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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) EB-04-IH-0661
The Beasley Broadcast Group, Inc.
)
)
Memorandum OPinion and Order
Adopted: June 1, 2007 Released: June 1, 2007
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order we deny a formal complaint
against The Beasley Broadcast Group, Inc. ("Beasley") filed by John B.
Thompson ("the Complainant") alleging improper conduct against him
based upon his filing of complaints against radio broadcast stations
licensed to Beasley's subsidiaries.
II. BACKGROUND
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 Station WRXK-FM, Bonita Springs, Florida
(collectively, "the Beasley Stations"). The Complainant filed a number
of complaints against the Beasley Stations alleging violations of the
federal restrictions regarding the broadcast of indecent and profane
material. The Complainant also filed a formal complaint alleging that
Beasley and its counsel have engaged in threats, abuse and
intimidation against him in retaliation for filing these complaints
and that he had proof to substantiate these allegations. The
Complainant did not request a specific sanction in his complaint, but
subsequently requested that the Commission initiate revocation
proceedings against all of Beasley's broadcast licenses and withhold
action on all Beasley's pending "applications, petitions and
requests."
3. Based upon the complaint, we issued a letter of inquiry to the
Complainant directing that he produce all documents that provide the
basis for or otherwise support his allegations of improper threats,
intimidation and harassment. The Complainant filed a response to our
letter of inquiry on January 5, 2005. In addition, the Complainant
thereafter filed, via e-mail, numerous addenda to his response as well
as numerous additional e-mails concerning his complaint. On January
22, 2007, the Complainant submitted a statement, accompanied by a
declaration under penalty of perjury, summarizing the ongoing
harassment, intimidation and targeting that he has alleged is a result
of his complaints against Beasley. The Complainant supplemented the
January 22, 2007 filing on February 1, 2007. Although the Complainant
claims to have mailed to the Commission original signed declarations
in support of the January 22 and February 1, 2007 filings, we have not
received these signed declarations.
4. The Complainant contends that Beasley has violated 18 U.S.C. S 1464
and Section 73.3999 of the Commission's rules by broadcasting indecent
material over Station WQAM(AM) and is attempting to shield its illegal
activity by impermissibly targeting him instead of addressing his
indecency complaints on the merits. Specifically, the Complainant
alleges that: (1) on-air personalities at Station WQAM(AM) and others
have made threats against him and against one of his clients; (2)
Beasley has engaged in improper conduct in a Commission proceeding in
which a Notice of Apparent Liability was issued against Beasley for
airing indecent material on Station WQAM(AM); (3) Beasley's agent and
attorney, Norman Kent, has filed lawsuits and a contempt of court
proceeding against him at the direction of Beasley in order to harass,
target and intimidate him; and (4) Beasley and its counsel have
improperly filed complaints against him with the Florida Bar.
5. Beasley filed a reply to the Complainant's initial response on January
28, 2005, and supplemented this reply on March 11, 2005, December 16,
2005, and April 14, 2006. In addition, on February 12, 2007, Beasley
filed a further reply to the Complainant's filings. Beasley denies the
Complainant's allegations and further alleges that that the
Complainant has not provided any proof to support them. Indeed,
Beasley maintains that the Complainant's own submission demonstrates
that Beasley has taken reasonable and transparent actions to protect
itself against the Complainant's allegedly inappropriate and abusive
conduct without contesting or interfering with his right to file any
complaint with the Commission. In this regard, Beasley also asserts
that the Complainant's conduct includes repetitive defamatory
communications, interference with its business relationships and other
inappropriate and abusive tactics. Beasley maintains that, as a
consequence of these actions, it is the Complainant who has abused the
Commission's processes and that it is he who should be sanctioned for
such misconduct. Beasley also asserts that the Complainant has made
material misrepresentations that the Florida Bar has dismissed
complaints filed against him by Beasley and its counsel and submits a
complaint, filed by the Florida Bar against the Complainant, to
demonstrate that these complaints have not been dismissed and that the
bar is pursuing disciplinary action against the Complainant.
III. DISCUSSION
6. The Complainant's Harassment and Intimidation Complaint. In order to
find that a licensee impermissibly intimidated or harassed a
complainant, there must be evidence of threats of reprisals or some
other unnecessary and abusive conduct reasonably calculated to
dissuade a complainant from continued involvement in a proceeding.
Under Commission precedent, a complainant has the burden of presenting
evidence to corroborate a claim of harassment and intimidation. At
various times during the pendency of this investigation, the
Complainant has informed the Commission that he expects to submit
documentation from civil suits he has filed or will file and that this
documentation will support his allegations. One such instance was on
July 26, 2006, when the Complainant asserted that he was about to
engage in discovery in connection with a civil lawsuit that would
prove his allegations, and asked that the Commission withhold action
and keep its investigation open pending his submission of that
documentation. No such documentation was ultimately filed, although
the Complainant did make additional submissions to the Commission. As
discussed in more detail herein, we find that in light of the
Complainant's failure to substantiate his allegations, there is no
basis on which to conclude that Beasley has engaged in improper
threats, harassment or abuse of the Complainant.
