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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Beasley Broadcast Group, Inc.
) FRN: 0004305215
WQAM License Limited Partnership
) Facility ID No. 64002
Application for Renewal of License of
Station WQAM(AM), Miami, Florida ) File No. BR-20031001BXU
Memorandum Opinion and Order
Adopted: October 21, 2008 Released: October 23, 2008
By the Commission:
1. The Commission has before it an Application for Review filed by John
B. Thompson ("Mr. Thompson"). Mr. Thompson requests review of the
Enforcement Bureau's ("Bureau") Memorandum Opinion and Order ("Bureau
Order") in the above-captioned case, which denied a complaint of Mr.
Thompson's against Beasley Broadcast Group, Inc. ("Beasley"), licensee
of several radio broadcast stations. The complaint alleged that
Beasley had engaged in improper conduct by retaliating against Mr.
Thompson for filing indecency complaints with the Commission against
some of Beasley's radio stations. For the reasons set forth below, we
deny the Application for Review.
2. Beasley is the ultimate parent of WQAM License Limited Partnership,
licensee of Station WQAM(AM), Miami, Florida, and WRXK License Limited
Partnership, licensee of WRXK-FM, Bonita Springs, Florida
(collectively, "the Beasley Stations"). Mr. Thompson has filed
complaints against the Beasley Stations alleging violations of the
federal restrictions regarding the broadcast of indecent and profane
material. Mr. Thompson also filed a complaint alleging that Beasley
and its counsel had engaged in threats, abuse and intimidation against
him in retaliation for filing the indecency complaints. The Bureau
issued a letter of inquiry to Mr. Thompson directing him to produce
all documents providing the basis for, or supporting, his allegations
that Beasley had engaged in improper conduct. Mr. Thompson filed a
response to the Bureau's letter of inquiry and later filed numerous
addenda and supplements to his response, as well as additional e-mails
concerning his complaint and other matters. Mr. Thompson alleged,
among other things, that: (1) on air-personalities at Station WQAM(AM)
made threats against him and his client at Beasley's direction; (2)
that material at issue in the Commission's Notice of Apparent
Liability issued against Beasley for airing indecent material on
Station WQAM(AM) ("WQAM NAL") contains threats and corroborates his
claims that Beasley has engaged in impermissible conduct to retaliate
against him for filing indecency complaints; (3) Beasley's agent and
attorney, Norman Kent, has filed lawsuits and a contempt of court
proceeding against him at Beasley's direction in order to harass,
target and intimidate him; and (4) Beasley and its counsel have
improperly filed complaints against him with the Florida Bar.
3. Beasley denied Mr. Thompson's allegations that it had engaged in
improper conduct in response to his indecency complaint filings.
Beasley asserted that it had not contested or interfered with Mr.
Thompson's right to file complaints with the Commission and that Mr.
Thompson had not submitted any evidence to substantiate or corroborate
his claims. Beasley also argued that Mr. Thompson's own conduct
demonstrates that he has abused the Commission's processes and should
be sanctioned. Specifically, Beasley pointed to what it characterized
as the repetitious and irrelevant filings of Mr. Thompson. Beasley
also argued that Mr. Thompson made significant misrepresentations in
those filings, including unsubstantiated, false allegations that
Beasley and its counsel have engaged in a range of criminal
misconduct. Beasley further contended that Mr. Thompson has been
sanctioned for similar misconduct in an Alabama state court proceeding
and that the Florida Bar has initiated disciplinary proceedings
against him in a multiple count complaint that includes allegations of
misconduct brought not only by Beasley and its counsel but also by
other attorneys and the judge in the Alabama state court proceeding.
4. As reflected in the Bureau Order, the Enforcement Bureau addressed
each of Mr. Thompson's allegations in accordance with Commission
precedent. That precedent requires a complainant to submit
corroborating evidence to demonstrate that a licensee engaged in
threats of reprisals or other unnecessary and abusive conduct
reasonably calculated to dissuade the complainant from continued
involvement in a proceeding. The Bureau found that, during the
pendency of its investigation of Mr. Thompson's complaint, while he
informed the Commission that he expected to submit documentation to
support his allegations and requested that action on his complaint be
withheld until he did so, no documentation was ultimately submitted.
The Bureau ruled that, as a consequence of Mr. Thompson's failure to
submit documentation to support his allegations, he failed to meet his
evidentiary burden to substantiate his claims that Beasley and its
counsel had acted improperly; thus, there was no basis on which to
conclude that Beasley had improperly threatened, abused or harassed
Mr. Thompson in retaliation for his complaints against the Beasley
5. More specifically, the Bureau found that although the WQAM NAL found
that certain material aired over Beasley's station apparently violated
the restrictions on the airing of indecent material, because Mr.
