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Lerman, Esq. Leventhal, Senter & Lerman Suite 600 2000 K Street, N.W. Washington, D.C. 20006 Bruce E. Rosenblum, Esq. Latham & Watkins 1001 Pennsylvania Ave., N.W. Suite 1300 Washington, D.C. 200042505 Ernest T. Sanchez, Esq. Baker & McKenzie 815 Connecticut Ave., N.W. Suite 900 Washington, D.C. 20006 Roger C. Stern Kahn, Stern, Blaney & Kittrell Suite 100, The Airport Center 5959 West Century Blvd. Los Angeles, CA 90045 Donald E. Wildmon, President American Family Association Post Office Drawer 2440 Tupelo, MS 38803 d44  <<,TIn re: KRTH(FM), Los Angeles, CA  rVv$<d   <<,TDD| Assignment of License  rV>%<d   <<,TDD| BALH930618GE Dear Counsel and Mr. Wildmon:   This is in reference to the abovecaptioned application for consent to assign the"&)0*0*0*G1" license for KRTH(FM), Los Angeles, California, from Beasley FM Acquisition Corp. ("Beasley") to Infinity Broadcasting Corp. of California ("Infinity"). On August 5, 1993, Americans for Responsible Television ("ART") filed a pleading styled as  rVX<a "petition to deny" the assignment application.NX& s4- x: -ԍ Infinity and Beasley filed separate oppositions on August 16, 1993, and ART filed a consolidated reply on August 23, 1993. Informal objections were filed on July 14, 1993 and November 24, 1993 by Diane Vudmaska and the American Family  rV<Association ("AFA"), respectively.N& s4V- x: -ԍ Beasley responded to Ms. Vudmaska's informal objection on September 30, 1993. As an initial matter, the informal objection filed by Ms. Vudmaska consists of a copy of a civil lawsuit alleging that the termination of her employment at the station without good cause resulted in a breach of contract and a breach of covenant of good faith and fair dealing. This action, filed in the Superior  rV<Court, County of Los Angeles, California is entitled Diane Vudmaska v. Beasley FM  rV` <Acquisition, dba KRTH, a division of Beasley FM Acquisition. The Commission has consistently held that it is not the proper forum for resolving such private disputes, and that redress should properly be sought in local courts of competent  rV <jurisdiction. John R. Runner, Receiver (KBIF), 36 RR 2d 773, 778 (1976); Decatur  rV <Telecasting, Inc., 7 FCC Rcd 8622, 8624 (1992); Listener's Guild, Inc. v. FCC, 813 F. 2d 465, 469, 62 RR 2d 866, 870 (D.C. Cir. 1987). Accordingly, we will deny Ms. Vudmaska's objection. With respect to the ART "petition to deny," we note that ART failed to supply an affidavit of any person with personal knowledge attesting to ART's claim to be a party in interest or to the facts alleged in the pleading. Accordingly, the ART pleading does not meet the procedural requirements for a petition to deny imposed by Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1). Nevertheless, we will treat ART's "petition" as an informal objection pursuant to Section 73.3587 of the Commission's rules. In its informal objection, ART argues that the Commission should deny the abovereferenced application on two grounds. First, ART avers that Infinity's "pattern of repeated violations of Commission indecency standards" make Infinity an unfit  rV8<licensee.N8& s4- x-ԍ The informal objection filed by AFA raises the same argument. Accordingly, we will address the argument as it was presented by ART. Second, ART states that Infinitycontrolled stations continued to broadcast indecent material in violation of the indecency statute, 18 U.S.C. Section 1464, even after the Commission issued a December 18, 1992 Notice of  rV<Apparent Liability (NAL), Infinity Broadcasting Corporation, 8 FCC Rcd 2688 (1992), to Infinity for apparent violation of the indecency standard. To support its first argument, ART provides copies of Commission NAL's previously issued against Infinity for indecency violations. ART states that the NAL issued on December 18, 1992 proposed a forfeiture amount of $600,000, the highest amount ever proposed by the Commission. ART argues that, since the courts have upheld  rV <the Commission's authority to enforce the indecency proscription,N & s4(- xh-ԍ ART cites FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Action for  s4I)-Children's Television v. FCC, 852 F. 2d 1332 (D.C. Cir 1988). the Commission's previous determinations demonstrate that grant of the instant"  ***`'" assignment application would not be in the public interest. In support of its second argument, ART includes transcripts of the January 4 through January 13, 1993 and June 4, 1993 broadcasts of the Howard Stern Show by Infinitycontrolled stations. These transcripts were contained in complaints dated March 10, 1993 and June 7, 1993 which were filed with the Commission by Mr. Al Westcott. ART argues that these transcripts demonstrate that Infinitycontrolled stations continue to violate the indecency standard. ART also cites language from the December 18, 1992 NAL issued to Infinity stating that any future failure on the part of Infinity or its subsidiaries to comply with the indecency proscription will result in further appropriate enforcement actions. ART argues that denial of the instant application is such an appropriate action because the transcripts contained in its informal objection demonstrate that Infinity has continued to violate 18 U.S.C. Section 1464. ART's informal objection concludes that Infinity has not attempted to comply with the law and posits that Infinity views indecency fines merely as a cost of doing business. Infinity's opposition states that the "petition" has no merit, that ART has distorted Infinity's record as a licensee and that the Commission's recent grant of assignment applications to Infinity show that the Commission has determined that it is fit to be a licensee. Further, Infinity argues that Section 504(c) of the Communications Act precludes the Commission from considering pending NAL's in  rV0<this proceeding. 