Before the FEDERAL COMMUNICATIONS COMMISSION Washington DC 20554 In the Matter of ) ) GN Docket No. 13-86 Adopting Egregious Cases Policy ) REPLY COMMENTS OF AMERICAN PUBLIC MEDIA GROUP, MINNESOTA PUBLIC RADIO, SOUTHERN CALIFORNIA PUBLIC RADIO AND CLASSICAL SOUTH FLORIDA Introduction American Public Media Group is the parent entity of Minnesota Public Radio, Southern California Public Radio, American Public Media, and Classical South Florida. Minnesota Public Radio is the largest public radio network in the country with 44 FM stations and 39 FM translator stations, primarily in the Upper Midwest. American Public Media Group is the licensee of WKCP FM in Miami, Florida. Classical South Florida is the licensee of WNPS FM in Fort Myers, Florida and WPBI FM in West Palm Beach, Florida. Southern California Public Radio is the licensee of KLVA FM in Coachella, CA and operates KPCC FM in Pasadena, CA and KUOR FM in Redlands, CA. Minnesota Public Radio, American Public Media Group, American Public Media, Classical South Florida and Southern California Public Radio are collectively referred to as "the APM Group" in these reply comments. All of the APM Group station licensees are non-profit 501 (c) (3) charitable organizations and all of the APM Group stations are operated as public radio stations. Thus, all APM Group stations provide noncommercial educational programs. The weekly curne of all of the APM Group stations combined is almost two million listeners per week. In addition to its broadcast licensee activities, Minnesota Public Radio, under the trade name American Public Media, is the largest station based producer and distributor of non­ commercial educational programming in the country. APM produces and distributes award winning series, including A Prairie Home Companion with Garrison Keillor®, Marketplace®, Splendid Table®, Performance Today® and SymphonyCast®. The weekly audience for these APM-produced and nationally-distributed programs is 17 million listeners. These programs are broadcast on over 900 public radio stations across the country. The commitment of the APM Group to high quality programming is evidenced in the nearly 1000 broadcasting and journalism awards the organizations have won, including seven George Foster Peabody awards, six Robert F Kennedy Journalism awards, and an Alfred I DuPont-Columbia University Gold Baton award. Central to all of the work done at the APM Group are our mission statements. The mission statements of all of the companies in the APM Group are similar: The mission of Classical South Florida is to enrich the minds and nourish the spirit of our community through the art, availability and advocacy of classical music. The mission of Southern California Public Radio is to strengthen the civic and cultural bonds that unite Southern California's diverse communities by providing the highest quality news and information service through radio and other interactive media. We will be a public forum that engages its audiences in an ongoing dialogue and exploration of issues, events and cultures in the region and in the world, seeking to provide greater understanding and new perspectives to the people of these communities and their leaders. The mission of American Public Media and Minnesota Public Radio is to enrich the mind and nourish the spirit, thereby enhancing the lives and expanding the perspectives of our audiences, and assisting them in strengthening their communities. Also, as noted in the National Public Radio Comments, " ... the common thread among public radio producers is a public service mission to offer news, information and cultural programming that is responsive to the needs of the public -locally, regionally and nationally; that constitutes an expression of diversity and excellence; that involves creative risks; and that serves as an alternative to the mass media." The APM Group supports and attempts to carry out a similar mission in all that we do. I. The APM Group fully supports the Comments filed by National Public Radio in these proceedings. National Public Radio's Comments support limiting the Commission's enforcement activities to egregious cases, establishing a more explicit and expansive safe harbor for news and other public affairs reporting, and clarifying the implementation of the Commission's statutory authority. For the reasons further described below, the APM Group is in full agreement with the NPR Comments. II. The "chilling effect" of current enforcement activities. Due to the fear of huge fines, as FCC-licensed broadcasters, we are forced to self-censor and to worry unduly "fleeting utterances" and "live mics." The APM Group consists of 2 news stations, classical music stations and alternative music stations. This chilling effect applies to all genres of stations within the APM Group. This fear is coupled with the reality that in unique circumstances "fleeting utterances" add to the journalistic quality of content. This is especially true in the context of live-news events. The very recent case of a "fleeting utterance" in a broadcast of a presentation by Boston Red Sox slugger David Ortiz following the Boston bombings is an excellent example. In front of thousands oflive fans, Ortiz's emotional response to the Boston bombings was, "This is our [expletive] city and nobody is going to dictate our freedom- stay strong." This example is, in our opinion, not offensive to a majority of Americans. In fact, Ortiz's strong emotional response in the wake of a horrific event that griped the entire country was representative ofthe view of many Americans. In the Ortiz case, the statement was live, just a few days after the event, and unless a quick-witted broadcaster was able to hit the "dump" button in a timely fashion, a fleeting utterance went out on American airways. The then-current Chair of the Commission told broadcasters publically, but uofficially, that they did not have to worry about enforcement actions due to this spur-of-the moment slip. Absent a more formal declaration of the Commission's policy not to bring charges against broadcasters for fleeting utterances, despite the public statements of the Chairman Genachowski, broadcasters are left to wonder - and worry - if they will face legal action and forfeitures for broadcasting this heart-felt statement from Mr Ortiz. The entire circumstance encapsulates how the FCC's current policy on "fleeting utterances" can- and does- have a chilling effect on journalists. III. Effect of pending complaints on license renewals. Under current practice, when an indecency/profanity complaint against a station is filed with the Commission, the Enforcement Bureau puts a "hold" on the station's license. In situations that, unfortunately, are not rare, this practice has unintended and harmful consequences. For example, Minnesota Public Radio was surprised this spring when it did not receive a license renewal for KNOW, its flagship News & Information station in Saint Paul, Minnesota. Upon inquiry by our outside FCC counsel, we learned that in 2010 someone filed a complaint with the Commission about something they purportedly heard on KNOW and because of that complaint the license renewal of KNOW is on hold. As licensee of KNOW, Minnesota Public Radio was never informed ofthis old complaint, and we needed to pay our outside counsel to determine the problem when our other license renewals were granted but this one was not. Per the Enforcement Division, we were finally informed that someone complained that on March 9, 2010 at 8:44PM he/she heard the word "fuck" on KNOW during an excerpt from the drama "Breaking Bad," that was used as part of the interview program Fresh Air with Terry Gross, co-produced by WHYY and National Public Radio. The excerpt included the line, "You flunked me". While the words 3 "flunk" and "fuck" are similar, there has never been a holding by the Commission that the word "flunk" is profane. Clearly, the complainant misheard. But because of the Commission's no-tolerance policy, the complainant was able to single-handedly derail KNOW's license renewal. We believe this sort of outcome is ridiculous. The KNOW license has now been in limbo for three years due to the misinterpretation/hypersensitivity of a listener, the backlog at the Commission, and the Commission's inability and failure to quickly dispense with such complaints. If the Commission's policy were to begin enforcement actions only against egregious complaints, this complaint could have been immediately dismissed and the additional time spent by the Commission staff in putting a hold on the KNOW license could have been alleviated. IV. Limitations of forfeitures based on the egregiousness of the broadcast. Because it does not exist, broadcasters cannot buy insurance to cover FCC fines and forfeitures. As a responsible businesses, broadcasters can (and do) purchase media­ coverage insurance, which provides insurance coverage for litigation related to our programming (i.e. defamation and copyright infringement). As current FCC fines for broadcasting indecent content are so high, and due to our inability to insure against forfeiture, one incident could severely affect our budget, and a series of forfeitures could bankrupt our organizations. If an APM-Group station broadcasts material that is egregiously indecent or profane, that station ought to bear the financial consequences of FCC forfeitures. However, the current FCC policy punishes in exactly the same way minor slips by well-intentioned broadcasts, and broadcasts that willfully ignore the current policy with the broadcast of egregiously indecent and/or profane material. In short, the size of potential fines and the financial risk to reasonable broadcasters for minor slips is out of proportion to the behavior. Thus, the APM Group strongly supports the idea set forth in the NPR comments: to reduce uncertainty and the corresponding chilling effect, the Commission ought to clarify the statutory forfeiture regimen. Accordingly, as stated in the NPR comments, " ... the Commission should reserve the $325,000 statutory maximum amount only for the most egregious, intentional, and repeated instances of obscene or indecent speech used to pander, shock, or titillate.