7. In addition, the Complainant's allegations concerning the lawsuits and
bar complaints filed against him cannot be viewed in isolation from
his own conduct toward Beasley and its counsel. The Complainant has
regularly issued press releases and contacted state and federal
officials and other entities with which Beasley does business
characterizing Beasley as a "criminal enterprise" under various
criminal statutes, including the Racketeer Influenced Corrupt
Organizations Act ("RICO") and characterizing Beasley and its
principals as "criminals." We are unaware of, and the Complainant has
not submitted any information demonstrating that Beasley or its
principals have been convicted of any felony or other crime cognizable
under the Commission's Character Policy. Moreover, as discussed below,
there is no evidence that Beasley has acted improperly with regard to
any of the lawsuits cited by the Complainant. These lawsuits were
filed by Beasley's counsel, and do not involve Beasley or matters
within the Commission's regulatory jurisdiction. Under these
circumstances, there are legitimate reasons other than impermissible
retaliation for the lawsuits and bar complaints referenced by the
Complainant.
8. Allegations Concerning Threats During Broadcasts of the "Scott Ferrall
Show" and Improper Conduct Associated with the WQAM NAL Proceeding.
In September 2003, the Commission received complaints alleging that
indecent material was aired on Station WQAM(AM) during the "Scott
Ferrall Show." One of the complaints, which was filed by another
listener, and not by the Complainant, concerned a September 9, 2003
broadcast in which the on-air host, Mr. Ferrall, received an angry
phone call from an unidentified listener and then threatened to have
the caller incarcerated, after which the caller would be raped and
sodomized, and Mr. Ferrall would perform other sexual acts on his wife
and also engage in violence against his family. The Complainant filed
a different complaint about the September 10, 2003, broadcast of the
"Scott Ferrall Show," and claimed that, among other things, the
broadcast included the following material: "[m]olested in the ass as
children...hot candles in the ass." This indecency complaint does not
mention any threats by Mr. Ferrall, and the Complainant did not file a
contemporaneous complaint about the threats in the September 9, 2003
broadcast or about any other threat against him by Mr. Ferrall. In
various communications sent to the Commission, however, the
Complainant has since suggested that the threats in the September 9,
2003 broadcast were made against him and his family. The Complainant,
however, does not so claim in his response and supplement to his
response to the letter of inquiry in this proceeding. The record also
includes other statements by the Complainant acknowledging that the
threats on September 9, 2003 were directed against someone else, and
not him or his family.
9. The Complainant points to the Commission's Notice of Apparent
Liability ("NAL"), issued to WQAM for its apparent violation of 18
U.S.C. 1464 and Section 73.3999 of the Commission's rules for
broadcasting indecent material over Station WQAM(AM) on September 9
and 10, 2003 and argues that the NAL corroborates his claims of
improper threats made at the direction of Beasley and its counsel. We
disagree. As discussed above, the Complainant acknowledges that the
threats were made against someone else, and not him or his family.
10. The Complainant also alleges that Beasley and its Washington, D.C.
counsel have targeted him for harm in retaliation for his complaints
to the Commission through improper conduct in the WQAM NAL proceeding.
Specifically, the Complainant alleges that Beasley lied in its
response to the NAL by asserting that the Complainant alone was
responsible for the indecency complaints about the material aired on
September 9 and 10, 2003 and then "launch[ed] an outrageous ad hominem
false assault upon me and my reputation."
11. Our letter of inquiry to WQAM concerning the September 9 and 10
broadcasts of the "Scott Ferrall Show" enclosed redacted copies of the
complaints to omit identifying information concerning the
complainants. Thus, it was not clear to Beasley at the time that both
complaints had not originated with him. Beasley's response to the NAL
notes this uncertainty, and for convenience, references a
"Complainant" throughout. The Commission, by contrast, had copies of
the original, unredacted complaints and knew the identity of each of
the complainants in the NAL proceeding. Thus, Beasley had no motive to
make misrepresentations to persuade the Commission that the
Complainant alone was responsible for the September 9 and 10, 2003
complaints about the "Scott Ferrall Show." For all of these reasons,
we find no basis on which to conclude that Beasley made
misrepresentations to the Commission.
12. In addition, we find no basis on which to conclude that Beasley and
its counsel acted impermissibly by raising the issue of the
Complainant's credibility in the NAL proceeding. The NAL found that
Beasley had broadcast indecent programming on September 10, 2003 based
upon an excerpt from that broadcast submitted by the Complainant. The
Complainant provided the excerpt based upon material that he claims
was aired during the broadcast. This was consistent with the
Commission's policy to accept indecency complaints based upon the
complainant's submission of a significant excerpt of the broadcast. No
recording or transcript of the broadcast was submitted with the
complaint, and Beasley did not have a recording of the broadcast.
