FCC 95-354 Federal Communications Commission Record 10 FCC Red No. 19

filed September 26, 1994, by HBC; (4) a letter dated Sep Before the tember 29, 1994, filed by Licensee Corporation #1, li Federal Communications Commission censee of Station WAQI(AM), , , relating to Washington, D.C. 20554 allegations made in the Petition to Deny against that sta tion; (5) the Letter of Larry D. Eads, Chief, Audio Services In re Applications of Division, to Francisco R. Montero, et al., dated May 4, 1995 (hereafter the "Montero Letter"), granting the applica SPANISH RADIO NETWORK tion for transfer of control of Licensee Corporation #1, licensee of Station WAQI(AM), Miami, Florida, and of Licensee Corporation #2, licensee of Station WRTO(FM), For Transfer of Control of Goulds, Florida (Licensee Corporation #1 and Licensee Corporation #2 are sometimes collectively referred to WQBA(AM), Miami, Florida File No. BTC-931216HK hereafter as "Corporations"), from Mambisa Broadcasting WQBA(FM), Miami, Florida File No. BTCH-931216HL Corporation ("Mambisa") to Heftel Broadcasting Corpora WGLI(AM), Babylon, File No. BTC-931216HN tion ("Heftel"; HBC and Heftel are generally referred to New York collectively as "Heftel" herein); (6) an Application for Review of the Montero Letter filed June 5, 1995, by Cambio WADO(AM), New York, File No. BTC-931216HM Cubano, Professionales y Empressarios Cubano New York Americanos (PECA/CAPE), and Sepia Fine Graphic Arts, Inc. d/b/a/ Contrapumo Magazine (these are the same LICENSEE CORPORATION #1 groups identified above as the "Miami Petitioners"); (7) an Opposition to Application for Review filed June 21, 1995, For Transfer of Control of by Heftel Broadcasting Corporation; and (8) an Opposition WAQI(AM), Miami, Florida File No. BTC-940815EC to Application for Review filed June 20, 1995, by Mambisa Broadcasting Corporation. LICENSEE CORPORATION #2 2. These cases, involving two separate radio station trans actions with a common buyer, have been consolidated by the Commission because they raise nearly identical issues For Transfer of Control of with respect to the various Miami-area stations involved in WRTO(FM), Goulds, Florida File No. BTCH-940815GF these transfers of control. In the first case, involving, inter alia, Stations WQBA(AM)/WQBA(FM), the Miami Peti tioners seek review of the Honig Letter©s denial of their MEMORANDUM OPINION AND ORDER Petition to Deny the referenced applications for transfer of control of SRN to Heftel. In the second Application for Adopted: August 10,1995; Released: September 12, 1995 Review, involving Stations WAQI(AM) and WRTO(FM), the Miami Petitioners seek review of the Montero Letter©s By the Commission: denial of their Petition to Deny the applications for trans fer of control of Licensee Corporation #1 and Licensee 1. The Commission has under consideration: (1) the Corporation #2 from Mambisa to Heftel. In both cases,2 Letter of Larry D. Eads, Chief, Audio Services Division, to the Miami Petitioners maintain principally: (1) that the David Honig, et al., dated August 10, 1994 (hereafter the acquisition of control of SRN by HBC/Heftel, in combina "Honig Letter"), granting the application for transfer of tion with the existing and proposed increased ownership by control of Spanish Radio Network ("SRN"). licensee of Heftel in the Corporations, would violate the Commission©s Stations WQBA(AM) and WQBA(FM), Miami, Florida, local radio ownership rules; (2) that one of the stations in WGLI(AM), Babylon, New York, and WADO(AM), New which Heftel held a minority ownership interest had vio York, New York, from Mark Blank, Tony Blank, Herbert lated the personal attack rule; and (3) that this other M. Levin. Robert Frehling, Russell Frehling, Kathy station in which Heftel held a minority interest had en Kramer, and Broadcast Holdings, Inc., to HBC Florida, gaged in an incitement to violence against opponents of Inc. ("HBC"), a wholly-owned subsidiary of Heftel Broad viewpoints espoused by that station. For the reasons set casting Corporation ("Heftel"); (2) an Application for Re forth below, the two Applications for Review are denied view of that decision filed September 9, 1994. by Cambio and the actions granting the referenced transfer of control Cubano, Professionales y Empressarios Cubano applications are affirmed. Americanos (PECA/CAPE). and Sepia Fine Graphic Arts, 3. Multiple Ownership. Heftel currently holds an attrib Inc. d/b/a/ Contrapumo Magazine (collectively, the "Miami utable ownership interest in Stations WAQI(AM), Miami, Petitioners");1 (3) an Opposition to Application for Review and Station WRTO-FM, Goulds, Florida.3 With the addi-

