Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554

In the Matter of                  )
                                 )
CAPSTAR TX LIMITED PARTNERSHIP    )   File  No.  EB-03-IH-0483  et 
                                 )   al.
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       )
PARTNERSHIP                       )
                                 )   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:    

I.  INTRODUCTION

     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.  

II.   BACKGROUND

     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 
broadcasts.  

     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 

III.  DISCUSSION

     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' 
basic qualifications.

     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, 
Texas 78209-8328.

     

                         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 
(``KLOL(FM) letter'').

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. 

13 Id. 

14 Id.

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 
(1995).

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.