Thompson's filings acknowledged that threats contained within the
apparently indecent material were made against someone else, and not
him or his family, this indecency determination did not corroborate
Mr. Thompson's harassment and intimidation complaint. The Bureau also
found that Mr. Thompson had failed to substantiate his allegations
that the same on-air host involved in the programming at issue in the
WQAM NAL had made other threats against him. The Bureau noted that the
excerpts of the alleged threats did not name Mr. Thompson and that no
corroborating evidence had been submitted to demonstrate that these
threats were actually broadcast or directed at him in retaliation for
filing indecency complaints. Finally, the Bureau concluded that Mr.
Thompson's allegations that other Beasley on-air personalities had
improperly threatened him were similarly unsubstantiated by
documentation or other corroborating evidence.
6. The Bureau also found that there was no evidence to substantiate or
corroborate Mr. Thompson's allegations that Beasley and its counsel
had impermissibly filed retaliatory lawsuits and bar complaints
against him as a consequence of his filing indecency complaints with
the Commission. The Bureau Order noted that the record included
legitimate reasons, other than impermissible retaliation, for
Beasley's actions. Furthermore, the Bureau cited evidence in the
record in which Beasley and its counsel specifically state that the
litigation and bar complaints are separate and distinct from Mr.
Thompson's complaints concerning Station WQAM(AM)'s programming and
statements which acknowledge his right to file complaints with the
7. The Bureau further found no evidence to support Mr. Thompson's
allegations that at Beasley's direction, Beasley's counsel had filed
civil lawsuits against him in 2004 and 2006 in order to harass and
intimidate him. The Bureau cited Mr. Kent's statements that these
lawsuits were filed in his individual capacity as a consequence of Mr.
Thompson's untruthful and defamatory characterizations of him.
Furthermore, the Bureau pointed to Mr. Thompson's repeated requests
that the Commission withhold a decision on his complaint in
anticipation that he would make filings to substantiate his claims
concerning Beasley's involvement in Mr. Kent's 2004 lawsuit.
8. The Bureau found no basis on which to attribute any impermissible
conduct to Beasley based on Mr. Kent's statements to the effect that
Beasley was not aware of his 2004 civil suit against Thompson until
after it was filed. Mr. Kent had, in fact, sent an e-mail to Beasley's
in-house counsel prior to filing suit, to alert Beasley that the
contemplated lawsuit could affect Mr. Kent's ability to represent
Beasley. The Bureau noted, however, that Mr. Kent's statements
concerning Beasley's prior knowledge of the 2004 lawsuit were made to
Mr. Thompson and his counsel, not to the Commission and, in any event,
Mr. Kent does not represent Beasley in this complaint proceeding. The
Bureau therefore concluded that there was no basis on which to find
that Beasley had made misrepresentations to or otherwise engaged in
improper conduct before the FCC.
9. Moreover, the Bureau rejected Mr. Thompson's allegations that Mr. Kent
improperly sought court-ordered enforcement of a 1989 settlement
agreement between Mr. Thompson and a Beasley on-air personality.
Beasley was not a party to the settlement agreement, which predated
the on-air personality's employment at Station WQAM(AM) and involved a
radio station owned by an entity unrelated to Beasley. The Bureau
found that there was no evidence of Beasley's involvement in the
lawsuit to enforce the agreement or that Beasley or its counsel
engaged in any improper harassment or intimidation based upon the
action to enforce the settlement agreement. The Bureau Order also
deferred consideration of Beasley's abuse of process complaint against
III. application for review
10. In his Application for Review, Mr. Thompson argues that the Bureau
erred, as a matter of law and fact, in three principal respects.
First, Mr. Thompson cites language in the WQAM NAL finding that an
on-air host's comments were apparently indecent because they dwelled
on the coerced and brutal nature of the sexual activities that the
host suggested should be performed on a listener and his family and
argues that this alone demonstrates that Beasley engaged in
impermissible retaliatory conduct against him. The Bureau's contrary
conclusion, Mr. Thompson contends, was therefore error. Second, Mr.
Thompson claims that there are other instances in which Beasley on-air
personalities have improperly threatened or harassed other listeners,
apparently implying that this corroborates his contention that Beasley
has threatened and harassed him. Third, Mr. Thompson argues that
review is appropriate because "Beasley, after the [Bureau's] improper
ruling in this matter, allowed one of its on-air `talents' to violate
a written agreement not to mention me on its air!" Mr. Thompson
apparently refers to the 1989 settlement agreement and claims that the
violation constitutes further impermissible harassment. Mr. Thompson
also "demand[s] a full hearing on this matter before the Commission."