1 Cambio Cubano describes itself as a South Florida member Spanish language South Florida magazine published by Sepia ship organization supporting pacifist solutions to the transition Fine Graphic Arts, Inc., containing articles on politics, art and to Cuban democracy. Professionales y Empressarios Cubano tourism directed to the Latin and Cuban community. Americanos (PECA/CAPE) describes itself as a South Florida 2 Miami Petitioners have incorporated by reference the WQBA membership organization interested in conducting lawful busi Application for Review into the WAOI Application for Review. ness with and organized to seek changes in the law to 3 Heftel is the 49 percent general partner of Viva Broadcasting allow it to do so. Miami Petitioners describe Contrapumo as a ("Viva"). Viva, in turn, is the parent of Licensee Corporation #1, which operates WAQI through Viva©s 51 percent managing general partner, Mambisa Broadcasting Corporation. Licensee

9954 10 FCC Red No. 19 Federal Communications Commission Record FCC 95-354 tion of SRN©s Miami facilities, Heftel claims it will have a According to Miami Petitioners, the local radio ownership combined audience share of 13.3 percent in the Arbitron rules involve a goal analogous to that of the distant signal Miami-Ft. Lauderdale-Hollywood Metro Market, less than importation rule, and thus Fox requires the Commission to the 25 percent limit specified in 47 C.F.R. consider language comprehensibility in defining the market §73.3555(a)(l)(ii), the relevant local radio ownership rule. in evaluations involving the local radio ownership rules. Miami Petitioners, however, would define the market for 6. In its Oppositions to the two Applications for Review, purposes of the rule as the "Spanish radio market," or Heftel argues that Miami Petitioners fail to cite any rule or "persons for whom Spanish is the primary language." precedent allowing use of an alternative market based on Based on consideration of only the Spanish language sta language for determining concentration for purposes of the tions in the relevant service area, Miami Petitioners claim local radio ownership provisions. According to Heftel, the that the proposed transferee would have a combined 58.3 reference to alternative data in paragraphs 52, 55, and 56 of percent share. Radio Rules Reconsideration is limited to situations where 4. In support of their contention that the Commission©s Arbitron data is anomalous or unreliable, and, contrary to analysis for compliance with the radio ownership rule Miami Petitioners© contention, the note to should be confined only to the "Spanish radio market," §73.3555(a)(l)(ii) does not otherwise sanction the use of Miami Petitioners argue that for local Spanish speakers and alternative data. Heftel further argues that use of alternative for political and commercial advertisers seeking to reach market definitions based on format is inherently unreliable them, Spanish radio is the only meaningful broadcast and contrary to Commission goals. choice. According to Miami Petitioners, Spanish radio is 7. Discussion. We reject Miami Petitioners© contention not a format, and consumer behavior and political goals of that only Spanish language stations should be considered in Spanish speakers differ significantly from those of the gen determining the combined audience share of the stations eral population. Miami Petitioners claim that a combina that would be attributable to Heftel for the purpose of tion of the four Miami area stations in question could compliance with the ownership rules. Section determine the tone of political dialogue in the Spanish- 73.3555(a)(l)(ii) of the Commission©s Rules, 47 C.F.R. § speaking community and would be "inherently 73.3555(a)(l)(ii), provides as follows: anticompetitive" and violative of the letter and spirit of the local radio ownership rules. In radio markets with 15 or more commercial radio 5. Miami Petitioners argue that the ownership rules pro stations, a party may own up to 2 AM and 2 FM visions are designed to protect the public from concentra commercial stations, provided, however, that evi tion such as that which allegedly would occur here. Citing dence that grant of any application will result in a Revision of Radio Rules and Policies ("Radio Rules"), 1 combined audience share exceeding 25 percent will FCC Red 2755, 2780, §50 (1992), they assert that these be considered prima facie inconsistent with the public provisions are designed to reach beyond ordinary antitrust interest.4 concerns, because they are also designed to promote a distinct objective, a diversity of voices. Miami Petitioners claim that the relevant market here can appropriately be It is true that the Commission, in adopting this 25 percent defined by language, referencing wording in Revision of audience share limit, intended to protect and promote a Radio Rules and Policies ("Radio Rules Reconsideration"), 1 diversity of media voices. However, there is nothing either FCC Red 6387, 6398, f f52 and 55-56 (1992), which they in the express language of the rule quoted above, in Radio characterize as indicating that the Commission has pro Rules, or in Radio Rules Reconsideration, to indicate that vided for a "wide range" of market definitions. Miami the goal of enhancing diversity is furthered by defining the Petitioners argue that the Commission has recognized that relevant market in terms of the languages in which radio persons unable to communicate in English constitute a stations broadcast. Insofar as the Commission provided for broadcast market separate from those who speak English, the submission of alternative audience data in paragraphs and contend that the Commission©s decision in Fox Televi 52 and 55-56 of Radio Rules Reconsideration, the clear sion Stations, Inc., 8 FCC Red 3213 (1993) ("Fox"), involv language set forth therein limits consideration of such al ing the distant signal importation rule, demonstrates that ternative data to situations where standard audience share language comprehensibility is critical to market definition. data is not readily available or does not accurately show that excessive concentration will not exist. 5 Miami Petition-

