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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
CAPSTAR TX LIMITED PARTNERSHIP ) File No. EB-03-IH-0483 et
Licensee of Station WDCG(FM), ) Facility ID # 53597
Durham, North Carolina )
CITICASTERS LICENSES, L.P. )
) File No. EB-03-IH-0487 et
Licensee of Station WMJI(FM), ) al.
Cleveland, Ohio ) Facility ID # 73268
AMFM TEXAS LICENSES LIMITED )
) File No. EB-03-IH-0488 et
Licensee of Station KLOL(FM), ) al.
Houston, Texas ) Facility ID # 35073
MEMORANDUM OPINION AND ORDER
Adopted: June 24, 2004
Released: June 25, 2004
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, we deny
complaints filed against the above-captioned licensees, all
of which are subsidiaries of Clear Channel Communications,
Inc. (``Clear Channel''), for broadcasting certain comments
by radio station hosts and callers, which allegedly would
lead to violence by automobile drivers against bicyclists.
In view of the freedom accorded broadcasters by the First
Amendment,1 as interpreted by the courts and the Commission,
and section 326 of the Communications Act of 1934, as
amended (the ``Act''),2 and consistent with Commission
precedent regarding this kind of commentary, we conclude
that the comments do not merit enforcement action in the
absence of an adjudication of a ``clear and present danger''
by a court of competent jurisdiction.
2. Over the course of several months, beginning in
July 2003, the Commission received complaints that the
above-captioned stations had broadcast material that
encouraged listeners to harass and/or physically harm
bicyclists. Specifically, by letter dated July 2, 2003, a
complainant alleged that, during the Walton and Johnson
Show, Station KLOL(FM) broadcast material that advocated
that automobile and truck drivers hit and seriously injure
bicycle riders. Similarly, by letter dated July 18, 2003, a
complainant alleged that, in June and July 2003, on-air
talent at Station WMJI(FM) encouraged their listeners to
pull around bicycles and slam on the brakes, pass bicyclists
and then open the passenger door and slam on the brakes, and
throw things and shout curses at bicyclists.3 Finally, by
letter dated September 29, 2003, a complainant alleged that,
on September 22 and 23, 2003, Station WDCG(FM) aired
comments from hosts and callers during the Bob and Madison
Show, which expressed contempt for law-abiding bicyclists
and suggested that motorists run them off the road or throw
bottles at them. Similar complaints followed.
3. By letters to the licensees of the three captioned
stations dated January 26, 2004, the Enforcement Bureau's
Investigations and Hearings Division directed that each
licensee state whether it had broadcast language
``advocating violence toward bicyclists,'' whether the
licensee was a party to any criminal or civil litigation
regarding any such broadcast, and, if so, to provide
information relating to such litigation's status.4 The
Division's letters also directed that the licensees provide
copies and transcripts of any recordings of the subject
4. By letters dated March 5, 2004, Clear Channel, on
behalf of the three licensees, responded to the Division's
inquiries.5 Clear Channel represents that none of the three
stations ``broadcast language advocating violence toward
bicyclists,'' and that none of the licensees was then or had
been a party to any criminal or civil litigation involving
the broadcasts.6 Finally, in light of the remedial actions
that it took subsequent to the broadcasts in question in
response to listener complaints, Clear Channel contends that
it resolved the matter to the satisfaction of all involved
months before its responses to the Commission.7
5. Specifically, regarding the complaints lodged
against Station WDCG(FM), Clear Channel provides compact
discs and transcripts of relevant portions of the September
22 and 23, 2003 Bob and Madison Show. Clear Channel submits
that the material did not advocate violence and notes that,
in fact, one of the co-hosts repeatedly cautioned against
committing acts of violence against bicyclists.8 In any
event, Clear Channel states that, in response to complaints
that it received about the show, between October 6 and
December 2003, it aired on its five Raleigh-Durham area
stations more than 1,200 bicycling safety public service
announcements, the text of which it prepared in conjunction
with the North Carolina Division of Bicycles and Pedestrian
Transportation.9 Station WDCG(FM) also aired an apology
during the Bob and Madison Show and suspended the co-hosts
for two days.10
6. Concerning the programming aired over Station
WMJI(FM), Clear Channel provides compact discs and
transcripts of the relevant portions of the June 30 and July
1-3 and 7-8, 2003 Lanigan and Malone Show. Clear Channel
maintains that the material did not advocate violence
against bicyclists and that the show's personalities
repeatedly stated that they do not condone or mean to
encourage such violence.11 Clear Channel also contends that
discussions that it aired contained the opinions of callers
and e-mailers, including bicycle advocates.12 In addition,
Clear Channel notes that, in response to concerns about the
broadcasts that it received from members of the bicycling
community, it aired, over a week, approximately 300 public
service announcements over its six Cleveland-area radio
stations.13 Finally, Clear Channel states that members of
the Lanigan and Malone Show issued an on-air apology.14
7. Finally, with respect to the material broadcast
over Station KLOL(FM), Clear Channel's Houston Director of
Rock Programming, Vince Richards, states in a Declaration
executed under penalty of perjury that the station records
its programming on digital audio tapes, which are recycled
every few days by recording over the old material unless the
material is saved for a ``best of'' show.15 Mr. Richards
states his belief that the complaints pertain to the June
27, 2003 Walton and Johnson Show, which he and several other
members of station management listened to because it had
generated some public comment.16 He acknowledges that,
during the broadcast, one of the on-air personalities, John
Walton, expressed frustration with bicyclists riding in the
roadway.17 Mr. Richards relates that, although station
management had asked the show's producer not to save the
material for future use, it was saved and aired again on
September 2, 2003 during a Best of the Walton and Johnson
Show. Mr. Richards acknowledges that the September
broadcast also generated public comment. Mr. Richards
states that, following that broadcast, the station fired the
program's producer and recycled the tape containing the
programming. He indicates that station management directed
cast members of the Walton and Johnson Show to issue several
on-air apologies.18 In addition, according to Mr. Richards,
all eight of Clear Channel's Houston-area stations are
conducting an ongoing bicycle awareness/safety public
service campaign. Since October 1, 2003, the stations have
aired about 100 public service announcements per month about
bicycle safety, which are coordinated with the Houston
Police Department Bike Force. Mr. Richards concludes that
Clear Channel has posted on each of eight area station
websites a link to a Bicycle Safety Habits fact sheet, which
contains a link to the City of Houston Bicycle Program.19
8. The Federal Communications Commission is
authorized to license radio and television broadcast
stations to serve the public interest and is responsible for
enforcing the Commission's rules and applicable statutory
provisions concerning the operation of those stations.
However, the Commission's role in overseeing program content
is very limited. The First Amendment and section 326 of the
Act prohibit the Commission from censoring program material
and from interfering with broadcasters' freedom of
expression.20 There is no statutory provision or Commission
rule that directly prohibits the complained-of broadcasts.
Consequently, the only question before us is whether the
broadcasts raise a substantial question about the licensees'
9. In light of Commission precedent on point, we find
that no question regarding the licensee's basic
qualifications is raised. In addressing allegations similar
to the ones now before us, the Commission has stated:
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. See
Cattle Country Broadcasting, 58 R.R.2d 1109, 1113
(1985); see also Brandenburg v. Ohio,
(``Brandenburg''), 395 U.S. 444, 447 (1969)
(speech becomes illegal advocacy when ``directed
to inciting or producing imminent lawless action
and is likely to incite or produce such
action.''). This aspect of the test requires a
court to ``make its own inquiry into the imminence
and magnitude of the danger said to flow from the
particular utterance and then to balance the
character of the evil, as well as its likelihood,
against the need for free and unfettered
expression.'' Landmark Communications, Inc. v.
Virginia, 435 U.S. 829, 843 (1975).
... Under Brandenburg, any determination that
particular speech poses a ``clear and present
danger of serious substantive evil'' presupposes a
familiarity with the circumstances, issues, and
concerns of the community where such speech was
heard, a familiarity which the Commission, in most
cases, does not have and cannot practically
obtain. Local authorities responsible for keeping
the peace and enforcing the law are better
positioned to know and assess the specific and
unique circumstances in the ... community and,
thus, to determine whether the Brandenburg test
has been met.''21
10. The information before us reflects that no local
court of competent jurisdiction has found that any of the
material aired over the captioned stations, which is the
subject of the instant complaints, met the ``clear and
present danger'' test. Indeed, so far as we know, no civil
or criminal action of any kind has been brought against any
of the licensees for the complained-of broadcasts.22
Viewing these circumstances in light of the Commission's
clear directive (quoted above) regarding treatment of
broadcast speech that allegedly advocates or incites
violence, we conclude that no substantial question exists
about the licensees' qualifications and that initiation of a
revocation proceeding is not warranted.
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED, pursuant to section
0.111(a)(11) and 0.311 of the Commission's rules,23 that the
above-described complaints filed against the licensees of
Stations WDCG(FM), WMJI(FM), and KLOL(FM) are hereby DENIED.
12. IT IS FURTHER ORDERED, that a copy of this
Memorandum Opinion and Order be sent by first class mail to
each of the complainants for which the Commission has a
return address and to Richard W. Wolf, Clear Channel
Communications, Inc., 200 East Basse Road, San Antonio,
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 U.S. CONST., amend. I.
2 47 U.S.C. § 326 provides: ``Nothing in this Act 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.''
3 One such complainant also alleged a violation of the
Commission's Personal Attack Rule (former section 73.1920
of the Commission's rules) as a result of her treatment
during an on-air conversation with station personnel of the
Lanigan and Malone Show, which occurred on July 3, 2003.
However, because the Commission repealed that rule on
October 26, 2000 (see Repeal of Modification of the
Personal Attack and Political Editorial Rules, 15 FCC Rcd
20697 (2000)), we will not discuss this matter further.
4 Letter from Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, to Capstar TX Limited
Partnership, dated January 26, 2004 (WDCG(FM)); letter from
Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, to Citicasters Licenses, L.P., dated
January 26, 2004 (WMJI(FM)); letter from Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
to AMFM Texas Licenses Limited Partnership, dated January
26, 2004 (KLOL(FM)).
5 Letter from Richard W. Wolf, Vice President, Clear
Channel Communications, Inc. to Marlene H. Dortch,
Secretary, Federal Communications Commission, dated March
5, 2004 (``WDCG(FM) letter''); letter from Richard W. Wolf,
Vice President, Clear Channel Communications, Inc. to
Marlene H. Dortch, Secretary, Federal Communications
Commission, dated March 5, 2004 (``WMJI(FM) letter'');
letter from Richard W. Wolf, Vice President, Clear Channel
Communications, Inc. to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated March 5, 2004
6 WDCG(FM) letter, supra note 5 at 1; WMJI(FM) letter,
supra note 5 at 1; KLOL(FM) letter, supra note 5, at 1.
7 E.g., id. at 2.
8 WDCG(FM) letter, supra note 5 at 1.
9 Id. at 2.
10 Id. at 2. Clear Channel also notes that John Hogan,
President and CEO of Clear Channel Radio, met with Elissa
Margolin, Executive Director of the League of American
Bicyclists to discuss ways in which Clear Channel could
work with the bicycling community to promote safe
bicycling. Clear Channel relates that, subsequently, Ms.
Margolin issued a statement noting that ``[t]he League is
pleased with the response from Clear Channel Radio.'' Id.
11 WMJI(FM) letter, supra note 5, at 1-2.
12 Id. at 2.
15 Declaration of Vince Richards, attached to KLOL(FM)
letter, supra note 5, ¶ 3.
16 Id., ¶¶ 2, 4.
17 Id., ¶ 5.
18 Id., ¶ 6.
19 Id., ¶ 7.
20 U.S. CONST., amend. I; 47 U.S.C. § 326.
21 Spanish Radio Network, 10 FCC Rcd 9954, 9959, ¶¶ 21-22
22 WDCG(FM) letter, supra note 5 at 2; WMJI(FM) letter,
supra note 5, at 2-3; KLOL(FM) letter, supra note 5, at 2.
23 47 C.F.R. §§ 0.111(a)(11), 0.311.