11. Mr. Thompson, in several subsequent e-mails, supplements his
Application for Review. Specifically, on August 2, 2007, Mr. Thompson
alleged that Mr. Kent admitted in answers to interrogatories in a
civil lawsuit that he was retained by Beasley to pursue a bar
complaint and to represent them in other matters, and stated that his
bar complaint remains under consideration when in fact it "has been
dismissed with prejudice as baseless." Mr. Thompson also alleges that
Mr. Kent told him that Beasley did not know about his 2004 lawsuit
until after it was filed, when in fact Mr. Kent had sent Beasley's
general counsel an e-mail concerning the upcoming filing.
12. In addition, in e-mails filed on December 12 and 13, 2007, Mr.
Thompson made additional allegations that apparently relate to the
1989 settlement agreement, alleging again that the Beasley on-air
personality, with the assistance of Mr. Kent and with Beasley's
cooperation, was improperly seeking to have him held in contempt of
court for violating the agreement. Also in the December 13, 2007
supplement to his Application for Review, Mr. Thompson mentioned in
passing other alleged threats made against him by Station WQAM(AM)
on-air personalities, which the Bureau found were unsubstantiated and
did not support his complaint against Beasley. Beasley did not file an
opposition to Mr. Thompson's Application for Review or to his
subsequent e-mail supplements.
13. We deny Mr. Thompson's Application for Review and affirm the Bureau's
order. To obtain relief through an application for review of an action
taken pursuant to delegated authority, the aggrieved party must meet
at least one of the criteria set forth in Section 1.115(b)(2) of the
Commission's Rules. Specifically, the application for review must
"specify with particularity, from among the following, the factor(s)
which warrant Commission consideration of the questions presented":
(i) the action taken pursuant to delegated authority conflicts with a
relevant "statute, regulation, case precedent, or established
Commission policy," (ii) the action taken "involves a question of law
or policy which has not previously been resolved by the Commission,"
(iii) the action taken "involves application of a precedent or policy
which should be overturned or revised," (iv) the action taken makes
"an erroneous finding as to an important or material question of
fact," and/or (v) the action taken contains "prejudicial procedural
error." Because the application before us fails to meet any of the
criteria set forth under Section 1.115(b)(2), it is denied.
14. We find no legal or factual error in the Bureau's conclusion that Mr.
Thompson failed to meet his evidentiary burden to corroborate his
claims that Beasley impermissibly threatened him for the purpose of
retaliating against him. Commission precedent makes it impermissible
for a licensee to intimidate or harass a complainant with threats of
reprisals or to engage in some other unnecessary or abusive conduct
reasonably calculated to dissuade him from continued involvement in a
complaint proceeding. It is the complainant's burden to present
evidence to substantiate and document a claim of harassment and
intimidation. Mr. Thompson has failed to present any evidence to
substantiate his claims that Beasley engaged in improper conduct
against him in retaliation for the filing of indecency complaints. We
address his specific contentions in turn.
15. First, we reject Mr. Thompson's assertion that the Bureau was required
to find that Beasley had engaged in impermissible retaliation against
him because there were threats in the broadcast material that was the
subject of one of the complaints at issue in the WQAM NAL. There were
two complaints in the WQAM NAL, and although Mr. Thompson filed one of
those complaints, he does not contest the Bureau's finding that
comments in the material at issue in the WQAM NAL were not directed at
him. Under these circumstances, we find no error in the Bureau's
ruling that the broadcast material at issue in the WQAM NAL does not
support a conclusion that Beasley acted improperly in order to harass
or intimidate Mr. Thompson, and that Mr. Thompson failed to
substantiate his allegations that Beasley or its employees threatened
him because he filed indecency complaints.
16. Second, Mr. Thompson's argument that there are unrelated instances in
which on-air personalities at other Beasley stations allegedly have
improperly threatened or harassed other listeners, even if true, does
not substantiate his claim here. Mr. Thompson does not claim that the
threats involved in these other alleged incidents were directed at him
or that they were made in retaliation for his filing of indecency
complaints against Beasley's stations.
17. Third, we agree with the Bureau's determination that the allegations
concerning enforcement of the 1989 settlement agreement involving an
entity unrelated to Beasley have no bearing on his complaint against
Beasley and conclude that they do not provide a reason to find error
in the Bureau Order. Mr. Thompson's contention that Mr. Kent has
sought new sanctions against him in connection with the enforcement of
this 1989 settlement agreement, and that this is further evidence that
Beasley is engaging in improper conduct in order to harass and
intimidate him, is similarly unpersuasive. The Bureau Order pointed
out that Beasley was not a party to the 1989 settlement agreement,
which pertained to matters related to the employee's earlier on-air
job hosting a program at a station licensed not to Beasley but to
another broadcaster. Mr. Thompson did not specifically contest this
aspect of the Bureau's decision, and we find his new allegations
concerning this 1989 agreement similarly irrelevant. They are,
moreover, entirely unsubstantiated.