Corporation #2, the licensee of WRTO, has the same owner applicants certify that they do not have readily available ship as Licensee Corporation #1. Subsequent to the filing of the audience share data, they may substitute other informa SRN transfer of control application on December 16. 1993, tion that can serve as a proxy for such data. See Memo applications were filed on August 15, 1994, proposing the trans randum Opinion and Order in MM Docket No. 91-140, 7 fer of control of Licensee Corp. #1 and Licensee Corp. #2 from Mambisa Broadcasting Corporation to Heftel Broadcasting FCC Red 6387 (1992), 57 FR 42701 (Sept. 16, 1992). Corporation, and Miami Petitioners filed their second Petition 5 The Commission©s discussion, at paragraph 52 of Radio Rules to Deny against that application on September 29, 1994, in large Reconsideration, of the circumstances under which alternative part incorporating by reference the earlier Petition to Deny audience share data may be considered (including language against WQBA. omitted by Miami Petitioners© in their quotation at page 4 of 4 The following note to this provision is also relevant here: their Application for Review) makes clear the limited nature of this option: Note to paragraph (a)(l)(ii): When evaluating audience To the extent that petitioners are concerned that Arbitron©s share evidence submitted under §73.3555(a)(l)(ii), the measuring tools may be too rough-hewn and thus may Commission will consider data that eliminates statistical unfairly foreclose them from acquiring stations due to inac anomalies, provides a better focused survey area or in curacies in the data, we note that applicants will be free to cludes revenue data or other relevant information. Where

9955 FCC 95-354 Federal Communications Commission Record 10 FCC Red No. 19

ers© desire in the present case to limit the market to Petitioners© desire to segregate the radio metro market for Spanish language stations goes far beyond the limited na ownership purposes into Spanish-language and English- ture of the alternative data exception outlined in Radio language stations might allow the acquisition of a Spanish Rules Reconsideration, in a manner clearly beyond that station by the owner of an English station where the contemplated by the Commission©s rules. combined audience share exceeded 25 percent. These re 8. Miami Petitioners© arguments that non-English speak sults clearly were not intended by the current rule. Insofar ers constitute a distinct broadcast market and that Spanish as Miami Petitioners would have the rule recast so as to programming serves the public interest are not dispositive prohibit broadcast concentration in a market defined by for purposes of evaluating the instant transfer applications language comprehension, the appropriate course of action under the multiple ownership rules. Although Spanish is to request that the Commission institute a generic rule speakers may be perceived by those seeking to reach them making proceeding to change its current multiple owner as a distinct market, the multiple ownership rules are not ship rules and policies. See Patteson Brothers, Inc., 8 FCC© geared toward such a market definition. Neither the plain Red 7595, 7596 (1993). language of Section 73.3555 nor the pronouncements in 10. We also agree with the Montero Letter©s conclusion Radio Rules and Radio Rules Reconsideration address con that the local ownership compliance determination made sideration of a market defined by language. Rather, the in the prior Honig Letter is not changed by the filing of the rule is crafted in terms of an entire broadcast "audience," second set of applications whereby Heftel would move including both Spanish speakers and others. Indeed, the from minority to majority ownership of WAQI and rule itself does not use the term "market" in the same WRTO. Although Heftel claims that it was not previously sense as that term is used in other contexts;6 rather, Section involved in the day-to-day operations of WAQI and 73.3555(a)(l)(ii) refers instead to "audience share," which WRTO, its previous 49 percent general partnership interest in turn is defined in Section 73.3555(a)(3)(iii) as the aver was treated as fully attributable under the Commission©s age number of persons "who listen to the station, expressed attribution rules, not because of the percentage of owner as a percentage of the average number of persons listening ship interest involved but because of the character of a to AM and FM stations in that radio metro market or a general partner©s rights and prerogatives in a partnership. recognized equivalent, in which a majority of the overlap See 47 C.F.R. § 73.3555 note 2. The attribution rules between the stations in question takes place." "Radio metro assume, essentially, that the maximum degree of control market" is a standard term used by Arbitron to delineate possible arises from any general partnership interest, re stations appearing in diaries in a specific geographical area, gardless of the specific practices by which an individual and does not include a distinction based on language. partnership actually operates. Heftel©s proposed majority 9. Moreover, most larger radio metro markets include at ownership does not substantially alter the treatment of its least one or more foreign language stations. It would in interests in WAQI and WRTO for purposes of the multiple volve a substantial rewriting of the present rules to require, ownership rules. Thus the proposed acquisition of control in each specific local ownership rule evaluation, that the of WAQI/WRTO by Heftel does not require any modifica stations considered in evaluating audience share be segre tion of the conclusions reached in the Honig Letter. For gated into English-language stations on the one hand, and these reasons, we deny review of the Honig Letter and the Spanish-language stations on the other. By Miami Petition Montero Letter with respect to the multiple ownership is ers© reasoning, an existing licensee©s acquisition of another sues. English-language station would analogously require the ex 11. Personal Attack and Incitement to Violence Allegations. clusion from consideration of all Spanish language stations. Miami Petitioners alleged that WQBA and WAQI7 have And in markets with only two or three Spanish language "repeatedly" violated the personal attack rule and have stations (unlike Miami where there are more than seven contributed to a "climate of political violence." These per such stations), there would be virtually no situation where sonal attacks, it is said, have usually consisted of accusa common ownership would be permitted. Further, Miami tions that those who are not sufficiently in opposition to