0 / s4- x-ԍ Additionally, in its opposition, Infinity claims that ART engaged in a  s4/- x-prohibited ex parte communication with decision making personnel during a  x -restricted proceeding, in violation of Section 1.1208 of the Commission's rules.  x-To support that claim, Infinity provides the Declaration of Elaine R. Baker  x-stating that on August 6, 1993 (the day after the "petition" was filed) she  x-attended a Michigan Association of Broadcasters reception and "roast" for  xg -Commission Chairman James Quello at which she heard Ms. Terry Rakolta (Director  xg -of ART) say to Chairman Quello, "KEarth," and immediately thereafter, "How can  xg -you let them buy it?" Ms. Baker states that she did not hear any response from  x-Chairman Quello to Ms. Rakolta's statement. ART's reply provides an affidavit  x -from Ms. Rakolta unequivocally denying Ms. Baker's assertion on this matter, and  x -averring that Ms. Baker was mistaken in what she thought she heard. In light of  x-this denial and the hearsay character of the allegations, we find the evidence  x-insufficient to raise a substantial and material question as to whether ART  s4-violated the Commission's ex parte rule, 47 C.F.R. Section 1.1208. In support of its contention that ART's informal objection is without merit, Infinity contends that ART has distorted its record of compliance with the Commission's rules. Rather than the "substantial record of FCC violations and fines" that the informal objection attributes to Infinity, the proposed assignee argues that in its twenty year history as a broadcast licensee it has had only one forfeiture actually levied against it, for $6,000 with respect to a December 1988 broadcast. Infinity states that action is not yet final because, on June 21, 1993, it filed a petition for reconsideration of an earlier denial of a  rV<petition for reconsideration, Sagittarius Broadcasting Corp., 8 FCC Rcd 3600  rV<(1993).NY / s4&- x-ԍ The latter petition for reconsideration has since been denied by the  s4X'-Commission. Sagittarius Broadcasting Corp., 8 FCC Rcd 7975 (1993). Infinity further faults ART for ignoring what Infinity considers to be its exemplary record of contributions to the communities served by its stations. "o **)*)" In support of this contention, Infinity provides numerous letters written by charitable and community organizations in appreciation of various efforts of Infinitycontrolled stations on their behalf.  j(HJ Next, Infinity argues that the Commission's grant of recent assignment of license  rV<applications to Infinity / s4@- x: -ԍ Infinity cites to 8 FCC Rcd 2714 (1992) (granting assignment of license  xg -applications to Infinity for stations WZGC(FM), Atlanta, GA, WUSN(FM), Chicago,  x-IL and WZLX(FM), Boston, MA), as well as to the August 12, 1993 grant of assignment of license of station WIP(AM), Philadelphia, PA, to Infinity.  is evidence that the Commission has determined that Infinity is fully qualified to be a licensee. Moreover, Infinity cites the  rVx<Commission's August 12, 1993 NAL,ix, / s44 -ԍ Infinity Broadcasting Corporation, 8 FCC Rcd 6740 (1993).i issued to Infinity for apparent indecency violations during broadcasts aired in November and December 1992 and January 1993, stating that, "our records reflect that no other actionable indecency complaints have been filed against Infinity or the 'Howard Stern Show' [as of the date of the NAL]," as evidence that material included in the informal objection has been found by the Commission to be not actionably indecent. Finally, Infinity argues that Section 504(c) of the Communications Act precludes the Commission from considering pending NAL's or a nonfinal forfeiture order based  rV <on an NAL to Infinity's detriment in this proceeding.Q 8  / s4-ԍ Section 504(c) states:  x-In any case where the Commission issues a notice of apparent liability looking  x,-toward the imposition of a forfeiture under this Act, that fact shall not be  x,-used, in any other proceeding before the Commission, to the prejudice of the  xg -person to whom such notice was issued, unless (i) the forfeiture has been paid,  x9!-or (ii) a court of competent jurisdiction has ordered payment of such forfeiture, and such order has become final.Q Beasley's opposition offers three arguments for the Commission to deny the informal objection and grant the assignment application. First, Beasley asserts that the instant proceeding is not the appropriate forum for adjudicating indecency complaints involving broadcasts by other stations owned by Infinity. Second, Beasley states that denial of this application would unfairly penalize Beasley for activities of Infinity stations which are unrelated to station KRTH(FM). Finally, Beasley argues that the issues raised in the informal objection are moot because the Commission's August 12, 1993 NAL issued to Infinity states that the monetary forfeiture therein being imposed on four Infinity stations would "adequately address the apparent indecency violations resulting from the broadcasts" considered by the Commission. In its consolidated reply, ART denies that its informal objection distorted Infinity's record of compliance with Commission rules and states that differing methods of defining and computing previous violations can result in differing totals to describe the number of previous violations. Additionally, ART states that it did not ignore positive aspects of Infinity's record of compliance and of service to the community; rather it contends that such considerations may be appropriately considered if and when the application is designated for hearing, but are premature at this stage of the proceeding. "  **)*)!"