18. We also find no basis for reversing the Bureau's decision based on
those matters raised by Mr. Thompson in supplements to his Application
for Review. We concur in the Bureau's conclusion that Mr. Kent's
actions do not support a finding that Beasley threatened, abused or
intimidated Mr. Thompson. The Bureau Order specifically acknowledged
the attorney-client relationship between Mr. Kent and Beasley, but
found that there was no evidence to support a conclusion that Mr. Kent
had filed lawsuits against Mr. Thompson at Beasley's direction or that
Beasley had improperly brought bar complaints against Mr. Thompson in
order to harass or intimidate him or to deter him from participating
in Commission complaint proceedings. We agree with the Bureau's
conclusion that Mr. Thompson did not present any evidence to
substantiate or corroborate these allegations, and his allegations
concerning Mr. Kent's interrogatory answers, even if true, do not
provide a basis to find error in the Bureau Order. In this regard, we
also note that the Bureau Order referenced Mr. Kent's statements
voluntarily offering to dismiss a bar complaint that he had filed
against Mr. Thompson, and found that Mr. Thompson had not provided any
documentation to support a finding that the dismissal constituted a
dismissal on the merits. Moreover, Mr. Thompson points to Mr. Kent's
e-mail to Beasley prior to the filing of his 2004 lawsuit, but does
not dispute or otherwise assign error to the Bureau's finding that
even if the allegations about Beasley's prior knowledge of the lawsuit
are true, the record as a whole is insufficient to support a finding
that Mr. Kent brought his 2004 lawsuit at Beasley's urging and in
order to retaliate against him.
19. Mr. Thompson's passing reference to other alleged threats against him
made by Beasley on-air personalities, allegedly with Beasley's
guidance and support, is also unavailing. Mr. Thompson does not
specifically contest the Bureau's finding that there is no credible
evidence to substantiate his allegations that such threats, which do
not mention him by name, were actually broadcast or that these
comments were made in response to his filing of indecency complaints.
Nor does he provide any new evidence to substantiate his claims.
Accordingly, there is no basis for reversing the Bureau's order.
20. Finally, Mr. Thompson argues that he has a right to a full evidentiary
hearing before the Commission concerning his complaint. Mr. Thompson
cites no statutory provision or Commission rule in support of his
demand, and we find none to compel the hearing that he seeks. We note
that Section 312 of the Act, which describes administrative
sanctions, is inapposite. That section provides the Commission with
the discretion to commence a hearing proceeding against a broadcast
licensee for various forms of misconduct, none of which are present
here. Furthermore, Section 312 does not specifically create rights in
third party complainants. Thus, even if Mr. Thompson had substantiated
his harassment and intimidation complaint against Beasley, which he
did not, we would not be required to initiate a hearing proceeding. As
set forth in exhaustive detail in the Bureau Order, which we uphold
here, Mr. Thompson did not provide the required documentation to
corroborate the allegations in his complaint against Beasley. The
record here supports denial of Mr. Thompson's complaint, and there is
no basis on which to find that a hearing is warranted under the
circumstances present here.
21. For the foregoing reasons, we find that there is no basis to disturb
the Bureau's denial of Mr. Thompson's complaint and accordingly deny
his Application for Review.
V. ORDERING CLAUSES
22. IT IS ORDERED that the Application for Review filed by John B.
Thompson in the above-captioned matter IS DENIED.
23. IT IS FURTHER ORDERED that, to the extent that Mr. Thompson has raised
allegations of improper retaliatory conduct and abuse in informal
objections filed with the Commission against the renewal of the
license of Station WQAM (AM), Miami, Florida, FCC File No.
BR-20031001BXU, and dated November 11, 12, 13, 17, 18, 2003, August
20, 2004, and December 12, 2007, these informal objections and all
other similarly based objections ARE HEREBY DENIED.
24. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order
SHALL BE SENT by Certified Mail to John B. Thompson, and to Beasley
Broadcast Group, Inc., 3033 Riviera Drive, Naples, Florida, 34103,
with a courtesy copy by regular mail to its counsel, Steven A. Lerman,
Esquire, Dennis P. Corbett, Esquire, and Philip G. Bonomo, Esquire,
Leventhal Senter & Lerman PLLC, 2000 K Street, N.W., Suite 600,
Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
See E-mail dated June 11, 2007, from Jack Thompson to FCC Chairman Kevin
J. Martin, Re: Formal Demand for Federal Communications Commission Review
of Erroneous Findings and Order, attaching letter requesting review
("Application for Review"). Mr. Thompson cites both Sections 1.106 and
Section 1.115 of the Commission's rules, but states that his filing is an
application for review. See 47 C.F.R. S:S: 1.106 (petitions for
reconsideration), 1.115 (applications for review of action taken pursuant
to delegated authority). Mr. Thompson was entitled to file a petition for
reconsideration or an application for review of the Bureau Order, but not
both. See 47 C.F.R. S: 1.104(b). Consequently, we will treat Mr.
Thompson's filing as an application for review. We also note that, on
December 13, 2007, Mr. Thompson filed an e-mail supplementing his informal
objections to the WQAM(AM) license renewal, and attached a letter dated
December 12, 2007. See E-mail from Jack Thompson to Kevin J. Martin,
Chairman, Federal Communications Commission, transmitted December 13,
2007, 1:53 p.m. This filing, as well as various other informal objections
filed against WQAM(AM)'s license renewal, raises the same allegations of
improper retaliatory conduct and abuse that we address here. In light of
the disposition of those issues here, Mr. Thompson's objection to
WQAM(AM)'s license renewal application, filed by letter dated December 12,
2007, and all other similarly based objections to the station's license
renewal, are hereby denied.
The Beasley Broadcast Group, Inc., Memorandum Opinion and Order, 22 FCC
Rcd 10075 (Enf. Bur. 2007) ("Bureau Order").
See 18 U.S.C. S: 1464; 47 C.F.R. S: 73.3999. Mr. Thompson's indecency
complaints will not be addressed here, but will be considered separately.
See Bureau Order, 22 FCC Rcd at 10075 P:P: 1-2 & nn.1, 3 (citing Letter
from John B. Thompson, Attorney at Law, to Michael K. Powell, Chairman,
Federal Communications Commission, dated November 27, 2004 ("Complaint")).
See Bureau Order, 22 FCC Rcd at 10075 P: 3 & n.5 (citing Letter from
William D. Freedman, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, to John B. Thompson, Esquire, dated December 15, 2004
See Bureau Order, 22 FCC Rcd at 10075-10076 P: 3 & n.6 (citing Letter
from John B. Thompson, Attorney at Law, to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated January 5, 2005 (Revised Subsequent
Version) ("Thompson LOI Response")). See also Bureau Order, 22 FCC Rcd at
10076 P: 3 & nn.7-9 (concerning Mr. Thompson's subsequent filings).
See WQAM License Limited Partnership, Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 22997 (2004) ("WQAM NAL") (response pending).
See Bureau Order, 22 FCC Rcd at 10076 P: 4.
See id. at 10077 P: 5 & nn.11-15 (citing Beasley's initial reply to Mr.
Thompson's LOI response, Letter from Steven A. Lerman, Esquire, Dennis P.
Corbett, Esquire and David S. Keir, Esquire, Counsel for The Beasley
Broadcast Group, Inc. to Melanie A. Godschall, Investigations and Hearings
Division, Enforcement Bureau, dated January 28, 2005) ("Reply To Thompson
Complaint"), as well as Beasley's additional supplements filed on March
11, 2005 ("Supplemental Reply to Thompson Complaint"); December 16, 2005
("Second Supplemental Reply to Thompson Complaint"); April 14, 2006
("Third Supplemental Reply to Thompson Complaint"); and February 12, 2007
See Bureau Order, 22 FCC Rcd at 10077 P: 5 & nn.16-17; see also Reply To
Thompson Complaint; Supplemental Reply to Thompson Complaint; and Second
Supplemental Reply to Thompson Complaint.
See Second Supplemental Reply to Thompson Complaint, at Attachment 1
(attaching the Orders of Judge James Moore, Circuit Judge, 24th Judicial
Circuit, Fayette County Alabama, denying Mr. Thompson's motion to withdraw
as counsel in a civil lawsuit against Sony, Take-Two Interactive Software,
Inc. and other defendants; revoking Mr. Thompson's admission pro hac vice;
and denying Mr. Thompson's motion to vacate the Order revoking his pro hac
vice admission). See Strickland v. Sony Corporation, Order, Case No. CV
05-19 (Nov. 17, 2005); motion to vacate denied, Order (Nov. 21, 2005).