submit additional showings demonstrating compliance lish language is the sort of fundamental operational change with the share limit based on more accurate survey which warrants treating the station as essentially ©new© for the methods or the alternative measures of market share purposes of establishing significantly viewed status." Id. at 3214. The Commission did not imply that the agency would use described below. language as a means of market definition to determine compli 7 FCC Red at 6398 (emphasis added to show language omitted ance with the multiple ownership rules. While in some broad by Miami Petitioners; footnote omitted). Similarly, the language sense the significantly viewed signal carriage rule and the local omitted by Miami Petitioners from their quotation of paragraph radio ownership rules may share the common "goal" of increas 56 of Radio Rules Reconsideration also is significant in dem ing diversity, the purpose of the Fox ruling itself was limited to onstrating the limited nature of the alternative data option: a recognition that the change in spoken language may affect the ... we acknowledge that there may be situations where viewing patterns for such a station. There is no basis for imput applicants can provide data that eliminates statistical ing a broader meaning to that limited ruling so as to justify the anomalies, provides a better focused survey area or in division of all types of "markets" into language-based dual mar kets. cludes revenue data or other information proving that 7 As noted above at footnote 3, prior to the filing of the excessive concentration will not result. applications at issue in this proceeding, Heftel held no interest Id. at 6399 (emphasis added to show language omitted). in WQBA(AM)/(FM). Heftel did hold a minority ownership 6 For this reason, Miami Petitioners© reliance on Fox Televi interest in, but claims not to have exercised control over, sion Stations, Inc., supra, 8 FCC Red 3213, for the proposition WAQI, which was licensed to Licensee Corporation #1. that the Commission has recognized that language comprehen- sibilhy is critical to market definition, is misplaced. In Fox, the Commission simply held that "a change from Spanish to Eng

