's and refer to the oppositions jointly as the "Infinity" 9 On May 20, 1994, the Commission granted the assignment of response. WPGC(AM/FM), Morningside, Maryland from Cook Inlet Radio 4 ART raises no objection to the above-referenced application Partnership to Infinity (File Nos. BAL-931008GQ, BALH- to transfer control of TK. 931008GR). In separate requests, dated August 1, 1994 and Sep 5 ART alleges that the Commission has issued fines of $1.7 tember 8, 1994, ART requested reconsideration of the million to Infinity for indecent broadcasts occurring on the WPGC(AM/FM) assignment. By letter dated October 6, 1994, Stern program and that Infinity has thus far failed to pay those the Commission staff dismissed ART's requests as untimely. See fines. Letter from Larry D. Eads, Chief, Audio Services Division, Mass 6 The WWKB Complaint, filed under the pseudonym Susan Media Bureau to Ernest T. Sanchez, Esquire. 4517 DA 95-904 Federal Communications Commission Record 10 FCC Red No. 9 Stern Show." Rakolta additionally noted that ART'S pre Although Turnage's affidavit appears to satisfy part of the vious opposition to Infinity's purchase of a California sta North Alabama standard by confirming that Turnage is a tion had "cost Infinity millions" and had "delayed" that member of ART and a Dallas resident, her affidavit fails to acquisition. Infinity, citing Radio Carrollton, 45 R.R.2d establish that she is entitled to standing because it fails to 1273 (1979), states that the ART Message indicates ART's establish that she has personal knowledge of the facts set "purpose in filing petitions against Infinity applications is forth in the Petition. Turnage identifies herself as "one of designed primarily to delay or obstruct Commission ac the signers of the Anti-Howard Stern Petition prepared by tion." [ART] for submission to the Attorney General of the Unit Regarding the merits, Infinity first states that ART has ed States ..." and states that "[a]s one of the signers of "distorted" the factual record and Infinity's record as a [that] petition, I have personal knowledge of the indecency Commission licensee. Specifically, Infinity argues that the violations broadcast on the [Stern] show which form the "sole forfeiture" ever levied against Infinity is a $6,000 basis of the petition to deny the referenced sale." However, forfeiture imposed for a December 1988 broadcast. Other Turnage does not state how the facts in the earlier petition than that forfeiture and four pending "non-final" Notices relate to the instant Petition, nor does she allege that she of Apparent Liability ("NALs") against Infinity for Stern has personal knowledge of the program excerpts submitted program broadcasts, Infinity states that it is "unaware of with the Petition. 13 Furthermore, we cannot ascertain that any notice of apparent liability directed to an Infinity Turnage even reviewed the Petition, as she signed her station during its twenty-one year history as a Commission affidavit on November 1, 1994, three days before the date licensee." Infinity also argues that of the 1994 program appearing on the Petition. Accordingly, we conclude that ming excerpts referenced by ART as evidence of Infinity's Turnage has not established standing for herself and there continued disregard of Commission authority,11 all except fore cannot establish the requisite standing for ART. two have already been considered by the Commission in Rakolta's affidavit is also insufficient, as it does not state other contexts and either found non-actionable or ad that she is a Dallas resident or listener of KLUV(FM). 14 See dressed and disposed of in an NAL. Infinity contends that United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. recent assignment and renewal grants to Infinity indicate 1966). Even if Rakolta had stated that she was a local that the Commission has correctly found Infinity to be a resident, her assertion that the facts are true and correct fully qualified licensee despite the outstanding NAL's12 and "to the best of my knowledge, information and belief is that the remaining two excerpts are non-actionable. inadequate. See Columbia Broadcasting System, 46 FCC 2d Discussion. We find that ART's pleading is procedurally at 905 (affidavits insufficient where verification is not based defective as a petition to deny. Section 309(d)(l) of the upon affiant's personal knowledge). However, despite the Communications Act of 1934, as amended ("Act"), and fact that the Turnage and Rakolta affidavits are facially Section 73.3584 of the Commission's Rules, require that defective, we will treat ART's pleading as an informal petitions to deny be supported by affidavits or declarations objection pursuant to 47 C.F.R. § 73.3587.
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