See Further Reply, at Attachment 3 (The Florida Bar v. John Bruce
Thompson, Case No. SC07-80, filed January 18, 2007 ("Florida Bar
Complaint")). As set forth in the Bureau Order, in accordance with the
Florida Bar's disciplinary procedures, a grievance committee has found
probable cause to believe that Mr. Thompson may have violated certain of
the Florida rules regulating attorney conduct and that discipline appears
to be warranted, and the Florida Bar has filed a complaint with the
Supreme Court of Florida. See Bureau Order, 22 FCC Rcd at 10086 P: 22,
n.72. The Florida Bar Complaint, as originally filed, included two counts
relating to complaints concerning Mr. Thompson's conduct toward Beasley
and its counsel. See Florida Bar Complaint at 25-35, Counts IV and V. As
discussed herein, Mr. Kent's complaints underlying Count IV apparently
have been dismissed, but the Bureau found no evidence to substantiate Mr.
Thompson's repeated assertion that this dismissal was based upon a finding
that the complaints were without merit. See paragraph 18 of this Order,
infra; Bureau Order, 22 FCC Rcd at 10086-10087 P: 24. Mr. Kent submitted
to the Commission a copy of his voluntary authorization to the Florida Bar
to delete matters related to complaints that he had filed on his own
behalf. See Bureau Order, FCC Rcd at 10086-10087 P: 24 & n.78.
See Bureau Order, 22 FCC Rcd at 10077-10078 P: 6.
See 18 U.S.C. S: 1464; 47 C.F.R. S: 73.3999.
See Bureau Order, 22 FCC Rcd at 10079-10080 P:P: 8-9. The NAL at issue
addressed, in part, a complaint by another listener, and not Mr. Thompson,
alleging that Station WQAM(AM)'s on-air host, Scott Farrell, received an
angry phone call from a listener and then threatened to have the caller
incarcerated, after which the caller would be raped and sodomized, and Mr.
Ferrall would perform sexual acts on his wife and also engage in violence
against his family. See id at P: 8, n.27; see also WQAM NAL, 19 FCC Rcd
at 23001 P: 9. We are informed that Mr. Ferrall no longer works at Station
See Bureau Order, 22 FCC Rcd at 10081 P: 13 & nn.39-42. In addition, the
Bureau rejected allegations that Beasley's response to the WQAM NAL
misrepresented that Mr. Thompson was the sole complainant and improperly
attacked his credibility. See id. at 10080-10081 P:P: 10-12. In this
regard, the Bureau noted that Beasley had been provided redacted copies of
the two complaints at issue in the WQAM NAL and that Mr. Thompson himself
had made public statements apparently taking credit for filing both
complaints. See id. at 10080, nn.35, 37. Under these circumstances, the
Bureau concluded there was nothing impermissible in Beasley's response,
which acknowledged its uncertainty as to whether Mr. Thompson had filed
both complaints and for convenience, referred to a "Complainant"
throughout. Mr. Thompson does not challenge the Bureau's findings
concerning Beasley's response to the WQAM NAL.
See id. at 10087 P:P: 25-26 & nn.81-84.
Specifically, Mr. Thompson had repeatedly characterized Beasley as a
criminal enterprise and its principals as criminals in press releases,
contacts with state and federal officials, and to entities with which
Beasley does business. See id. at 10078-10079 P: 7 & nn.22-25. In this
regard, the Bureau stated that it was unaware of any information
demonstrating that Beasley or its principals have been convicted of any
felony or other crime cognizable under the Commission's Character Policy
and that Mr. Thompson had submitted no evidence or documentation of such
criminal convictions. Id.
See id. at 10081-10082 P: 14 & nn.43-47; 10084 & n.60; 10084-85 P: 20.
See id. at 10081 P: 14, 10083-10084 P:P: 17-18. The Bureau pointed out
that the record did not include a copy of the complaint in the 2006
lawsuit. See id. at 10083 P: 17.
See id. at 10082 P: 14 & n.46; 10084 P: 18 & n.60. Specifically, Mr. Kent
alleged that Mr. Thompson made statements that he was a "license-suspended
drug and porn lawyer" and "a drug lawyer who has been suspended from the
practice of law," when in fact he was a member of the Florida Bar in good
standing, and that he falsely accused Mr. Kent of other criminal
misconduct, including extortion and tax evasion. Mr. Thompson apparently
entered into an agreement settling this litigation that did not include
admissions of liability.
See id. at 10084 P: 18 & nn.58-59.
See id. at 10083 P: 15 & nn.48-50. The Bureau also found that Mr. Thompson
apparently learned of the e-mail, which was ineffectively redacted,
because it had been placed in Station WQAM(AM)'s public inspection file by
mistake. The Bureau ruled that this redacted e-mail was a privileged
communication not required to be placed in the public file. See id. at
10083 P: 15. See also 47 C.F.R. S: 73.3526(e)(10). Mr. Thompson does not
challenge or otherwise seek review of this aspect of the Bureau Order.
