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

In the Matter of                  )
                                 )
GREATER BOSTON RADIO, INC.        )   File No. EB-04-IH-0181
                                 )   Facility ID # 25050
Licensee of Station WTKK(FM),     )
Boston, Massachusetts             )
                                 )


                MEMORANDUM OPINION AND ORDER

     Adopted:  July 13, 2004            Released:  July  14, 
2004 

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

      1.  In this Memorandum Opinion and Order, we deny 
 complaints filed against Greater Boston Radio, Inc. 
 (``Greater Boston''), licensee of Station WTKK(FM), Boston, 
 Massachusetts, for broadcasting certain comments over the 
 station by a talk show host by which he allegedly advocated 
 violence against Muslims.  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 type of 
 commentary, we conclude that the broadcast in question does 
 not warrant enforcement action prior to an adjudication by 
 a court of competent jurisdiction that the broadcast posed 
 a ``clear and present danger.''  


                      II.   BACKGROUND

      2.  This matter involves a number of similar 
 complaints alleging that, on or about April 22, 2004, 
 Station WTKK(FM) broadcast comments by a talk show host in 
 which he advocated violence against Muslims.3  
 Specifically, the complaints allege that the host stated 
 over the air, ``I believe that Muslims in this country are 
 a fifth column . . . You believe that we should befriend 
 them.  I think we should kill them.''  The complaints also 
 allege that the host advocated dropping bombs in the Middle 
 East to kill Muslims.  The complainants generally express 
 outrage that Station WTKK(FM) broadcast such inflammatory 
 speech, and many of them request that the Commission assess 
 a fine against the station and/or prohibit future 
 broadcasts of such language.



                      III.  DISCUSSION

      3.  The Federal Communications Commission is 
 authorized to license radio and television broadcast 
 stations 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.4  

      4.  Consistent with those constraints, the Commission 
 has previously held:

     It is the judgment of the Commission, as it has 
     been the judgment of those who drafted our 
     Constitution and of the overwhelming majority of 
     our legislators and judges over the years, that 
     the public interest is best served by permitting 
     the expression of any views that do not involve 
     ``a clear and present danger of serious 
     substantive evil that rises far above public 
     inconvenience, annoyance, or unrest.'' Terminiello 
     v. Chicago, 337 US 1, 4 (1949); Chaplinsky v. New 
     Hampshire, 315 US 568; Ashton v. Kentucky, 384 US 
     195, 34 LW 4398 (1966). This most assuredly does 
     not mean that those who uphold this principle 
     approve of the opinions that are expressed under 
     its protection. On the contrary, this principle 
     insures that the most diverse and opposing 
     opinions will be expressed, many of which may be 
     even highly offensive to those officials who thus 
     protect the rights of others to free speech. If 
     there is to be free speech, it must be free for 
     speech that we abhor and hate as well as for 
     speech that we find tolerable or congenial.5

      5.  There is no statutory provision or Commission rule 
 that the complained-of broadcast would appear to violate.  
 Instead, the only issue before us is whether the broadcast 
 calls to question the basic qualifications of Greater 
 Boston to be and remain a licensee of the Commission.  In 
 light of Commission precedent on point, we find that no 
 question regarding the licensee's basic qualifications are 
 raised in the absence of a decision by a court of competent 
 jurisdiction: 

     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.''6  

      6.  It appears that, to date, no local court of 
 competent jurisdiction has found that any of the material 
 aired over Station WTKK(FM) that is the subject of the 
 instant complaints met the ``clear and present danger'' 
 test.  Indeed, as far as we know, no civil or criminal 
 action of any kind has been brought against Greater Boston 
 regarding the complained-of broadcast.  Viewing these 
 circumstances in light of the Commission's clear directive 
 regarding treatment of broadcast speech that allegedly 
 advocates or incites violence, we conclude that no 
 substantial question exists concerning Greater Boston's 
 qualifications and that Commission action is not warranted.   

IV.  ORDERING CLAUSES

      7.  ACCORDINGLY, IT IS ORDERED, pursuant to sections 
 0.111(a)(11) and 0.311 of the Commission's rules,7 that the 
 above-described complaints filed against Greater Boston 
 Radio, Inc. are hereby DENIED.  

      8.  IT IS FURTHER ORDERED, that a copy of this 
 Memorandum Opinion and Order be sent by first class mail or 
 e-mail to each of the complainants for which the Commission 
 has a return or e-mail address and to Greater Boston Radio, 
 Inc., 35 Braintree Hill Office Park, Suite 300, Braintree, 
 Massachusetts 02184.

     

                         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 To date, the Commission has received approximately eighty 
complaints concerning this broadcast.

4 U.S. CONST., amend. I; 47 U.S.C. § 326.

5 Anti-Defamation League of B'nai B'rith, 4 FCC 2d 190, 191 
(1966), aff'd sub nom. Anti-Defamation League of B'nai 
B'rith v. FCC, 403 F.2d 169 (D.C. Cir. 1968), cert. denied, 
394 U.S. 930 (1969); see also 
In re  Complaint of Julian  Bond, Atlanta NAACP, 69  FCC 2d 
943 (Broadcast. Bur. 1978).

6 Spanish  Radio Network, 10  FCC Rcd 9954, 9959,  ¶¶ 21-22 
(1995).

7 47 C.F.R. §§ 0.111(a)(11), 0.311.