Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C

Home , Daniel Snyder, Fleeting expletive, Washington City Paper, Wetback (slur)

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

In the Matter of ) ) Application for Renewal of Broadcast Station ) FCC File No. BRH-20110601ACB License of ) ) (Facility ID No. 16819) Red Zebra Broadcasting Licensee, LLC ) Station WWXX(FM) ) Buckland, VA )

To: Secretary, Federal Communications Commission Attn: Chief, Audio Division, Media Bureau

RED ZEBRA BROADCASTING LICENSEE, LLC’S CONSOLIDATED RESPONSE TO INFORMAL OBJECTIONS

Andrew G. McBride Kathleen A. Kirby Gregory L. Masters Ari S. Meltzer Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 TEL: 202.719.7000 FAX: 202.719.7049

Counsel for Red Zebra Broadcasting Licensee, LLC

October 17, 2014

EXECUTIVE SUMMARY

The Objections filed against the license renewal application of radio station WWXX(FM)

(the “Station”), held by Red Zebra Broadcasting Licensee, LLC (“Red Zebra”), are meritless. In

fact, the Objections amount to nothing more than a frivolous attempt to goad the Commission

into banning the team name of Washington, D.C.’s NFL franchise from the nation’s airwaves.

While there is, in fact, a public debate over the use of the name “Redskins” in association with

the team, the Commission cannot appropriately serve as the arbiter of that dispute. No government agency could ban the use of the word “Redskins” any more than it could ban the objectors’ viewpoint that the word is offensive and should not be used. To designate the matter for hearing or strip the Station of its license would be arbitrary and capricious, inconsistent with

Sections 309(k) and 326 of the Communications Act and long standing Commission precedent, and violative of the First and Fifth Amendments.

The Commission’s task is not to pass judgment on the propriety of the name of

Washington’s professional football team. Rather, it is to apply Section 309(k) of the

Communications Act, the statutory standard for the Commission’s evaluation of a license renewal application. Section 309(k) requires the Commission to grant a license renewal application if: (i) the station has served the public interest, convenience, and necessity; (ii) there have been no serious violations of the Communications Act or Commission rules; and (iii) there have been no other violations by the licensee of the Act or Commission rules which, taken together, constitute a pattern of abuse.

The objectors fail to make a prima facie case that the Station’s renewal application falls short of satisfying any prong of Section 309(k). In fact, it is clear from the Objections themselves and the press statements that accompanied their release that they were not filed in

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good faith and are a crass misuse of the license renewal process as part of a broader strategy to extort broadcasters to stop using the term “Redskins.” The Commission has never interpreted

Section 309(k)’s “public interest, convenience, and necessity” standard as conferring the power to censor broadcast content. In scores of prior cases recognizing the First Amendment and

Section 326’s express prohibition of radio censorship, the Commission has refused to take adverse action on a license renewal application based upon subjective determinations of appropriate content. While the objectors suggest that the Station’s use of the Redskins’ team name equates to “obscenity,” “indecency,” or “profanity,” the name plainly fits within none of these narrowly circumscribed definitions. And even if the Commission regulated so-called “hate speech” (which it does not), the broadcast of the Redskins’ team name cannot be fit into that category under any plausible description of that term.

The objectors’ character attacks on Mr. Daniel Snyder, majority owner of the Washington

Redskins and managing member of Red Zebra’s parent company, are shameful and baseless. For the most part, they are attempts to end-run the objectors’ sheer lack of a case against the

Station’s renewal under the Communications Act or any FCC regulation or precedent. The assertions that the objectors cite as “additional factors” with respect to Mr. Snyder’s character are false and frivolous and, in any case, are far outside the Commission’s well-defined character policy. Additionally, the objectors’ character attacks ignore Mr. Snyder’s immeasurable contributions to the Washington, D.C. community and his outreach to Native Americans.

Beyond applying the Communications Act and its own precedent, the Commission must also be mindful of the serious constitutional problems that are inherent in the Objections. The objectors propose a limitless expansion of the government’s censorial powers. Such viewpoint- based regulation is subject to strict scrutiny under the First Amendment and is almost universally

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condemned by the Supreme Court. The objectors’ requested relief also violates the Due Process

Clause of the Fifth Amendment, which eschews vague, arbitrary regulations and requires

sufficient notice of what is proscribed.

There is no hearing to be held, no further pleading that should be considered, and no

other reason to delay the grant of the Station’s license renewal application. John F. Banzhaf III,

the individual responsible for orchestrating the Objections, has publicly threatened to attack the

renewals of, and even extract settlements from, stations throughout the country whose broadcasts

accurately use the Washington Redskins’ full name. The Commission should expeditiously

grant the Station’s renewal application and signal that it will not be a party to Banzhaf’s attempt to abuse the licensing process to gain leverage to silence accurate, truthful and fully-protected

speech on the airwaves.

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TABLE OF CONTENTS

EXECUTIVE SUMMARY ...... ii INTRODUCTION ...... 2 I. THE OBJECTORS FAIL TO SHOW THAT THE STATION’S LICENSE SHOULD NOT BE RENEWED UNDER SECTION 309(K)...... 7 A. The Objectors Fail to Show That Broadcasting the Redskins’ Team Name Contravenes the Public Interest, Convenience, and Necessity Standard in Section 309(k)...... 8 B. The Objectors Fail to Demonstrate That the Station Has Violated Any Rule or Engaged in a Pattern of Abuse...... 13 1. Broadcasting the Redskins’ Team Name Does Not Violate the Commission’s Rules Governing Obscenity or Indecency...... 14 2. Broadcasting the Redskins’ Team Name Does Not Fall Within the FCC’s Narrow Authority To Regulate Profanity...... 16 3. The Objectors’ “Hate Speech” Allegation Lacks Both Legal and Factual Basis...... 16 II. THE OBJECTORS FAIL TO RAISE A LEGITIMATE QUESTION REGARDING RED ZEBRA’S QUALIFICATIONS TO HOLD AN FCC LICENSE...... 19 III. THE OBJECTORS FAIL TO MAKE A PRIMA FACIE CASE THAT THE STATION’S RENEWAL APPLICATION SHOULD BE DESIGNATED FOR A HEARING...... 24 IV. REVOKING THE STATION’S LICENSE FOR BROADCASTING THE TERM REDSKINS ON THE RADIO WOULD BE UNLAWFUL...... 25 A. Revoking the Station’s License for Broadcasting the Term Redskins Would Violate the First Amendment...... 25 B. Revoking the Station’s License for Broadcasting the Term Redskins Would Violate The Fifth Amendment...... 29 C. Revoking the Station’s License for Broadcasting the Term Redskins Would Be Arbitrary and Capricious...... 32 V. CONCLUSION ...... 33

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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

To: Secretary, Federal Communications Commission Attn: Chief, Audio Division, Media Bureau

RED ZEBRA BROADCASTING LICENSEE, LLC’S CONSOLIDATED RESPONSE TO INFORMAL OBJECTIONS

Red Zebra Broadcasting Licensee, LLC (“Red Zebra”), the licensee of radio station

WWXX(FM), Buckland, VA (Facility ID No. 16819) (“WWXX” or “the Station”),1 by its

attorneys, hereby responds to the informal objections filed by John F. Banzhaf III (“Banzhaf”) on

September 2, 2014 (the “Banzhaf Objection” or “Banzhaf Obj.”) and by Jay Winter Nightwolf

(“Nightwolf”), Louis Ramon Grimaldi (“Grimaldi”), and Verona Iriarte (“Iriarte”) on October

13, 2014 (together, the “Nightwolf Objections,” and collectively with the Banzhaf Objection, the

“Objections”)2 against the Station’s license renewal application. Should the Commission choose to entertain the Objections,3 its job is straightforward: to determine, on the merits, whether Red

1 Mr. Daniel Snyder, majority owner of the Washington Redskins, holds a controlling interest in the parent company of Red Zebra, the licensee. 2 Because the three Nightwolf Objections are “cookie cutter” adoptions of the Banzhaf Objection by reference, this response focuses on the substance of the Banzhaf Objection. 3 The four pleadings, each identically styled as a “Preliminary* Formal Petition to Deny,” are all procedurally defective. Neither the Communications Act nor the Commission’s rules contemplate “preliminary” petitions to deny, and the pleadings—however “preliminary”—were filed more than three years after the requisite deadline. Section 73.3516(e) of the Commission’s -1-

Zebra has met the standard for renewal of the Station’s license under Section 309(k) of the

Communications Act,4 not to pass judgment on the propriety of the name of the NFL franchise.