See Bureau Order, 22 FCC Rcd at 10083 P: 15.
See id. at 10083 P: 16.
See id. at 10089-10090 P:P: 29-30. The Bureau pointed out that Mr.
Thompson's own statements acknowledged that the 1989 agreement concerns
another broadcaster. See id. at 10089 P: 29 & n.23
See id. at 10089-10090 P:P: 29-31.
See id. at 10077 P: 2 & n.17.
See WQAM NAL, 19 FCC Rcd at 23002-23003 P: 11.
See Application for Review at 1-2.
See id. at 2.
See E-mail from Jack Thompson to Kevin J. Martin, Chairman, Federal
Communications Commission, dated August 2, 2007 re: URGENT Re: Formal
Demand for Federal Communications Commission Review of Ms. Monteith's
Erroneous Findings and Order Re WQAM-AM (Supplement to Application for
Review). The Commission's procedural rules provide for the filing of an
application for review and supplements within 30 days of the date that the
Commission issues its public notice of a Bureau decision taken pursuant to
delegated authority. See 47 C.F.R. S: 1.115(d). Furthermore, the
Commission's rules also prohibit Mr. Thompson from raising matters of law
or fact which the delegated authority has not been afforded an opportunity
to consider. See 47 C.F.R. S: 1.115(c). Mr. Thompson's supplement is
subject to dismissal because he has failed to comply with the provisions
of Sections 1.115(c) and (d). We find it in the public interest to waive,
on our own motion, the provisions of Section 1.115 (c) and (d) in this
case in order to consider matters raised in Mr. Thompson's August 2, 2007
filing, which relate to matters previously considered by the Bureau. See,
e.g., Brookfield Development, Inc., Memorandum Opinion and Order, 19 FCC
Rcd 14385, 14388 & n.34 (2004) (To the extent that an application for
review relies on a question of law or fact which the Bureau has not been
given the opportunity to consider, it is subject to dismissal. Here,
however, the Commission finds that the public interest is served by
addressing the merits of the argument not presented to the delegated
authority in the interest of completeness, because the argument relates to
the same facts considered by the delegated authority.).
See Supplement to Application for Review.
See Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, transmitted via E-mail on
December 12, 2007, which requests that the Commission "open a new file as
to the continuing harassment of me by Beasley in order to protect its
shock radio format." On December 13, 2007, however, Mr. Thompson filed two
additional e-mails concerning these allegations, in one of which he also
references his pending application for review. See E-mails from Jack
Thompson to Kevin J. Martin, Chairman, Federal Communications Commission,
transmitted December 13, 2007, 5:41 a.m. and 6:03 a.m. Under these
circumstances, we will not consider these allegations to constitute a new
complaint. Moreover, because these allegations relate to matters initially
raised before the Bureau and in his application for review, we find that
it is in the public interest to waive Section 1.115(c) and (d) in order to
consider these allegations. See note 38, supra. We also note that Mr.
Thompson made these supplemental filings electronically, even though the
Commission's interim electronic filing procedures, which were applicable
to applications for review and certain other pleadings, had been
rescinded. See Implementation of Interim Electronic Filing Procedures for
Certain Commission Filings, Order, 22 FCC Rcd 11381 (2007); FCC Rescinds
Its Interim Procedures For Electronic Filing Effective September 25, 2007,
News Release (June 29, 2007). We therefore also waive the provisions of
Section 1.115(f) of the Commission's rules, which requires that these
pleadings be submitted to the Secretary, Federal Communications Commission
at the locations set forth in Section 0.401 of the Commission's rules. See
47 C.F.R. S:S: 0.401, 1.115(f).
See E-mail from Jack Thompson to Kevin J. Martin, Chairman, Federal
Communications Commission, transmitted December 13, 2007, 5:41 a.m.
See 47 C.F. R. S: 1.115(b)(2).
See Clear Channel Broadcasting Licenses, Inc., Notice of Apparent
Liability, 19 FCC Rcd 1768, 1777 P: 15 (2004) (forfeiture paid) (finding
that a complainant failed to substantiate or otherwise provide evidence to
corroborate his allegations that the licensee sanctioned in the NAL also
engaged in impermissible retaliation as a result of the complaint and
denying the complainant's harassment and intimidation complaint).
See Bureau Order, 22 FCC Rcd at 10079-80 P:P: 8-9.
See id. at 10089 P: 30.
See id. at 10086-10087 P: 24 & n.78.
See id. at 10083 P: 16. We also note that the Florida Supreme Court has
issued an Order permanently disbarring Mr. Thompson based on the
disciplinary proceeding initiated by the Florida Bar Complaint. See note
14, supra. Specifically, following a trial and disciplinary hearing, the
presiding referee issued a report recommending, inter alia, Thompson's
permanent disbarment, with no leave to reapply for admission. See Report
of Referee, Case Nos. SC07-80 and SC07-354 (Jul. 9, 2008). The referee's
report includes findings of Mr. Thompson's guilt with respect to bar
complaints brought by Beasley's counsel, Tew Cardenas LLP. See id. at
134-144. The Florida Supreme Court's Order approves the referee's report
and permanently disbars Mr. Thompson, effective 30 days from the date of
its Order. See The Florida Bar v. John Bruce Thompson, Order, Case Nos. SC
07-80 and SC 07-354 (Sept. 25, 2008).
See Application for Review at 2. See Bureau Order, 22 FCC Rcd at 10081 P:
13 (There was insufficient evidence to support a finding that the on-air
host who aired the comments at issue in the WQAM NAL also made other
impermissible threats, including the threat of a beating, against Mr.
Thompson during a broadcast on October 2, 2003 where Mr. Thompson did not
pursue contemporaneous complaints about the threats, the excerpts of the
alleged threats that he provided did not mention him by name, and no
corroborating evidence substantiated that the threats were actually
broadcast or directed at him.); 22 FCC Rcd at 10087-10088 P: 26 (excerpts
submitted by Mr. Thompson with respect to other alleged threats by a
different Beasley on-air host do not mention him by name and there is no
corroborating evidence that such threats were actually broadcast; even
assuming, arguendo, that Mr. Thompson provided accurate information as to
the substance of the statements, there is no evidence to support a finding
that they were in retaliation for Mr. Thompson's indecency complaints).
See Application for Review at 2 ("I demand a full hearing on this matter
before the Commission. . . . to tell the Commission directly about threats
. . . [and to hear Commission personnel] respond to my testimony.").
Pursuant to Section 1.80(e) of the Commission's Rules, the Commission may
institute forfeiture proceedings either via a written notice of apparent
liability or via a full evidentiary hearing before an administrative law
judge. See 47 C.F.R. S: 1.80(e) and (g). Typically, however, hearings
occur "only when a hearing is being held for some reason other than the
assessment of a forfeiture." Id. at S: 1.80(g). Such circumstances are not
present here, and the Enforcement Bureau properly exercised its discretion
to resolve Mr. Thompson's complaint via written notice and pleadings, in
which Mr. Thompson has participated fully.
See 47 U.S.C. S: 312(a). See, e.g., Humboldt Bay Video Co., Memorandum
Opinion and Order, 56 FCC 2d 68, 71 P: 6 (1975) (citations omitted). The
Commission generally will refuse to issue an order to show cause based
upon a third-party petition unless that party's allegations establish a
prima facie violation of a Commission rule or order. See Humboldt Bay
Video Co., 56 FCC 2d at 71 n.9. Moreover, even if the Commission finds a
violation based upon the petition of a third party, it has broad
discretion to refuse to conduct a hearing. See id.
See 47 U.S.C. S: 312(a). See, e.g., Humboldt Bay Video Co., 56 FCC 2d 71
n.9; see also C&W Communications, Inc., Order on Review, 20 FCC Rcd 5586,
5589 P: 7 (2005) (Commission has complete discretion, even when there is
evidence of violations, to determine not to issue an order to show cause
under Section 312 and can refuse to do so based upon the petition of a
third party even if it determines a violation of the Act or rules exists).
See id. Similarly, the Commission is not compelled to conduct a hearing
pursuant to Section 309 of the Act, which permits the Commission to
designate for hearing before an administrative law judge the renewal of a
station license. See 47 U.S.C. S: 309(k); see also South Seas
Broadcasting, Inc., Memorandum Opinion and Order, 23 FCC Rcd 6474 (Med.
Bur. 2008) (granting short-term renewal as remedy, not a live
hearing, where Media Bureau found licensee engaged in a pattern of abuse
by failing to operate in the public interest and ignoring staff
inquiries). In the instant case, we note that, even if Mr. Thompson had
shown that WQAM(AM)'s application did not meet the requirements of Section
309(k)(1), we would not be compelled to designate Station WQAM(AM)'s
pending license renewal application for an evidentiary hearing. In any
event, Mr. Thompson has failed to substantiate any violation of the Act or
the Commission's rules, and no evidentiary hearing before the Commission
or an administrative law judge is warranted.
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Federal Communications Commission FCC 08-251
Federal Communications Commission FCC 08-251