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 -ii- 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 -iii- 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. -iv- 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 -v- 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 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