9956 10 FCC Red No. 19 Federal Communications Commission Record FCC 95-354

the regime in Cuba are suspect or are traitors to the cause (1980)]. Among other requirements, the complaint of Cuban democracy. Moreover, according to Miami Peti must show that a controversial issue of public impor tioners, the targets were seldom afforded opportunities to tance has been discussed. Id. at 445-47. respond. Miami Petitioners also alleged that certain broad casts led to "mob violence" against parties opposing the Anti-Defamation Ass©n of Emigres from Post-1917 Russia v. prevailing hard line policies directed against the Castro FCC, No. 86-1169, 63 R.R.2d 1425, 1427 (D.C. Cir. June regime. 30, 1987).8 12. The Honig Letter rejected Miami Petitioners© allega 15. Although Miami Petitioners make the broad claim tions that WAQI and WQBA violated the personal attack that the Honig Letter erroneously held that "Cuban-Ameri rule. First, the Honig Letter found that Miami Petitioners can relations" is not a "controversial issue of public impor failed to present evidence that the alleged personal attacks tance," no such conclusion appears in the Decision. took place during a discussion of a controversial issue of Rather, the Honig Letter correctly held that Miami Peti public importance. Second, the Honig Letter found that the tioners "presented no evidence to demonstrate that any issue Miami Petitioners© claim was undermined by the fact that discussed was the subject of vigorous debate with substan none of the persons identified as targets of the personal tial elements of the community in opposition to each attacks contacted the stations to invoke their rights under other" (emphasis added), citing Fairness Doctrine and Pub the personal attack rule, noting that the Commission gen lic Interest Standards, 48 FCC 2d 1 (1974), recon. denied, 58 erally does not entertain a personal attack complaint where FCC 2d 691 (1976), aff©d in part and remanded in part on the complainant has not first contacted the station and other grounds sub nom., National Citizens Committee for afforded the station an opportunity to respond. Third, with Broadcasting v. FCC, 567 F. 2d 1095 (D.C. Cir. 1977), cert, respect to the contention that the allegedly inflammatory den., 436 U.S. 926 (1978). See also Amendment of Part 73 broadcasts on WQBA and WAQI incited "mob violence," of the Rules, Personal Attacks and Political Editorials, 8 FCC the Honig Letter found that the Commission was con 2d 721, 725 (1967). The Commission will not merely as strained, in light of First Amendment concerns, from tak sume that an alleged attack was made during a discussion ing action against the stations without a prior finding by of a controversial issue of public importance; rather, the local authorities that such broadcasts presented a "clear complaint must contain a clear statement of what issue was and present danger" to those allegedly attacked. being discussed when the attack was made and a specific 13. Miami Petitioners in seeking review contend first that showing that the issue is both controversial and a matter of the Honig Letter failed to recognize that the "issue of substantial, vigorous public debate. See Pacifica Foundation, Cuban-American relations" is "controversial" and an "issue 95 FCC 2d 750, 757 (1983); Roger Langley, 45 R.R.2d 1679, of public importance." Second, Miami Petitioners dispute 1681 (1979), citing Broadcast Procedure Manual, 49 FCC 2d that the targets of the alleged personal attacks must first 1, 6 (1974); Dontron, Inc., 6 FCC Red 2560, 2562 (MMB contact the stations before complaints would be considered 1991); Avery D. Post v. CBS, Inc., 55 R.R.2d 1361, 1363 by the Commission. Third, with respect to the incitement (MMB 1983), rev. denied, 55 R.R.2d 1357 (1984). More to violence complaint, they contend that the Commission over, the Commission has stated that, "an issue is not should not require that a local court make a determination necessarily a matter of significant ©public importance© that the referenced broadcasts did, in fact, constitute a merely because it has received broadcast or newspaper "clear and present danger" to those attacked before taking coverage." Fairness Doctrine and Public Interest Standards, action against the licensee. supra, 48 FCC 2d at 11. The Honig Letter also was correct 14. Discussion. We affirm the Honig Letter©s, and thus the in its holding that the Miami Petitioners failed to present Montero Letter©s, rejection of the Miami Petitioners© per evidence demonstrating the likely impact of the issue on sonal attack claims. Section 73.1920 of the Commission©s the Dade and Broward County community, an additional Rules provides that, "(w)hen, during the discussion of a requisite showing in connection with the "public impor controversial issue of public importance, an attack is made tance" element. Id. at 12. That the Miami Petitioners may upon the honesty, character, integrity, or like personal consider these aspects to be obvious does not excuse the qualities of an identified person or group," the licensee failure to make a specific showing as required under the must notify the subject(s) of the attack and afford them an rule. opportunity to respond on the station. However, as recog 16. In addition, even assuming that Miami Petitioners nized by the Court of Appeals for the District of Columbia had demonstrated that the broad, generalized issue of "Cu Circuit, ban-American relations" was a controversial issue of public importance, there was no showing that the alleged personal Both Fairness Doctrine and Personal Attack rule attacks actually took place during discussion of or in con complaints must present prima facie evidence of a nection with this issue. In this respect, we note that what violation before the Commission will require the Miami Petitioners claim is extensive evidence of personal broadcaster to respond. See American Security Coun attacks consists largely of broad allegations that such per cil Educational Foundation v. FCC, 607 F2d [438,] sonal attacks "regularly" take place, rather than detailed 445 [(D.C. Cir. 1979), cert, denied, 444 U.S. 1013 descriptions of specific attacks. For example, Exhibit 7 to the WQBA Petition to Deny consisted of a statement by Eloy Gutierrez Menoyo, the President of Cambio Cubano.

8 The Commission subsequently determined not to continue attack rule violations subsequent to the repeal of the Fairness enforcement of the Fairness Doctrine. Syracuse Peace Council v. Doctrine. See Letter from Dennis Patrick, FGC Chairman, to WTVH, 2 FCC Red 5043 (1987). aff©d, Syracuse Peace Council v. John Dingell, Chairman, House Comm. on Energy and Com FCC, 867 F.2d 654 (D.C. Cir. 1989), cert, denied, 493 U.S. 1019 merce, September 22, 1987, at p. 3. (1990). The Commission has continued to consider personal

9957 FCC 95-354 Federal Communications Commission Record 10 FCC Red No. 19

This statement asserts generally that since January 1993, political rivalry between different Cuban-American politi "radio stations WQBA and WAQI have permitted their cal organizations, with some discussion of the more conser principal spokesmen or other radio commentators ... to vative viewpoints generally espoused by WAQI and WQBA defame us personally, distort our points of view, and incite announcers on various issues of interest to the Cuban- terrorism and violence in our community, in fact classify American community. The only specific material in Mr. ing us as traitors." This statement also refers to a "recent Gomez©s statement that can be described as some sort of radio program" in which threats were allegedly made attack appears at page 3, wherein Mr. Gomez describes against Mr. Menoyo and against certain "members and broadcasts on WAQI related to a demonstration against sympathizers of ,Cambio Cubano . . . ." Such a broad, WAQI itself on March 17, 1993. Mr. Gomez claims that an non-specific allegation cannot support a personal attack announcer on WAQI stated that the Antonio Maceo Bri claim; a personal attack complaint must be supported, inter gade was "a group of individuals paid by the Castro regime alia, by evidence of the specific date and time of the attack, to come before our station and offices with signs dictated as well as evidence of the specific language used in the from ." However, there was no evidence presented attack and of the controversial issue of public importance here that demonstrates that this statement was made in the being discussed at the time the attack took place. See course of a discussion of a controversial issue of public Pacifica Foundation, 95 FCC 2d 750, 757 (1983); Broadcast importance.9 As noted above, it is the burden of the com Procedure Manual, supra, 49 FCC 2d at 6; Dontron, Inc., plainant to demonstrate that the alleged attack took place supra, 6 FCC Red 2560, 2562. Mr. Menoyo©s statement during such a discussion, and for this reason, there does lacks these necessary specifics, and indeed does not even set not appear to have been a violation of the personal attack forth which station carried this alleged attack. rule. 17. Similarly, Exhibit 8 to the WQBA Petition to Deny, 19. Additionally, we affirm the Honig Letter©s holding the statement of Francisco G. Aruca, contains the allega that Miami Petitioners© claim is undermined insofar as it tion that an announcer on WAQI (known as "Radio does not appear that any of the persons identified as targets Mambi") said that Mr. Aruca was a "motherless person," of personal attacks contacted the station to invoke their during a broadcast on September 4, 1993. However, even if rights under the personal attack rule. Generally, the Com this appellation were to be considered an attack, there is mission will not entertain a personal attack complaint lacking any description of the discussion surrounding this where the alleged target has not first contacted the station "attack" to establish that it took place during a discussion and afforded it the opportunity to respond. See Broadcast of a controversial issue of public importance. The other Procedure Manual, supra, 49 FCC 2d at 6. The station material quoted by Mr. Aruca from a WAQI broadcast on involved is in the best position to be aware of its broadcast March 17, 1993, consisted of a denunciation of opponents contents and may be able to demonstrate that the broad of WAQI/Radio Mambi as "work[ing] for the Castro re casts in question did not contain personal attacks as defined gime" and "representing] the worst in our society . . . ." by the rule or that the attack occurred during a kind of However, there is nothing in the quoted material that programming exempted from the rule. Alternatively, the names any specific persons or any identifiable group to station may decide that the complaint is valid and offer the which this denunciation was directed. The Commission has entity attacked reasonable opportunity to respond. The long held that the personal attack rule is only applicable Commission©s role upon receipt of a complaint is then to where the attack is directed to an identifiable person or judge the reasonableness of the station©s determination that group. See Fairness in Media, 58 R.R.2d 1633, 1635 (MMB a personal attack did not occur. See Averv D. Post v. CBS, 1985); Horace Rowley III, 69 FCC 2d 1047, 1048 (Broadcast Inc, supra, 55 R.R.2d 1357, 1360; Lynne Gordon, 67 FCC Bur. 1978); Diocese of Rockville Centre, 50 FCC 2d 330, 2d 27, 28 (Broadcast Bur. 1977). 331-332 (Broadcast Bur. 1974). Thus Mr. Aruca©s state 20. We also note that two of the three individuals who ment, even if it had been filed as a formal complaint claimed to be targets are not among the petitioners to deny against Station WAQI, would not describe a personal attack the application.©" The Commission has consistently held actionable under the rule. that a third party does not have standing to raise a personal 18. The third exhibit submitted by Miami Petitioners attack complaint against a station rather than the target of purporting to show a personal attack (Exhibit 9) consisted the attack himself. See American Legal Foundation, 58 of a statement by Andres Gomez, identified as the national R.R.2d 1287, 1289 (1985) ("[O|nly the person purportedly coordinator of the Antonio Maceo Brigade. The statement attacked has standing to file a personal attack complaint."); alleges attacks by announcers on WAQI against Mr. Gomez Dontron, inc., supra, 6 FCC Red at 2562 (The personal and the Antonio Maceo Brigade, but the bulk of Mr. attack rule was envisioned as a remedy for those attacked, Gomez©s statement consists of historical perspective on the not for use by unaffected third parties."). That these

9 It is not readily apparent, for example, whether the com views will arise." American Security Council Education Founda ments regarding the Antonio Maceo Brigade were made in a tion v. FCC, supra, 607 F. 2d 438, 450. The Court also observed discussion of "Cuban-American relations," the broad issue sug that "|a]n issue is not a ©particular, well-defined© issue for gested in the Application for Review, or on the more limited fairness doctrine purposes if the separate issues comprising it issue of the March 17, 1993, demonstration at the WAQI stu are so indirectly related that a view on one does not, in a way dios. With respect to the latter issue, it is certainly not self- that would be apparent to an average viewer or listener, support evident that this specific demonstration at WAOI©s studios on or contradict a view on any other." Id. at 450 n.38. March 17, 1993, was itself a controversial issue of public impor 10 Of the three individuals, Mr. Menoyo (Exhibit 7) is iden tance, and Miami Petitioners in their Petition to Deny have not tified as President of petitioner Cambio Cubano. However, as identified it as one. The D.C. Circuit Court of Appeals has noted above at paragraph 16, his statement alleging a personal noted that, "[a| relevant consideration in some cases may be attack is the least specific of the three, failing to identify any whether the component issues are controversial issues of public particular broadcast on a specific station or any specific lan importance. If they are not, no obligation to provide contrasting guage of such an alleged attack.

9958 10 FCC Red No. 19 Federal Communications Commission Record FCC 95-354 individuals supplied Miami Petitioners with statements re licensee had engaged in an incitement to riot, unless a garding these alleged attacks does not transfer standing to finding had first been made in state court that the licensee Miami Petitioners. See Fairness in Media, supra, 58 R.R.2d had been so convicted: at 1636 ("Although you state that FIM is ©working with Senator Jesse Helms,© Senator Helms, himself, has not filed We do not have the necessary information and exper a personal attack complaint."). tise to determine whether there has been a violation 21. With respect to the claim that announcers on WAQI of Kansas state law [regarding allegations of incite incited its listeners to riot on March 17, 1993, we affirm ment to riot through station broadcasts]. If there has the conclusions in both the Honig Letter and in the been a violation of state law, we would expect it to be Montero Letter that no violation of our rules has been litigated before state authorities, not the FCC. Of demonstrated. Section 326 of the Communications Act of course, we would take into account any final judg 1934, as amended, prohibits the Commission from censor ments of state law violations in our proceedings. .... ing broadcast material and from acts which interfere with free speech by broadcasters, a freedom also guaranteed by This Commission©s regulatory power with respect to the First Amendment to the Constitution. Although in analysis of "clear and present danger" allegations is fringements may be justified in exceptional situations un also circumscribed. As a national, administrative der the public interest standard of the Communications body, our review is removed both in time and prox Act, i.e., broadcasts which are found to create a "clear and imity from the events precipitating these complaints. present danger of serious substantive evil that rises above As noted below, the Supreme Court case law on this public inconvenience, annoyance or unrest," Anti-Defama issue is specific in that it requires judgment on not tion League of B©nai B©rith, 4 FCC 2d 190, 191 (1966), aff©d only the content of the speech, but also the context in sub nom. Anti-Defamation League of B©nai B©rith v. FCC, which it is heard. We believe that separate and 403 F.2d 169 (D.C. Cir. 1968), cert, denied, 394 U.S. 930 searching study of these two crucial matters is most (1969), quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949), appropriately performed by the local authorities un the Miami Petitioners© case is lacking in this regard. Com der the auspices of applicable state and federal law. mission action in response to an allegation that a broadcast We are, therefore, disposed to give significant note should be characterized as an "incitement" to violence or and deference to the factual judgments made by them illegal action meeting the "clear and present danger" test is in these cases. limited to situations where a local court of competent jurisdiction has made such a determination. See Cattle 58 FCC 2d at 1113 (emphasis in original). While the Country Broadcasting, 58 R.R.2d 1109, 1113 (1985); see also Kansas Attorney General was made a party to the renewal Brandenburg v. Ohio ("Brandenburg"), 395 U.S. 444, 447 hearing that was designated on other grounds, that partici (1969) (speech becomes illegal advocacy when "directed to pation was specifically for the purpose of reporting if a inciting or producing imminent lawless action and is likely conviction of the station owners on incitement to riot to incite or produce such action."). This aspect of the test charges later resulted from the ongoing criminal prosecu requires a court to "make its own inquiry into the im tion/ 1 Id. minence and magnitude of the danger said to flow from 24. Miami Petitioners© reliance on Columbus Broadcast the particular utterance and then to balance the character ing Co., 40 FCC 641 (1965), is also misplaced. In that case, of the evil, as well as its likelihood, against the need for the Commission, after a preliminary inquiry into whether free and unfettered expression." Landmark Communica the station had broadcast a call for listeners to appear at tions, Inc. v. Virginia, 435 U.S. 829, 843 (1975). the entrance to the University of Mississippi where James 22. Under Brandenburg, any determination that particu Meredith was to enroll as the first African-American stu lar speech poses a "clear and present danger of serious dent there, concluded that "we do not believe it appro substantive evil" presupposes a familiarity with the cir priate to delve into this sensitive area," citing a then-recent cumstances, issues, and concerns of the community where Supreme Court First Amendment decision, and granted the such speech was heard, a familiarity which the Commis station©s renewal without further question. Id. at 643. sion, in most cases, does not have and cannot practically 25. The staffs treatment of the incitement to violence obtain. Local authorities responsible for keeping the peace allegations in the present case is completely consistent with and enforcing the law are better positioned to know and the Commission©s prior decisions . Insofar as Miami Peti assess the specific and unique circumstances in the Miami tioners have not pointed to a determination by local community and, thus, to determine whether the Bran authorities that the referenced broadcasts did, in fact, pose denburg test has been met. a "clear and present danger" to those allegedly attacked, in 23. Miami Petitioners© reliance on Columbus Broadcast violation of local law, the Commission is not inclined to ing Co., 40 FCC 631 (1965), and Cattle Country act. In this regard, we agree with the conclusion set forth Broadcasting, supra, 58 R!R.2d 1109, to dispute the holding in the Montero Letter that the "After Action Report" of the that the Commission must rely on adverse findings by local Miami Police Department dated March 18, 1993, falls short authorities as to the existence of a "clear and present of a specific official finding that a broadcast by WAQI danger" is misplaced. In Cattle Country, the Commission posed a "clear and present danger." The "After Action specifically refused to designate an issue as to whether the Report" is the Police Department©s administrative report summarizing expenditures in connection with police re-