ԌART also contends that Section 504(c) of the Communications Act serves only to  rV<prevent the use of an unpaid NAL as prima facie evidence against a licensee, but that it does not bar a hearing under Section 309(e) of the Act if a substantial and material question of fact has been raised as to whether grant of this assignment application would serve the public interest, convenience and necessity. ART asserts that its informal objection has raised such substantial and material questions of fact. Further, ART states that Beasley's argument that it would be unfairly penalized by denial of this application is without merit. In support of this assertion, ART argues that the subject application is distinguishable from the recently approved assignment of three radio stations  rV<from Cook Inlet Radio License Partnership, L.P. to Infinity, in which the  rV<Commission articulated a desire to not penalize the innocent assignor.r  / s4 -ԍ Cook Inlet Radio License Partnership, L.P., 8 FCC Rcd 2714 (1992).r ART asserts that the earlier assignments are distinguishable because Infinity had stated that it would not broadcast the Howard Stern Show on the stations it obtained from Cook Inlet. Finally, ART argues that the issues raised in its informal objection have not been rendered moot by either the August 12, 1993 NAL issued to Infinity or the grant of the assignment of license of station WIP(AM) to Infinity. We will deny AFA's and ART's objections. First, the Commission has fully considered the pattern of apparent misconduct cited in its December 1992 NAL issued to Infinity and determined that the subject conduct did not disqualify Infinity as a licensee. Specifically, on December 18, 1992, the Commission approved the assignment of licenses of stations WZGC(FM), Atlanta, Georgia; WUSN(FM), Chicago, Illinois; and WZLX(FM), Boston, Massachusetts, to Infinity. In taking this action, the Commission determined that Infinity was qualified to hold broadcast licenses notwithstanding the apparent misconduct which the  rV<Commission had concurrently noted in the December 1992 NAL. See Cook Inlet Radio  rV<License Partnership, L.P., 8 FCC Rcd 2714 (1992). Accordingly, the objectors' contention that the apparent pattern of Infinity misconduct reflected in the December 1992 NAL raises a substantial and material question of fact concerning Infinity's basic qualifications is moot. We also find moot ART's contention that certain conduct by Infinity subsequent to the apparent violations detailed in the December 1992 NAL demonstrates a continued and disqualifying disregard for Commission rules. Specifically, the Howard Stern broadcast on January 13, 1993, upon which ART partly relies, was fully addressed by the Commission in an NAL issued to Infinity on August 12, 1993. Therein the Commission carefully evaluated the nature and extent of the programming at issue as well as relevant mitigating circumstances and concluded  rV@<that "a monetary forfeiture will adequately address the apparent indecency  rV <violations resulting from the broadcasts. . . ." Infinity Broadcasting  rV <Corporation, 8 FCC Rcd 6740, 6741 (1993). Moreover, based on this determination, the staff, on August 12, 1993, approved the assignment of license of WIP(AM),  rV`"<Philadelphia, Pennsylvania, to Infinity.E `"7 / s4'&- x -ԍ ART contends that its petition is not mooted by the Commission's prior  x-decisions involving Infinity because "NALs under  503 and administrative  xZ-sanctions under  312 are different and independent enforcement mechanisms  x-available to the Commission, as is the Commission's authority to hold hearings"( **)*)("  x9!-and make findings under  309." Whatever the merit of this asserted distinction,  x-the decisions noted above approving the sale of Cook Inlet's stations and the  xg -sale of WIP(AM) to Infinity reflect express determinations under  309 that the  x-assignments of licenses sought in the underlying applications raised no  x,-substantial and material question of fact and that grant of the applications  s4- x-would serve the public interest, convenience and necessity. See 47 U.S.C.  308, 309 and 310.E With respect to the June 4, 1993"`"! **)*)@)" Howard Stern broadcast, which was the subject of an indecency complaint filed by Mr. Al Westcott, the staff has dismissed the complaint on the grounds that the  rV<material involved was not actionably indecent.e ! / s4A -ԍ See Letter to Al Westcott (September 13, 1993).e  rV <The Commission is aware of six further indecency complaints filed against material aired during the Howard Stern show as broadcast by either Infinityowned stations or by stations carrying the Howard Stern show by contractual arrangement  rVx<with Infinity. x / s4- x-ԍ Five of these complaints, as detailed below, were filed by Mr. Al Westcott: X` hp x (#%'0*,.8135@8: