For FCC Record Only $//KRTH(FM), Los Angeles, CA, By Direction Ltr, FCC 94-24//$ $/73.3540 Assignment of License, Granted /$ $/400.18.1464 Indecent Broadcasts/$ Before the FEDERAL COMMUNICATIONS COMMISSION FCC 94-24 WASHINGTON, D,C. 20554 January 31, 1994 IN REPLY REFER TO: 1800B3-BSH Steven A. 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. 20004-2505 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 In re: KRTH(FM), Los Angeles, CA Assignment of License BALH-930618GE Dear Counsel and Mr. Wildmon: This is in reference to the above-captioned application for consent to assign the 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 a "petition to deny" the assignment application. Informal objections were filed on July 14, 1993 and November 24, 1993 by Diane Vudmaska and the American Family Association ("AFA"), respectively. 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 Court, County of Los Angeles, California is entitled Diane Vudmaska v. Beasley FM 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 jurisdiction. John R. Runner, Receiver (KBIF), 36 RR 2d 773, 778 (1976); Decatur 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 above- referenced application on two grounds. First, ART avers that Infinity's "pattern of repeated violations of Commission indecency standards" make Infinity an unfit licensee. Second, ART states that Infinity-controlled 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 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 the Commission's authority to enforce the indecency proscription, 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 Infinity-controlled 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 Infinity- controlled 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 this proceeding. 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 petition for reconsideration, Sagittarius Broadcasting Corp., 8 FCC Rcd 3600 (1993). Infinity further faults ART for ignoring what Infinity considers to be its exemplary record of contributions to the communities served by its stations. In support of this contention, Infinity provides numerous letters written by charitable and community organizations in appreciation of various efforts of Infinity-controlled stations on their behalf. Next, Infinity argues that the Commission's grant of recent assignment of license applications to Infinity is evidence that the Commission has determined that Infinity is fully qualified to be a licensee. Moreover, Infinity cites the Commission's August 12, 1993 NAL, 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 non-final forfeiture order based on an NAL to Infinity's detriment in this proceeding. 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. ART also contends that Section 504(c) of the Communications Act serves only to 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 from Cook Inlet Radio License Partnership, L.P. to Infinity, in which the Commission articulated a desire to not penalize the innocent assignor. 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 Commission had concurrently noted in the December 1992 NAL. See Cook Inlet Radio 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 that "a monetary forfeiture will adequately address the apparent indecency violations resulting from the broadcasts. . . ." Infinity Broadcasting 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), Philadelphia, Pennsylvania, to Infinity. 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 material involved was not actionably indecent. The Commission is aware of six further indecency complaints filed against material aired during the Howard Stern show as broadcast by either Infinity-owned stations or by stations carrying the Howard Stern show by contractual arrangement with Infinity. We have carefully reviewed these complaints and determined that the material cited in them is, for the most part, not actionably indecent under existing Commission criteria. We are today issuing a Notice of Apparent Liability to Infinity in the aggregate amount of $400,000 with respect to the remaining material that we have concluded does fall within our definition of indecent broadcast programming. We are aware that we have previously indicated that Infinity's continuing course of apparent misconduct in this area is troubling and that further violations might provoke more stringent penalties than monetary forfeitures. See, e.g., Infinity Broadcasting Corporation, 8 FCC Rcd 6740, 6741 (1993). We conclude, however, that such action is not warranted at this time. Recently, the Court of Appeals for the District of Columbia Circuit in Action For Children's Television v. FCC, Case No. 93-1092 (D.C. Cir. Nov. 23, 1993) (ACT III) directed the Commission to conduct further proceedings as to various aspects of our indecency enforcement program. Although we do not read the Court's decision to restrict our ability to enforce against broadcast indecency, except with regard to the Midnight to 6:00 a.m. safe-harbor period, we recognize that the opinion has raised issues regarding our enforcement program that can most appropriately be addressed in a rulemaking proceeding. Accordingly, we will exercise our discretion, at this time, to limit our response to these latest broadcasts to monetary forfeitures. Having fully considered the allegations and contentions presented in AFA's and ART's informal objections, we find that no substantial and material question of fact has been raised with respect to Infinity's qualifications to be or to remain a Commission licensee. We further find that grant of the above-referenced application will serve the public interest, convenience and necessity. This action is without prejudice to any actions the Commission may deem appropriate should Infinity broadcast indecent material in the future. Accordingly, the petition to deny filed by Americans for Responsible Television IS HEREBY DISMISSED and, when considered as an informal objection, IS HEREBY DENIED, the informal objections filed by the American Family Association and Diane Vudmaska ARE HEREBY DENIED, and the above-referenced application, BALH- 930618GE, IS HEREBY GRANTED. This letter was adopted by the Commission on January 31, 1994. BY DIRECTION OF THE COMMISSION* William F. Caton Acting Secretary Attachments *Chairman Hundt not participating; Commissioner Quello dissenting and issuing a statement; Commissioner Duggan issuing a statement.