INTRODUCTION

A few key points bear emphasis at the outset. First, this is a license renewal proceeding

that must be decided on the merits under the framework established by Congress in 47 U.S.C. §

309. That framework is well-defined, and has been consistently applied by the Commission for

decades in numerous precedents.5 Under that analysis, the objectors bear the burden of establishing a prima facie case that the Station’s license should not be renewed. In particular,

Section 309(k) provides three very well defined categories that could lead to a license not being

renewed: (i) failure to serve the public interest; (ii) serious violations of Title III of the

Rules states that a petition to deny must be filed “by the end of the first day of the last calendar month of the expiring license term.” 47 C.F.R. § 73.3516(e). That time passed more than three years ago (September 1, 2011). Accordingly, the Commission may return the petitions without consideration. See 47 C.F.R. § 73.3586(e) (“Untimely Petitions to Deny . . . are subject to return by the FCC’s staff without consideration.”). Further, Banzhaf did not serve a copy of his pleading upon the licensee, as required by Section 309(d) of the Communications Act. See 47 U.S.C. § 309(d). Should the Commission decide to treat the pleadings as informal objections under Section 73.3587 of the rules, they should be rejected on the merits for the reasons stated herein. 4 47 U.S.C. § 309(k). 5 Red Zebra’s Response will demonstrate that the Station’s broadcast of the word “Redskins” in connection with Washington’s NFL team is not a violation of any of the Commission’s rules, does not contravene the public interest, and is truthful, fully-protected speech under the First Amendment. Red Zebra will also respond, where appropriate, to some of Banzhaf’s more egregious misstatements of fact regarding the history, meaning, and public acceptance of the team name “Washington Redskins.” For example, contrary to the notion that the word “redskins” originated as a racial epithet, the authoritative linguistic survey by a senior linguist at the Smithsonian National Museum of Natural History has concluded that “the actual origin of the word is entirely benign and reflects more positive aspects of relations between Indians and whites.” See Ives Goddard, “I am a Red-skin”: The Adoption of a Native American Expression (1769-1826), Native American Studies, 19:2 (2005). The failure to respond to every one of Banzhaf’s often scattershot and unsupported factual assertions should not be taken as assent, but rather as a recognition of their complete irrelevance to this license renewal proceeding. -2-

Communications Act;6 or (iii) other statutory or regulatory violations that “taken together, would constitute a pattern of abuse.” The objectors implicitly concede that the Station’s use of the word “Redskins” to report on the NFL franchise in Washington, D.C. does not fit into any of these established categories. Instead, they ask the FCC to break new legal ground in both content and viewpoint regulation of broadcast stations. See, e.g., Banzhaf Obj. at 3 (calling for the FCC to “legally change its viewpoints” on the public interest standard); id. at 5 (inviting the

Commission to “expand the definition of words in its statute beyond their normally understood meanings” in the context of indecency and obscenity); id. at 11 (advocating a new definition from Dictionary.com for the legal term of art “profanity”): id. at 12-13 (asking the FCC to hold a hearing to adopt a new form of content regulation for “hate speech”). The Commission should decline the objectors’ unprecedented requests to make new law for the purpose of specifically targeting this Station’s license. Instead, the Commission should follow its settled practice of refusing to interfere with a licensee’s editorial judgment regarding programming content when considering a license renewal application.

Second, this is not a trademark proceeding. Banzhaf’s suggestion that the Commission should be bound—or even influenced—by the separate and distinct proceedings involving registration of the term “Redskins” before the Trademark Trial and Appeal Board is disingenuous.7 Whatever discretionary standard may apply for granting or denying a trademark

6 47 U.S.C. § 301 et. seq. 7 See Blackhorse v. Pro Football, Inc., 111 U.S.P.Q.2d 1080, 2014 WL 2757516 (2014). By a 2- 1 majority, a divided panel of the Trademark Trial and Appeal Board (“TTAB”) found that “a substantial composite” of American Indians found the word “Redskins” to be “disparaging” at the time the trademark applications were filed. The dissenting administrative judge in the trademark proceeding found that the evidence of disparagement at the time the marks were registered was “a house of cards that collapses upon examination.” Id. at *42. Many legal commentators are also of the view that the TTAB ruling is legally suspect. See, e.g., Jonathan Turley, Opinion, The Patent Office Goes Out of Bounds In Redskins Trademark Case, Wash. -3-

under the Lanham Act, it has no place in the Commission’s evaluation of a station licensee’s

performance under Section 309(k) of the Communications Act. As the FCC has recognized in

multiple contexts, licensees have a First Amendment right to report the news, including sports

news, and to use the words of their choice, even where those words may offend some, or even

many.8 That some of a broadcast station’s listeners may find a word or phrase offensive is not a justification for the government to ban the use of that word or phrase. The trademark ruling in no way suggests that broadcasters’ accurate use of a professional football team’s chosen name or symbol must or could be suppressed under the very different public interest standard applied to a licensee’s overall programming mix.

Third, the constitutional implications of Banzhaf’s objection are mind-boggling because he proposes a limitless expansion of the government’s censorial powers. There is, in fact, a public debate over the use of the name “Redskins” in association with the Washington, D.C.

NFL franchise. But the Commission cannot appropriately serve as the arbiter of that dispute.

Although the objectors and a small minority of Americans occupy one side of that discussion, the

Post, June 20, 2014, available at http://wapo.st/1pAro4K (noting “an obvious problem when the sanctioning of free exercise of religion or speech becomes a matter of discretionary agency action”). In fact, a federal district court previously overruled the TTAB’s cancellation of the Washington Redskins trademarks on a very similar record. Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003) (Kollar-Ketelly, J.), aff’d on other grounds, 415 F.3d 44 (D.C. Cir. 2005). 8 See, e.g., Mr. John Oldfield, 22 FCC Rcd. 18638 (MB 2007) (“[B]ecause journalistic or editorial discretion in the presentation of news and public information is the core concept of the First Amendment’s Free Press guarantee, the Commission has limited authority to interfere with a licensee’s selection and presentation of news and editorial programming.”); Chicago Media Action and Milwaukee Public Interest Media Coalition, 22 FCC Rcd. 10877 (MB 2007) (same) (subsequent history omitted); American Broadcasting Companies, Inc., 83 FCC 2d 302, 305 (1980) (concluding that “the Commission will not review the licensee’s news judgments”); cf. Peter Branton, 6 FCC Rcd. 610 (1991) (recognizing an exception to indecency enforcement for bona fide news reports). -4-

other side must also have a voice.9 There are many fans and Native Americans who do not

perceive the name as an epithet or even a racial descriptor. They view it as part of the phrase

“Washington Redskins,” just as Notre Dame football fans regard the phrase “Fighting Irish” as a

reference to the football team, not to the ethnicity or demeanor of any class of human beings.

That a few members of the media now voluntarily decline to use the word “Redskins” in

reporting on the team only highlights the political nature of the debate. The need for full First

Amendment protection is underscored by the fact that use of the word is now freighted with

political significance by the very opposition that the objectors typify.

No governmental agency—state or federal—could ban the use of the word “Redskins”

any more than it could ban the objectors’ viewpoint that the word is offensive and should not be

used. The fact that some speech offends, and powerfully so—e.g., the offense military personnel and veterans take at the burning of the American Flag—cannot justify a ban on that form of expression.10 Nor can substitutes replace the power of a word whose use itself conveys a

message in a matter of public interest.11 As Justice Louis Brandeis famously wrote, the answer

9 This kind of forbidden censorship under the First Amendment is known as a “heckler’s veto.” See Reno v. ACLU, 521 U.S. 844, 880 (1997) (finding unconstitutional a law that would “confer broad powers of censorship, in the form of a ‘heckler’s veto,’ upon any opponent of indecent speech”); NAACP Legal Def. & Educ. Fund, Inc. v. Devine, 727 F.2d 1247, 1261–62 (D.C. Cir. 1984) (accounting for intense hostility in regulation of speech would be to “allow the intolerance (and threats) of a vocal minority (or even the majority) to determine who shall and who shall not speak”), rev’d on other grounds sub nom. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985). 10 See Texas v. Johnson, 491 U.S. 397, 420 (1989) (holding that “the State’s interest in preserving the flag as a symbol of nationhood and national unity [does not] justify his criminal conviction for engaging in political expression”). 11 Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781, 791 (1988) (“The government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.”). -5-

to speech that some may view as objectionable “is more speech, not enforced silence.”12 For example, while Chairman Wheeler has expressed certain personal views regarding the name of the team, he has been careful to characterize those views as “personal” and to make clear that the

Station’s renewal application will be dealt with on the merits under existing Commission precedent.13

Sadly, the Objections are not filed for their legal merit. As Banzhaf has admitted in press

interviews, he intends to use the broadcast license renewal process to extort stations not to use

the word “Redskins”:

The FCC moves like molasses . . . . Meanwhile the stations do not have their license renewed and that may have consequences for them. . . . They can continue to broadcast . . . but they will broadcast without the certainty and financial protections and other advantages of having a license good for five years or more.14

What is truly disturbing is that a law professor would waste the Commission’s resources

with a frivolous attempt to convert the broadcast license renewal process into a vehicle for

silencing those who disagree with him. The Commission should have none of this. It should

reject these legally and factually baseless Objections and grant the Station’s license renewal

application without further pleadings or proceedings.

12 Whitney v. California, 272 U.S. 357, 377 (1927) (Brandeis, J., concurring). 13 See Tom Wheeler, Letter to the Editor, NFL Team Name Dispute to Be Decided Based on Law, L.A. Times, Oct. 5, 2014, available at lat.ms/1nd6xpD (clarifying that his “personal views are just that — personal — and should not be perceived as an indication on how the commission will or won’t act”). 14 Alex Ben Block, How the Washington Redskins Name Debate Could Ensnare L.A. TV Stations, The Hollywood Reporter, Oct. 8, 2014, available at http://bit.ly/1vdNfDw. -6-

I. THE OBJECTORS FAIL TO SHOW THAT THE STATION’S LICENSE SHOULD NOT BE RENEWED UNDER SECTION 309(K).

Congress has set forth definitive standards that the Commission must use when

evaluating a license renewal application. Section 309(k) of the Communications Act requires the

Commission to grant the application if: (i) the station has served the public interest, convenience,

and necessity; (ii) there have been no serious violations of the Communications Act or

Commission rules; and (iii) there have been no other violations by the licensee of the Act or

Commission rules which, taken together, constitute a pattern of abuse.15 The objectors fail even

to cite Section 309(k) in their Objections. Nor do they come remotely close to demonstrating

that Red Zebra has failed to satisfy any prong of Section 309(k). The Objections are nothing

more than an attempt to goad the Commission into stepping outside its statutory mandate to ban

the team name of the Washington Redskins from the nation’s airwaves.

In particular, Banzhaf repeatedly makes a single claim: that the Station should lose its

license because it repeatedly broadcast the term “Redskins” to identify a professional football

team whose name has been the Washington Redskins since 1933. In fact, the Redskins’ team

name signifies and incorporates the history of one of the most storied professional sports

franchises in the nation. The team has played in 11 NFL Championship Games and won five

World Championships. Millions of alumni, supporters, and even casual football fans have come

to associate “Redskins” with more than eight decades of professional football in Washington,

D.C. The objectors’ claim that the Station should have its license revoked because it accurately

refers to this team by its chosen name is meritless.

15 47 U.S.C. § 309(k). -7-

A. The Objectors Fail to Show That Broadcasting the Redskins’ Team Name Contravenes the Public Interest, Convenience, and Necessity Standard in Section 309(k).

The Objections invite the Commission to undertake a perilous mission. They ask the

Commission to determine whether the use of a particular word (which has never been prohibited

by the Commission) renders the Station’s broadcast content so unsuitable under the “public

interest” standard that its license should be revoked. Section 309(k) provides no basis for that

unprecedented result.

The Commission never has construed Section 309(k)’s “public interest” standard as

conferring the power to censor. As the Commission has recognized, its “role in overseeing

programming content is very limited.”16 That limitation is expressly set forth in Section 326 of

the Communications Act, which provides: “Nothing in this chapter shall be understood or

construed to give the Commission the power of censorship over the radio communications or

signals transmitted by any radio station, and no regulation or condition shall be promulgated or

fixed by the Commission which shall interfere with the right of free speech by means of radio

communication.” 47 U.S.C. § 326. Obviously, the general public interest standard cannot be

used to trump the specific limitations in Section 326. Thus, the FCC consistently has deferred to

broadcast licensees’ editorial discretion because “[t]he First Amendment and section 326 of the

Act prohibit the Commission from censoring program material and from interfering with broadcasters’ freedom of expression.”17 Indeed, the Commission has emphasized that it cannot

grant the type of relief that the objectors request:

The Commission will not take adverse action on a license renewal application based upon the subjective determination of a listener or group of listeners as to

16 Fox Television Stations, 20 FCC Rcd. 4800, 4801 (2005). 17 Mr. Jim Ward, 22 FCC Rcd. 16167, 16169 (2007). -8-

what constitutes appropriate programming. Licensees have broad discretion— based on their right to free speech—to choose, in good faith, the programming they believe serves the needs and interests of their communities. This holds true even if the material broadcast is insulting to a particular minority or ethnic group in a station’s community. Indeed, as we have held in earlier decisions, “if there is to be free speech, it must be free for speech that we abhor and hate as well as for speech that we find tolerable and congenial.”18

Despite the limitations of Section 326 and substantial FCC precedent directly contrary to his position, Banzhaf urges the Commission to adopt his expansive reading of the “public interest” standard on the theory that whatever the Commission does will receive Chevron deference. Banzhaf Obj. at 3. Not so. It is well established that agencies do not receive

Chevron deference where, as here, their interpretations “create ‘serious constitutional difficulties.’”19 Interpreting Section 309(k)’s “public interest” standard as conferring the power

to censor the term Redskins would not be entitled to deference because it would be fraught with serious constitutional difficulties.20

Nor do any of the cases cited by Banzhaf support the proposition that the “public

interest” standard can be converted into a roving mandate for content regulation. Banzhaf’s

18 Citicasters Licenses, L.P., 22 FCC Rcd. 19324, 19331 (2007) (footnotes and citations omitted); see also Greater Boston Radio, Inc., 19 FCC Rcd. at 13064-65 (rejecting complaints alleging that station should be subject to enforcement action due to talk show host’s statements that “advocated dropping bombs in the Middle East to kill Muslims”); Anti-Defamation League of B’nai B’rith, 4 FCC 2d 190, 191 (1966) (denying Petition to Deny alleging that station aired anti-Semitic material, stating that “[t]he issue presented here is not whether the broadcasts in question were proper, or were false and defamatory, or were anti-Semitic,” because those “are not legal issues that are properly before the Commission,” and that any other result would have the agency “becom[e] the censor of broadcasting, which it is forbidden to do”), aff’d sub nom. Anti-Defamation League of B’nai B’rith v. FCC, 403 F.2d 169 (D.C. Cir. 1968), cert. denied, 394 U.S. 930 (1969). 19 AFL-CIO v. FEC, 333 F.3d 168, 175 (D.C. Cir. 2003) (internal quotation omitted); see also Chamber of Commerce v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995) (“We are obliged to construe the statute to avoid constitutional difficulties if such a construction is not plainly contrary to the intent of Congress. Accordingly, the Commission is not entitled to Chevron deference with regard to its interpretation of the statute.”). 20 See infra Parts IV.A–B. -9-

reliance on FCC v. Fox Television Stations, Inc.21 reflects a complete misunderstanding of the

indecency paradigm and its application to the underlying proceeding in Fox II. Banzhaf’s claim that in Fox II the Supreme Court endorsed a redefinition of “indecency” by the FCC is completely inaccurate. His contention that the word “f**k” in the broadcasts at issue “neither depicted nor described sexual activities,” is nonsense. Id. To the contrary, in the Golden Globes

Order, the Commission justified sanctioning broadcast of the word “f**k”—not by abandoning its narrow definition of indecent content—but rather by determining that the word f**k is “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language.”

Therefore, the FCC held that “any use of that word or a variation, in any context, inherently has a sexual connotation.”22 The Commission recognized there, as it must here, that “the First

Amendment is a critical constitutional limitation that demands that, in such determinations, we

proceed cautiously and with appropriate restraint.”23 Accordingly, to suggest that Fox II

supports an expansion of the “public interest” outside of vulgar reference to sexual or excretory organs or functions is absurd.

Banzhaf similarly attempts to twist the reasoning and result in Yale Broadcasting v.

FCC,24 which has not been followed in decades, to his own liking. In Yale Broadcasting, the

Commission issued a public notice regarding drug oriented music in which it clarified that

licensees must make “reasonable efforts” to determine the meaning of song lyrics before broadcasting the music. A subsequent Memorandum Opinion and Order clarified that: (1) the

21 132 S. Ct. 2307 (2012) (“Fox II”). 22 Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, Memorandum Opinion and Order, 19 FCC Rcd. 4975, 4978-79 (2004) (“Golden Globes Order”) (emphasis added). 23 Id. at 4977. 24 478 F.2d 594 (D.C. Cir. 1973). -10-

Commission was not banning “drug oriented” records from the public airwaves, (2) no reprisals

would be taken against stations that played “drug oriented” music, but (3) it was still necessary

for a station to “know” the content of records played and make a “judgment” regarding the

wisdom of playing such records. The D.C. Circuit decision affirming the Commission’s order is

entirely consistent with the public interest standard that the Commission unfailingly has applied:

the government imposed no content ban and underscored only that a broadcast licensee has a

responsibility to assess whatever programming it chooses to broadcast.25 Moreover, the

Commission emphasized that it reviews “whether a licensee’s programming efforts, on an

overall basis, have been in the public interest.”26

The objectors make no attempt to show that the overall programming of the Station does not serve the public interest, nor could they. WWXX, an ESPN station, has as its tagline “Every

Team, Every Sport, Every Day.” The Station does much more than cover the Washington

Redskins. It has play-by-play and shoulder programming devoted to college football, college basketball (men’s and women’s), Major League Baseball, the National Basketball Association, professional golf, and many programs dedicated to a discussion of all sports, including nationally syndicated programming such as the “Mike and Mike” show and original local programming such as “The Drive with Chris Cooley and Steve Czaban” and “The

Tony Kornheiser Show.” WWXX also broadcasts local public affairs programming between 6-7 a.m. each Sunday morning.

Equally misguided is Banzhaf’s reliance on the Office of Communication of the United

Church of Christ v. FCC (“UCC”) line of cases to suggest that a license renewal application

25 Licensee Responsibility to Review Records Before Their Broadcast, Memorandum Opinion and Order, 31 FCC 2d 377, 380 (1971). 26 Id. at 379 (emphasis added). -11-

could appropriately be denied on the basis of allegations of racism.27 In the underlying case,

appellants challenged the Commission’s grant of a short term Mississippi television station

renewal because, they alleged, the station “provided a disproportionate amount of commercials

and entertainment and did not give a fair and balanced presentation of controversial issues,

especially those concerning Negroes.”28 The case involved the now defunct “fairness doctrine”

and the allegation was that the station had violated that doctrine by not presenting sufficient

coverage of the African American community and its concerns. The D.C. Circuit held that it was

improper under Section 309(e) for the agency to grant a probationary renewal rather than set an evidentiary hearing and remanded the case for such a hearing.29 On remand, the examiner found

that the license should be renewed, and appellants sought review of that decision. The question

of whether commenters on the station referred to “Negroes,” however, was considered only in

the context of whether the examiner applied the proper burden of proof when evaluating

compliance with the now-abolished fairness doctrine. Neither the FCC’s action nor the D.C.

Circuit opinion in UCC endorsed the kind of untethered “public interest” review of broadcast

content that Banzhaf advocates here.30

Notwithstanding Banzhaf’s attempt to make the UCC cases seem broader than they

actually were, this line of cases did not authorize the Commission to make sweeping

27 Office of Commc’n of the United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966) (“UCC I”); Office of Commc’n of the United Church of Christ v. FCC, 425 F.2d 543 (D.C. Cir. 1969) (“UCC II”). 28 UCC I, 359 F.2d at 999. 29 Id. at 1007. 30 See UCC II, 425 F.2d at 547 (“It is not our function to determine whether this would have supported a finding that the licensee had violated the Fairness Doctrine but the Examiner’s erroneous concept of the burden of proof shows a failure to grasp the distinction between ‘allegations’ and testimonial evidence, and prevented the development of a satisfactory record.”). -12-

determinations about whether or not a particular type of speech is acceptable for broadcast radio.

It is also worth noting that the Commission abandoned the “fairness doctrine,” largely on First

Amendment grounds.31 Thus, cases decided under that doctrine are no longer good law in any

license renewal proceeding.

Banzhaf also mischaracterizes Stone v. FCC32 by implying, yet again, that the

Commission passed judgment on broadcast content in the underlying license renewal proceeding.

Yet Stone did not involve speech at all. At issue were the station’s employment policies and

practices.33 The only similarity between Stone and this proceeding is that both involve a

challenge to a license renewal where the challenger raised the issue of race. The employment

policies at issue in Stone did not raise the same First Amendment concerns as Banzhaf’s proposed ban of content he deems offensive.

At bottom, the objectors lack any support for their contention that the Commission can use Section 309(k)’s amorphous “public interest” standard to censor broadcast content it may deem offensive. Their position conflicts with the Communications Act itself and mountains of

FCC and judicial precedent. The Commission should faithfully apply its well-established precedent holding that Section 309(k) does not confer the power to censor. Therefore, the

Objections should be denied.

B. The Objectors Fail to Demonstrate That the Station Has Violated Any Rule or Engaged in a Pattern of Abuse.

Nor do the objectors make even a colorable argument that the Station’s license renewal

should be denied for violations of the Act or the Commission’s rules. Banzhaf seems to suggest

31 Syracuse Peace Council, 2 FCC Rcd. 5043, 5043 (1987). 32 466 F.2d 316 (D.C. Cir. 1972). 33 Id. at 320. -13-

that broadcasting the name “Redskins” violates the law governing obscenity, indecency, and profanity, or even constitutes “hate speech.” Each of these arguments is meritless.

1. Broadcasting the Redskins’ Team Name Does Not Violate the Commission’s Rules Governing Obscenity or Indecency.

Using the Redskins’ name on broadcast radio is neither obscene nor indecent. Material is

obscene only when, “to the average person, applying contemporary community standards, the

dominant theme of the material taken as a whole appeals to prurient interest.”34 Applying this

standard, the Commission has found that, to be obscene, speech must satisfy a three-prong test:

“(1) an average person, applying contemporary community standards, must find that the

material, as a whole, appeals to the prurient interest; (2) the material must depict or describe, in a

patently offensive way, sexual conduct specifically defined by applicable law; and (3) the

material, taken as a whole, must lack serious literary, artistic, political, or scientific value.”35

Unsurprisingly, the objectors fail to allege that broadcasting the Redskins’ name meets any one of these prongs. The Redskins’ name does not appeal to the prurient interest; it does not describe sexual conduct in any way (much less in a “patently offensive way”); and the name and team symbol have both artistic and political value. Banzhaf’s only support for his obscenity claim is a letter from several “longtime participants in the FCC regulatory process” analogizing the use of “racial epithets” to “obscene pornographic language.” See Banzhaf Obj. at 5-6.

However, nothing in that letter or Banzhaf’s Objection suggests that the use of the Redskins’

34 Roth v. United States, 354 U.S. 476 (1957). 35 See New Indecency Standards to Be Applied to All Broadcast and Amateur Radio Licenses, Public Notice, 2 FCC Rcd. 2726, 2727 (1987) (citing Miller v. California, 413 U.S. 15 (1973)). -14-

name actually constitutes “obscene pornographic language.”36 Banzhaf fails to establish a prima facie case that broadcasting the name Redskins is obscene.

Banzhaf also fails to make out a prima facie case that using the word Redskins on the radio is indecent. Indecent language “is intimately connected with the exposure of children to

language that describes, in terms patently offensive as measured by contemporary community

standards for the broadcast medium, sexual or excretory activities and organs, at times of the day

when there is a reasonable risk that children may be in the audience.”37 Under the Commission’s precedent, “the material alleged to be indecent must fall within the subject matter scope of our indecency definition - that is, the material must describe or depict sexual or excretory organs or activities” and “the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.”38 Banzhaf does not allege, nor could he, that the use of the Redskins’ name “describe[s] or depict[s] sexual or excretory organs or activities” in any way.39 His indecency and obscenity arguments are meritless.

36 See, e.g., FCC v. Pacifica Found., 438 U.S. 726, 746 (1978) (“Pacifica”) (“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it.”); Interactive Digital Software Ass’n v. St. Louis Cnty., Missouri, 329 F.3d 954, 958 (8th Cir. 2003) (“Simply put, depictions of violence cannot fall within the legal definition of obscenity for either minors or adults.”); Application of WGBH Educ. Found. for Renewal of License for Noncommercial Educ. Station WGBH-TV, Boston, Mass., 69 FCC 2d 1250 (1978) (declining to define content as obscene where petitioner made “no effort to show that any of the programs about which it complains were obscene within the legal definition of the term”). 37 See Pacifica, 438 U.S. at 731 (1978). 38 Industry Guidance on the Comm’ns Case Law Interpreting 18 USC §1464 and Enforcement Policies Regarding Broad. Indecency, 16 FCC Rcd. 7999, 8002 (2001) (internal citations omitted) (emphasis in original). 39 See, e.g., Complaints By Parents Television Council Against Various Broad. Licensees, 20 FCC Rcd. 1920, 1923-1927 (2005) (finding no indecency where programs did not depict or discuss sexual or excretory organs or activities). -15-

2. Broadcasting the Redskins’ Team Name Does Not Fall Within the FCC’s Narrow Authority To Regulate Profanity.

Neither can the objectors show that using the Redskins’ team name on the radio violates the Commission’s profanity rules. The Commission defines “profane” speech to include “vulgar

and coarse language so grossly offensive to members of the public who actually hear it as to

amount to a nuisance.”40 However, the Commission has only regulated profane speech that is

“limited to the universe of words that are sexual or excretory in nature or are derived from such

terms.”41 Although “additional words, such as language conveying racial or religious epithets,

are considered offensive by most Americans, we [the FCC] intend to avoid extending the bounds

of profanity to reach such language given constitutional considerations.”42 As we have explained, the term Redskins is not “sexual or excretory in nature.” There is no basis for concluding that the Station has violated the Commission’s profanity rules by using the term

Redskins on the radio.

3. The Objectors’ “Hate Speech” Allegation Lacks Both Legal and Factual Basis.

The objectors’ claim that broadcasting the Redskins’ name “constitutes hate speech and

may cause hate crimes against Indians” also provides no basis for revoking the Station’s license.

Banzhaf Obj. at 12-15. The Commission has no doctrine, policy, or precedent regarding alleged

“hate speech.”43 Because “the First Amendment and Section 326 of the Act forbid [the

Commission] from censoring subject matter and opinions relating to religious beliefs, race, or

40 See, e.g., Golden Globes Order, 19 FCC Rcd. at 4981 (2004). 41 Complaints Regarding Various Television Broadcasts Between February 2, 2002 & March 8, 2005, 21 FCC Rcd. 2664, 2669 (2006). 42 Id. 43 In January 2009, the National Hispanic Media Coalition filed a petition urging the Commission to initiate an inquiry into the use of “hate speech” in the media. The Commission has taken no action on this petition. -16-

national background, no matter how offensive they may be,”44 the Commission has refrained from censoring the use of even the most commonly understood racial slurs.45 Thus, there is no

basis for revoking a license for broadcasting a purported racial slur.

In any event, use of the term Redskins could not plausibly be described as hate speech.

In Brandenburg v. Ohio, the Supreme Court held that speech only becomes illegal activity when

“directed to inciting or producing imminent lawless action and is likely to incite or produce such

action.”46 In the rare instances where the Commission has encountered allegations that broadcast

speech constitutes a “clear and present danger” under Brandenburg, it has acknowledged that

“Commission action in response to an allegation that a broadcast should be characterized as an

‘incitement’ to violence or illegal action meeting the ‘clear and present danger’ test is limited to

situations where a local court of competent jurisdiction has made such a determination.”47

Banzhaf’s assertion that broadcasting the name Redskins “has and does lead to, contribute to,

and/or exacerbate violence against Indians either directly or indirectly” comes nowhere close to

meeting this standard. The objectors fail to cite to any instance in which a court of competent

jurisdiction has determined that the use of the Redskins’ name in connection with Washington,

44 Fox Television Stations Inc., 8 FCC Rcd. 5341 (1993) (finding that “both the First Amendment and Section 326 of the Act forbid [the FCC] from censoring subject matter and opinions relating to religious beliefs, race, or national background, no matter how offensive they may be”). 45 See Julian Bond, 43 R.R.2d 1015 (Broadcast Bureau 1978) (finding that “it does not appear that the broadcast of the word ‘nigger’ falls within the Pacifica holding”); Doubleday Broad. Co., 56 FCC 2d 333, 338 (1993); Eagle Radio, 9 FCC Rcd. 1294, 1295 (1994). 46 395 U.S. at 446. 47 Spanish Radio Network, 10 FCC Rcd. 9954, 9959 (1995); see, e.g., Citicasters Licenses, L.P., 22 FCC Rcd. at 19331-32; Capstar TX Limited Partnership, 19 FCC Rcd. 11303 (2004); Greater Boston Radio, Inc., 19 FCC Rcd. at 13064, 13066; Anti-Defamation League, 4 FCC 2d at 191. -17-

D.C.’s professional football team has resulted in violence against Native Americans.48 Nor could

they. They fail to establish a prima facie case that broadcasting the team’s name poses a “clear

and present” danger of violence to Native Americans.

Banzhaf appears to recognize the difficulties inherent in government regulation of “hate

speech.” He correctly observes that the “general topic of ‘hate speech’ is so broad and complex,

potentially covering many different types of words and statements, and many different types of

harm as to which the causal connection may be vague if not indeed nonexistent.” Banzhaf Obj.

at 13. Indeed, the American Civil Liberties Union (“ACLU”), which opposes the use of the

Redskins’ team name, has said that proposals to directly or indirectly force the Redskins’

organization to change its name, including the pending trademark challenge, “raise broader

issues regarding the government’s troubling ability to censor offensive speech.”49 As an

example, the ACLU points to a lesbian motorcycle club called “Dykes on Bikes,” which

“proudly self-identifies using an epithet.”50 If broadcasting the Redskins’ name on the radio is

considered “hate speech,” then so too would be broadcasting the term “Dykes on Bikes” because

the word “Dyke” is considered a gender and sexual-orientation based epithet. The Commission

cannot be in the business of prohibiting speech that anyone might consider offensive or, even

48 The conclusory assertions in the affidavits attached to the Nightwolf Objections that the objectors “have experienced and/or witnessed harm to myself and/or to other Native Americans which I believe was caused by the frequent repetitive use of the word ‘R*dskins’ on the air” are not evidence of any clear and present danger and are more in the nature of a general opinion than fact. They add nothing to the legal inquiry. 49 Gabe Rottman, Redskins Wrong, But Legal, ACLU Blog of Rights, Dec. 10, 2013, http://bit.ly/1hUOOiD. 50 Id. -18-

worse, determining whether speech is “offensive.” Either would be an affront to both statutory and First Amendment principles.51

II. THE OBJECTORS FAIL TO RAISE A LEGITIMATE QUESTION REGARDING RED ZEBRA’S QUALIFICATIONS TO HOLD AN FCC LICENSE.

Unable to show that broadcasting the Redskins’ name on the radio violates any statute, rule or FCC regulation, Banzhaf turns to a false and shameful attack on the character of Mr.

Daniel Snyder, majority owner of the Washington Redskins and managing member of Red

Zebra’s parent company. Banzhaf’s personal attacks on Mr. Snyder are irrelevant to the renewal of the Station’s license. Although a licensee’s character may be considered in a renewal proceeding, the Commission has only considered instances of adjudicated fraud, criminal misconduct involving false statements or dishonesty, and violations of broadcast related anti- competitive and antitrust statutes.52 Banzhaf does not allege (nor could he) that Mr. Snyder has

been convicted of any misconduct that could trigger any concern about Red Zebra’s status as an

FCC licensee.53

51 Again, even if the FCC were to adopt a category denominated “hate speech,” Red Zebra does not believe that the term “Redskins,” when used to reference the Washington Redskins NFL franchise, comes close to qualifying for a ban on such “hate speech.” Contrary to Banzhaf’s claim that the word “redskin” is widely considered a “derogatory racial slur,” Banzhaf Obj. at 14, there is substantial evidence that the great majority of Native Americans do not consider the name “Redskins” offensive in the context of Washington, D.C.’s NFL franchise. See, e.g., Press Release, Annenberg Public Policy Center, Most Indians Say Name of Washington “Redskins” Is Acceptable While 9 Percent Call It Offensive, Annenberg Data Show (Sept. 24, 2004), available at http://bit.ly/1kOsvaL (90% of Native Americans agreed in response to a survey by the prestigious Annenberg Public Policy Center that the Redskins’ name is acceptable); Paul Woody, American Indians In Va. Have No Problem With “Redskins,” Richmond Times Dispatch (May 15, 2013), available at http://bit.ly/1vItIbd. 52 Policy Regarding Character Qualifications in Broadcast Licensing, 102 FCC 2d 1179, 1186 (1986), modified, 5 FCC Rcd. 3252, 1195 (1990) (subsequent history omitted). 53 Most of Banzhaf’s “character” allegations against Mr. Snyder bootstrap on Banzhaf’s assertions about the team name itself—assertions that Banzhaf certainly is entitled to make, but which, as demonstrated above, are not actionable in an FCC license renewal proceeding. -19-

Nevertheless, Red Zebra will respond to some of Banzhaf’s most insidious attacks on Mr.