11 It should be noted that Cattle Country predated the Commis Qualifications in Broadcast Licensing, 102 FCC 2d 1179, recon. sion©s decision not to take cognizance of non-FCC related granted in part, denied in pan, 1 FCC Red 421 (1986), modified, misconduct until there had been a final adjudication of the 5 FCC Red 3252 (1990). allegations in an appropriate forum. Policy Regarding Chartacter

9959 FCC 95-354 Federal Communications Commission Record 10 FCC Red No. 19 sponse to the March 17, 1993, demonstration outside WAQI©s studio discussed above. That Report, while rec ommending that the city consider filing an action against WAQI to recover the costs of police deployment, does not include a conclusion or finding that WAQI broadcast in flammatory remarks or otherwise acted in an irresponsible manner. 12 We therefore affirm the Bureau©s rejection of these allegations in the Honig Letter and in the Montero Letter. 26. Accordingly, IT IS ORDERED that the Application for Review filed September 9, 1994, by Cambio Cubano, Professionales y Empressarios Cubano Americanos (Peca/Cape), and Sepia Fine Graphic Arts, Inc. d/b/a/ Contrapunto Magazine IS DENIED; that the Application for Review filed June 5, 1995, by Cambio Cubano, Professionales y Empressarios Cubano Americanos (PECA/CAPE), and Sepia Fine Graphic Arts, Inc. d/b/a/ Contrapunto Magazine IS DENIED; that the grant of the application for transfer of control of Spanish Radio Net work, licensee of Stations WQBA(AM) and WQBA(FM), Miami, Florida, WGLI(AM), Babylon, New York, and WADO(AM), New York, New York, from Mark Blank, Tony Blank, Herbert M. Levin, Robert Frehling, Russell Frehling, Kathy Kramer, and Broadcast Holdings, Inc., to HBC Florida, Inc., IS AFFIRMED; and that the grant of the applications for transfer of control of Licensee Cor poration #1, licensee of Station WAQI(AM), Miami, Flor ida, and of Licensee Corporation #2, licensee of Station WRTO(FM), Goulds, Florida, IS AFFIRMED.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

12 As noted in the Montero Letter at page 6, the transcripts of and restraint among the protesters. See Attachment A to WAQI©s broadcasts on March 17, 1993, in connection with the Heftel©s Motion to Dismiss filed October 12, 1994, in the demonstration do not in substance show an incitement to vio WAQ1/WRTO proceeding. lence, but rather tend to show that WAQI personnel urged calm

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