Snyder’s character simply to clear the public record. First, Banzhaf claims that, through his

ownership of WWXX, Mr. Snyder “is responsible for its programming which repeatedly and

unnecessarily uses the racist term ‘R*dskins,’ perhaps more than any other.” Banzhaf Obj. at 16.

For this argument to have any merit, however, broadcasting the Redskins’ name to describe the

Washington Redskins football team must violate some established FCC rule or policy. It is

unfathomable that the Commission would regulate speech indirectly through its character policy

that it cannot otherwise directly regulate.54 As discussed at length above, supra at 6-13, the

Commission lacks authority under Section 309(k) to censor use of the Redskins’ name on

broadcast radio. Banzhaf’s misguided attempt to indirectly reach the Station’s content through a

character attack on Mr. Snyder should be rejected.

Intermixed with these “character” claims are suggestions that, simply by virtue of the football team’s name, broadcast outlets throughout the country are being “forced” to broadcast the name. See Banzhaf Obj. at 1, 17. That suggestion is absurd. The licensee of each and every radio and television station in the country has the same right, under the First Amendment and established Commission precedent, to determine what content it will broadcast or not, including whether to use the “Redskins” name in identifying or covering the team. As has been reported from time to time, individual media outlets and broadcasters have exercised that right in one direction or the other. See, e.g., John Breech, ESPN Updates Its Policy Regarding Use of Redskins team name, CBSSports.com, Aug. 23, 2014, available at http://cbsprt.co/1t34bfR (describing ESPN policy “allow[ing] its employees to choose whether or not” to use Redskins name”); Annys Shin, Washington Post Editorial Board Stops Using the Word ‘Redskins’, Wash. Post. Aug. 22, 2014, available at http://wapo.st/1t04cjH (noting that although the Washington Post editorial board would cease using the “Redskins” name, the news-gathering side would “continue to use the team’s moniker”); Barry Wilner, Simms, Dungy Likely Not to Use ‘Redskins’ on TV, Associated Press, Aug. 18, 2014, available at http://bit.ly/1vNhChJ. 54 Cf. Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, Second Report and Order, 27 FCC Rcd. 4535 (McDowell, R., approving in part, dissenting in part) (warning that “administrative agencies and Congress alike should think carefully before imposing new laws and regulations that could be construed by the Court as de facto, or ‘backdoor,’ inhibitions on political speech”). -20-

Second, Banzhaf argues that by retaining the decades-old Redskins’ team name, Mr.

Snyder “is directly responsible not only for this station’s repeated and unnecessary use of a racist

slur, but responsible also for similar conduct by thousands of other stations around the country.”

Banzhaf Obj. at 17. Banzhaf’s suggestion that Mr. Snyder forces broadcasters across the country

to use a specific word when referring to his team cannot be reconciled with his earlier statement

that “many in the print as well as broadcast media . . . believe that the word ‘R*dskins’ is so harmful it will no longer be used on the air.” Banzhaf Obj. at 10. Clearly, neither the NFL, nor the Redskins, nor Mr. Snyder has any ability to substitute their editorial judgment for that of any other broadcast licensee. Each broadcaster makes its own determination about how to refer to the Washington Redskins.

Third, there is substantial evidence that the vast majority of Americans are not offended by the team name “Washington Redskins.” A study by the highly respected Annenberg Public

Policy Center found that 90% of self-identified Native Americans did not find the Washington

Redskins’ team name to be offensive.55 Additionally, in an April 2013 Associated Press survey,

respondents, by a 79% to 11% margin, believed that the Washington Redskins should not change

their name.56 Whatever the division of public opinion on the issue of use of the word

“Redskins,” Banzhaf’s suggestion that the FCC should ban speech when it offends some portion

of the broadcast audience is dangerous and retrograde. Banzhaf’s standard would have banned

southern radio stations from advocating racial equality, interracial marriage, or women’s rights in

55 See Annenberg Public Policy Center, supra n. 51. 56 Poll Reveals Overwhelming Support for Redskins Name, USA Today, May 2, 2013, available at http://usat.ly/1piiia9. -21-

the not-so-distant past. Such views would have offended at least as many listeners as Banzhaf claims find the word “Redskins” offensive.57

Fourth, the “additional factors likewise relevant to [Mr. Snyder’s] character” that

Banzhaf raises are not even remotely germane to whether Red Zebra is fit to hold the Station’s

license. Banzhaf repeats allegations from a defamatory, baseless article that even the publisher

has disavowed. See Banzhaf Obj. at 17. Specifically, he quotes an allegation from an article in

the Washington City Paper stating that “Dan Snyder . . . got caught forging names as a

telemarketer with Snyder Communications.” Yet the paper’s publisher, Amy Austin, conceded

in an open letter that “we have no reason to believe he personally did any such thing—and our

story never says he did.”58 Banzhaf also recklessly repeats an allegation that Mr. Snyder “made

a great view of the Potomac River for himself by going all Agent Orange on federally protected

lands.” The paper’s publisher similarly conceded that this statement was “hyperbole” and

acknowledged that Mr. Snyder cut down trees after obtaining permission from “a top parks

official.”59 These allegations are demonstrably false and frivolous, and have no place in this

proceeding.

If the Commission is inclined to consider Mr. Snyder’s character, it must also account for

the immeasurable contributions that he has made to the Washington, D.C. community since

purchasing the Redskins. Mr. Snyder is deeply and personally involved in a host of

57 This explains why the TTAB ruling is irrelevant to this proceeding. The TTAB found that 30% of Native Americans constituted “a substantial composite” of persons who found team’s trademarks “disparaging.” Blackhorse, 2014 WL 2757516 at *5. Even granting that premise (which the TTAB dissenter found substantially wanting, id. at *42 (Bergsman, ALJ, dissenting)), the reaction of a “substantial composite” of one ethnic group cannot exercise an effective veto over broadcast content. 58 Amy Austin, From the Publisher To Our Readers (and Dan Snyder), Wash. City Paper, Feb. 23, 2011, available at http://bit.ly/1qcY41O (emphasis added). 59 Id. -22-

philanthropic activities both in the D.C. metropolitan area and around the country. Shortly after

purchasing the Washington Redskins franchise, Mr. Snyder created the Washington Redskins

Charitable Foundation, which has given more than $15 million to individuals, groups, and organizations in the community and which, each year, provides more than 100,000 pounds of fresh food, packaged food, and turkey at an annual event at FedEx Field. Mr. Snyder and/or the

Washington Redskins (under Mr. Snyder’s direction) donated transportation to help the Red

Cross’s disaster relief efforts in Haiti in 2010, donated to victims of 9/11 and Hurricane Katrina, established the Snyder Family Emergency Center at Washington Children’s Hospital, and established the Daniel M. Snyder and Family Communication Center at the Center for Missing and Exploited Children. Mr. Snyder repeatedly has been recognized and honored for these and other diverse philanthropic efforts.

With respect to the debate over the team’s name, Mr. Snyder personally has responded to these concerns and solicited many different perspectives. He and other members of the

Washington Redskins’ organization have traveled to 30 Tribal reservations across 20 states to listen to the views of those Tribes about the Redskins’ name and logo. While many of the Tribes have expressed support for the association between the Redskins’ name and a cherished football program,60 Mr. Snyder also learned that many Tribes have far more pressing concerns than the

name of a professional football team: high poverty rates, rampant diabetes, alcohol and drug

60 Indeed, as the dissenting ALJ at the TTAB noted, Blackhorse, 2014 WL 2757516 at *36-38 (Bergsman, ALJ, dissenting), there are numerous examples of Native American sports teams proudly using the team name “Redskins.” See, e.g., Chris C. Jenkins, Son, Daughter Celebrated in Memorial Tourneys, Seminole Tribune (Fla.), Apr. 30, 2010, at 1C, available at http://1.usa. gov/1nb7e2X p. 24 (identifying the “Lady Redskins” as one of the teams in a Tribal basketball tournament); Letter from Robert D. Kahn to Jack Kent Cooke (Nov. 4, 1991), available at http://1.usa. gov/1oKFzBm pp. 6-8 (letter including photograph of school on Navajo Indian Reservation with sign “Red Mesa High School: Home of the Redskins”). -23-

abuse, violence, heightened suicide rates, and a lack of basic infrastructure, such as safe water

and electricity.

Mr. Snyder is committed to using the stature of the Washington Redskins’ organization to combat these problems affecting many parts of the Native American community. Mr. Snyder tapped Gary Edwards, a Cherokee and retired Deputy Assistant Director of the United States

Secret Service, to lead the Washington Redskins Original Americans Foundation, an organization dedicated to addressing the most pressing needs of Tribal communities. These efforts are ongoing, and currently include more than 100 active projects to improve the lives of

Native Americans across the country.

III. THE OBJECTORS FAIL TO MAKE A PRIMA FACIE CASE THAT THE STATION’S RENEWAL APPLICATION SHOULD BE DESIGNATED FOR A HEARING.

Banzhaf argues that, even if his assertions do not merit revocation of the Station’s license, the Commission must at least hold “a hearing as to those substantial and material questions of fact which require an evidentiary hearing to resolve.” Banzhaf Obj. at 18. Under

Section 309(k), however, Banzhaf must properly allege facts that, if true, would establish a substantial and material question of fact that granting the Station’s renewal application would be inconsistent with the statute.61 He has not met this burden. There are no questions of fact, let

alone substantial and material ones, to be tried in a hearing. Red Zebra does not dispute that it

broadcasts the team name “Redskins” in its sports news coverage, play-by-play broadcasts, and other programming related to Washington, D.C.’s NFL team. The only question is whether, as a

61 See 47 U.S.C. § 309(e); WWOR-TV, Inc., 6 FCC Rcd. 193, 197 n.10 (1990), aff’d sub nom. Garden State Broad. L.P. v. FCC, 996 F.2d 386 (D.C. Cir. 1993), rehearing denied (Sept. 10, 1993); Area Christian Television, Inc., 60 R.R.2d 862, 864 (1989) (informal objection must contain adequate and specific factual allegations sufficient to warrant the relief requested). -24-

matter of law, the Station’s use of the team name provides any basis for non-renewal of its

broadcast license. As we have shown, the answer is clearly “no.”

IV. REVOKING THE STATION’S LICENSE FOR BROADCASTING THE TERM REDSKINS ON THE RADIO WOULD BE UNLAWFUL.

The Commission would not only violate the Communications Act if it were to punish or

prohibit the Station’s use of the term Redskins on the radio. As we explain below, the

Commission could not revoke the Station’s license without running afoul of the First

Amendment, the Fifth Amendment, and the Administrative Procedure Act (“APA”). At bottom, the agency would be acting unlawfully on numerous fronts if it were to attempt to use its licensing power to take one side in an ongoing debate over the team name of an NFL franchise.

A. Revoking the Station’s License for Broadcasting the Term Redskins Would Violate the First Amendment.

The First Amendment to the United States Constitution provides that “Congress shall

make no law . . . abridging the freedom of speech, or of the press.”62 “Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the [g]overnment, contravenes . . . the heart of the First Amendment.”63 For this

reason, a regulation directed toward the content of a speaker’s message is subject to strict

scrutiny.64 Under this heightened form of scrutiny, the government must show that the

restriction serves “to promote a compelling interest” and is “the least restrictive means to further

the articulated interest.”65

62 U.S. Const. amend. I; see also United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 811 (2000). 63 See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) 64 Playboy, 529 U.S. at 813. 65 Sable Commc’ns of Calif., Inc. v. FCC, 492 U.S. 115, 126, 131 (1989). -25-

The Commission could not make this showing if it were to refuse to renew the Station’s

license for broadcasting the term Redskins. Indeed, sanctioning the Station for the content of its

broadcasts would strike at the heart of the First Amendment. “Discrimination against speech

because of its message is presumed to be unconstitutional. . . . When the government targets not

subject matter, but particular views taken by speakers on a subject, the violation of the First

Amendment is all the more blatant.”66 Even in the case of commercial speech, the “First

Amendment requires heightened scrutiny whenever the government creates a regulation of

speech because of disagreement with the message it conveys.”67

To be clear, the vast majority of speech at issue here is not commercial speech. Most of

the speech the objectors seek to ban does not propose a transaction. When reporting the sports

news, use of the appellation “Washington Redskins” is factually accurate, truthful, fully-

protected speech. The term is used as part of the Station’s diverse coverage of the region’s other sports teams, including the Wizards, Capitals, Nationals, and Orioles. But beyond that, using the term “Redskins” is now a form of political advocacy. As Banzhaf himself notes, some tribal leaders and some sportscasters find the name “Redskins” offensive and express their opposition by not using the name on the air. Banzhaf Obj. at 10. Ipso facto, use of the name “Redskins” is to implicitly take a position in this matter of public debate and controversy. Government regulation that takes one side in a public debate is subject to strict scrutiny under the First

Amendment and is almost universally condemned by the Supreme Court.68 As Justice Stevens

wrote, “if it is the speaker's opinion that gives offense, that consequence is a reason for according

66 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828-29 (1995) (internal quotation omitted). 67 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011) (internal quotation omitted). 68 Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 20–21 (1986); Turner Broad. Sys., Inc., 512 U.S. at 641–42. -26-

it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.”69 Apparently unsatisfied with his results in the free marketplace of ideas, Professor Banzhaf seeks to use governmental authority or the threat of governmental censorship to weaken his opponents’ side in a public debate. It is hard to think of a more obvious First Amendment violation.

There is no compelling governmental interest that could possibly support banning the use of the term Redskins on the radio. “Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists.”70 Even if the Commission could somehow articulate a compelling interest for banning all references to the team’s name, revoking a license because a station accurately broadcast the team name “Washington Redskins” would not be the least restrictive means to further that interest.71

69 Pacifica, 438 U.S. at 745-46. 70 Playboy, 529 U.S. at 813. 71 In Red Lion Broadcasting Co. v. FCC, the Supreme Court justified the unique regulation of broadcast speech under the “scarcity doctrine,” reasoning that because of the scarcity of broadcast spectrum, the Government should be “permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium.” 395 US 367, 390 (1969). Whatever the original merits of this doctrine, courts have increasingly acknowledged that its present application makes no sense in light of developments that have rendered the concept of scarcity in electronic communications quite laughable. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 533 (2009) (“Fox I”) (Thomas, J., concurring) (observing that “even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions”); Fox II, 132 S.Ct. at 2321 (Ginsburg, J., concurring) (“Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.”). The FCC itself has recognized the tenuous state of the so-called “scarcity doctrine.” See Syracuse Peace Council, 2 FCC Rcd. at 5053 (“[T] the scarcity rationale developed in the Red Lion decision and successive cases no longer justifies a different standard of First Amendment review for the electronic press.”). Thus, for the record, Red Zebra makes and preserves the argument that Red Lion cannot be applied to this license renewal proceeding. -27-

The Commission has correctly recognized that restricting the content of a broadcaster’s

message would be inconsistent with the First Amendment. In scores of decisions, the

Commission has rejected petitions to deny license renewals based on programming content even

where the content is controversial, confrontational, or offensive to particular groups. In John

Neely, Esq., for example, the Commission renewed a radio station license over objections that

the President of the licensee and a station radio personality “used the term ‘Nazis’ to describe

environmentalists . . . advocated the sale of white sheets during the Martin Luther King, Jr.

celebration, and . . . referred to a gay woman as a ‘stupid gumba.’”72 In Eagle Radio, the

Commission determined that the licensee was acting within its discretion when it broadcast

“several parodies of Christmas carols as they would be sung by ‘the Marge Schott Choir.’”73

And, in Doubleday Broadcasting, the Commission held that it could not censor the repeated use of the term “wetback” to refer to Mexican Americans on a radio talk show.74 For the same

reason, the Commission could not prohibit use of a professional sports team’s decades-old name

without running afoul of the First Amendment.

The risk to free speech is particularly serious where, as here, Banzhaf has threatened

publicly to challenge the licenses of other stations that broadcast the Redskins’ name.75 Banzhaf

has declared that he plans to recruit Native American objectors to broadcast licenses around the country and then, in the crassest form of regulatory extortion, offer (particularly smaller) station

72 22 FCC Rcd. at 8396. 73 9 FCC Rcd. at 1295 & n.6. Marge Schott was the owner of the Cincinnati Reds baseball team and was repeatedly suspended for allegedly making racist statements. See Glen Macnow, Reds Owner Is Suspended 1 Year, Fined The Penalty: $25,000, Phila. Inquirer, Feb. 9, 1993, available at http://bit.ly/1pJm644. 74 56 FCC 2d at 338. 75 See John Eggerton, Banzhaf Vows to Challenge L.A. Station Over “Redskins,” Broadcasting & Cable, Sept. 22, 2014, available at http://bit.ly/1shNgWu. -28-

owners a contract not to use the word Redskins on the air as a way to clear the path to license renewal without objection.76 Without a swift and clear message from the Commission that it will

not regulate through the “raised eyebrow” method Banzhaf advocates, any delay will allow

Banzhaf to continue to abuse the license renewal process to silence his opponents in a public

debate. The Commission should dismiss or deny the Objections immediately, reaffirm its

commitment to First Amendment principles, and renew the Station’s license forthwith.

B. Revoking the Station’s License for Broadcasting the Term Redskins Would Violate The Fifth Amendment.

Accepting the objectors’ position here would violate both the “void for vagueness” and

“fair and reasonable notice” prongs of the Due Process Clause of the Fifth Amendment. A

regulation will be void for vagueness in violation of the Fifth Amendment if it “forbids or

requires the doing of an act in terms so vague that [persons] of common intelligence must

necessarily guess at its meaning and differ as to its application”77 or if the regulation’s language

“may authorize and even encourage arbitrary and discriminatory enforcement.”78 These

concerns are especially acute in the First Amendment area. As the Supreme Court has explained,

“where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it

76 Block, supra note 14 (“After L.A. Banzhaf plans to go after radio and TV stations in areas with large Indian populations in states like Oklahoma, North Dakota and South Dakota that are owned by individuals or smaller companies. He will offer stations the opportunity to sign an agreement not to use [the word] Redskins . . . .”). It is difficult to think of a more irresponsible and unlawful use of the FCC’s license renewal process. 77 Connally v. General Constr. Co., 269 U.S. 385, 391 (1926); see also Fox II, 132 S.Ct. at 2317 (“A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”) (internal quotation omitted); Fox Television Stations, Inc. v. FCC, 613 F.3d 317, 327–28 (2d Cir. 2010). 78 City of Chicago v. Morales, 527 U.S. 41, 56 (1999); Fox II, 132 S.Ct. at 2317 (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”). -29-

operates to inhibit the exercise of [those] freedoms.”79 For this reason, the Supreme Court

applies a stricter vagueness standard to regulations that encroach upon First Amendment freedoms.80

In addition, due process requires that the Commission provide “sufficient notice of what

is proscribed” before it can enforce a policy that interferes with broadcasters’ protected speech.81

In Fox II, the FCC issued Notices of Apparent Liability for three alleged violations of the agency’s indecency policy in network television programs. Several months after the latest of these incidents, the Commission issued an order reversing its prior rulings that the use of expletives must be “sustained or repeated” to be indecent. Id. The Supreme Court concluded that “the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent” and held that the

Commission had “failed to provide a person of ordinary intelligence fair notice of what is prohibited.”82

79 Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (alterations and internal quotation marks omitted). 80 See Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 499 (1982) (“[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.”). Even outside of the First Amendment context, the D.C. Circuit has long held that “[t]raditional concepts of due process incorporated into administrative law preclude an agency from penalizing a private party for violating a rule without first providing adequate notice of the substance of the rule.” Satellite Broad. Co. v. FCC, 824 F.2d 1, 3 (D.C. Cir. 1987); see also Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1328-29 (D.C. Cir. 1995). This follows the Supreme Court’s longstanding insistence that “[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). 81 Fox II, 132 S.Ct. at 2317. 82 Id. at 2318 (citations omitted). -30-

The same notice problem at issue in Fox II would be present here were the Commission

to refuse renewal of the Station’s license for broadcasting the term Redskins on the radio. The

Commission has failed to provide reasonable notice to the Station that broadcasting the

Washington Redskins’ full name violates any statute or Commission rule. In particular, the

Commission has never interpreted Section 309(k)’s public interest standard as prohibiting the use of offensive speech on the radio, nor does broadcasting the Redskins’ name fall within the

Commission’s existing precedents governing indecency, obscenity, profanity, or hate speech. To the contrary, the Commission repeatedly has held that it will not consider the content of broadcast programming when determining whether to renew a broadcast license. Because the

Commission lacks any existing policy that would prohibit broadcasting the term Redskins, Red

Zebra obviously did not have any notice that its broadcasts could lead to non-renewal of

WWXX’s FM license.

Nor would the policy suggested by Banzhaf, even applied solely on a forward-looking basis, survive due process scrutiny. “[S]tandards of permissible statutory vagueness are strict in the area of free expression.”83 “Vague laws force potential speakers to steer far wider of the

unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.”84 Yet, the

“standards” proposed by Banzhaf are necessarily unclear. Rather than establish a clear guide for

what is or is not permissible, Banzhaf would have the government make case-by-case

determinations about which words are “disparaging” or “derogatory.” Such “lack of [] notice in

83 Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S. 415, 432 (1963). 84 Brown v. Entm’t Merchants Ass’n, 131 S.Ct. 2729, 2743 (2011) (internal quotation omitted). -31-

a law that regulates expression raises special First Amendment concerns because of its obvious

chilling effect on free speech.”85

As for Banzhaf’s exception for Indian names for other sports teams, it is completely subjective. For example, Banzhaf cites to newspaper articles introduced in the trademark case for the proposition that the name Redskins “often portrays Native Americans as either aggressive, savages or buffoons.” Banzhaf Obj. at 7. Why this observation, even if accurate

(which it is not),86 would not apply to the team name “Braves” or “Blackhawks” is unexplained

and frankly inexplicable. The distinction appears to be based entirely on Banzhaf’s own

sensibilities and his selective use of media studies. This is exactly the kind of subjective,

viewpoint-based discretion that the Fifth Amendment forbids in the area of protected speech.87

Banzhaf’s own exceptions for: (1) “‘Chiefs,’ ‘Braves,’ ‘Indians,’ and ‘Blackhawks’ etc.,”

Banzhaf Obj. at 2 n.1; (2) use of the N-word “when used by a black person on an adult program

centered around the very use of the word,” id. at 15; and (3) use of word Redskins “a few times a day while reading sports scores” or “during a live interview,” id. at 6, demonstrate the utterly

standardless, subjective, and censorial nature of his proposal.

C. Revoking the Station’s License for Broadcasting the Term Redskins Would Be Arbitrary and Capricious.

It is well established that an agency’s decision will be vacated as arbitrary and capricious

when the agency departs from established precedent without a reasoned explanation.88 Such

85 Id. 86 The referenced statements unambiguously refer to the Washington Redskins football team, not to Native American people. 87 See Grayned, 408 U.S. at 109 (“A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”). 88 Fox I, 556 U.S. at 513. -32-

would be the case if the Commission were to revoke the Station’s license for broadcasting the

term Redskins. As we have explained, the Commission’s precedent does not permit the type of

intrusion into broadcast content that the objectors propose. The Commission’s longstanding

precedent dictates that, “at renewal time,” its sole function is to “review whether a licensee’s programming efforts, on an overall basis, have been in the public interest.”89 Nothing more is

required. Since there is no “reasoned explanation” that could be given for violating Section 326

and the First Amendment, the Commission cannot and should not do so. Acceptance of

Banzhaf’s position would be arbitrary and capricious and would run afoul of clear D.C. Circuit

APA precedent on the issue.

V. CONCLUSION

For these reasons, the Commission should promptly dismiss or deny the Objections and

grant the renewal of WWXX’s FM broadcast license forthwith.

Respectfully submitted,

By: __/s/______Andrew G. McBride Kathleen A. Kirby Gregory L. Masters Ari S. Meltzer Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 TEL: 202.719.7000 FAX: 202.719.7049

October 17, 2014

89 Licensee Responsibility to Review Records Before Their Broadcast, Memorandum Opinion and Order, 31 FCC 2d 377, 378 (1971). -33-

Certificate of Service I, Ari Meltzer, hereby certify that on October 17, 2014, I caused a copy of the foregoing “Consolidated Response to Informal Objections” to be mailed via first-class postage prepaid mail, to the following:

John F. Banzhaf III 104 N. Jackson Street Arlington, VA 22201

Louis Ramon Grimaldi 3713 S. George Mason Dr. #604W Falls Church, VA 22041

Verona Iriarte 5605 2nd St. NE, Suite 3 Washington, DC 20011

Jay Winter Nightwolf 9000 Nancy Lane Fort Washington, MD 20744

Audio Division, Media Bureau Federal Communications Commission Washington, DC 20554 (via CDBS)

_/s/______Ari Meltzer