Under these circumstances, Beasley presented arguments in response to
the NAL that the Complainant's conduct in other proceedings
demonstrates that he is not credible. Contrary to the Complainant's
assertions, Beasley's arguments are not impermissible and do not
constitute abusive conduct calculated to intimidate him. Moreover, the
Complainant's assertion that Beasley's NAL response contains only
attacks against him and no other substantive arguments is incorrect.
13. The Complainant also states that Mr. Ferrall threatened to have him
beaten during a broadcast on Station WQAM(AM) on October 2, 2003. The
Complainant did not file a contemporaneous complaint about this
threat. After we sent our letter of inquiry to the Complainant in this
proceeding, however, he alleged for the first time that during the
October 2, 2003 broadcast on WQAM(AM), Mr. Ferrall made additional
threats that were directed at him. First, the Complainant alleges that
Mr. Ferrall used the phrase "homo nation" and then said "How'd you
like that one, Jack?" This comment, however, does not constitute a
threat, and even if it did, the Complainant presents no evidence to
demonstrate that the substance of this comment was directed to him or
that it relates to indecency complaints that he filed with the
Commission. The Complainant claims that during this same broadcast,
Mr. Ferrall also said "I'm stuffing my package down your throat," "if
that guy came to my gig at Gate G we could have one of my listeners
kill him." The excerpts provided by the Complainant, however, do not
mention him by name and the Complainant does not submit any
corroborating evidence that these threats were actually broadcast or
directed at him. Thus, there is insufficient evidence to support a
finding either that Mr. Ferrall made these threats or that they were
directed toward Complainant in retaliation for filing indecency
complaints.
14. Allegations that Beasley's Counsel Has Filed Retaliatory Lawsuits
Against the Complainant. The Complainant alleges that Beasley's local
counsel, Norman Kent, has filed civil lawsuits against him at the
direction of Beasley as a consequence of his indecency complaints.
Specifically, the Complainant states that Mr. Kent sent him a letter,
dated August 24, 2004, threatening to initiate complaints to the
Florida Bar and lawsuits as a consequence of the Complainant's
complaints to the Commission about broadcasts of the "Howard Stern
Show." The record includes a copy of the letter that the Complainant
received from Mr. Kent, on behalf of Beasley, which also concerns the
Complainant's allegations, made in the Complainant's written
communications to the Department of Justice and others, that Beasley
and its General Counsel are engaged in criminal activity and are
facilitating a criminal enterprise based upon the broadcast of the
"Howard Stern Show" over Station WQAM(AM). Although Mr. Kent's letter
states that such untruthful allegations of criminal conduct may result
in a libel or slander suit, it also specifically states that this
matter is separate and distinct from any complaints about Station
WQAM(AM)'s programming and that Beasley respects the Complainant's
right to file such complaints. The Complainant has submitted the
complaint and amended complaint in the lawsuit that Mr. Kent, in his
individual capacity, subsequently filed in November 2004, but these
documents do not substantiate his claim that Mr. Kent's lawsuit was
filed at the direction of Beasley in order to harass and intimidate
him. Among other things, the complaint in Mr. Kent's lawsuit alleges
that in widely disseminated written communications, the Complainant
characterized him as a "license-suspended drug and porn lawyer;" a
"drug lawyer who has been suspended from the practice of law," when in
fact, Mr. Kent was apparently at the time a member of the Florida Bar
in good standing; and accused Mr. Kent of other criminal misconduct,
including extortion and tax evasion.
15. The Complainant also alleges that Beasley and Kent made material
misrepresentations by stating that Beasley did not know about the
November 2004 lawsuit until after it was filed and that Beasley
impermissibly removed information concerning its prior knowledge of
this lawsuit from the public inspection file for Station WQAM(AM). The
Complainant alleges that he found in Station WQAM(AM)'s public file
ineffectively redacted e-mail correspondence sent between Mr. Kent and
Beasley's in-house counsel prior to the lawsuit's filing that apprised
Beasley of Mr. Kent's decision to file a defamation suit against the
Complainant. However, Mr. Kent's representations concerning whether or
not Beasley knew of this lawsuit were made to the Complainant and his
counsel and not to the Commission. Moreover, Mr. Kent claims that this
was only an "informal e-mail" advising Beasley that he was
contemplating the litigation, in order to inform Beasley that if he
initiated the suit, it could generate a conflict that might affect his
ability to represent Beasley. This e-mail was a redacted, privileged
communication not required to be placed in WQAM(AM)'s public
inspection file but apparently was placed there by mistake. Under
these circumstances, there is no merit to the Complainant's argument
that it was improperly removed from the public file. Although Section
73.3526(e)(10) of the Commission's rules requires retention of
documents having a substantial bearing on a Commission investigation
or complaint, this rule provision is not applicable to the e-mail
correspondence between Beasley and Mr. Kent. As discussed above, the
record does not substantiate the Complainant's allegations that Mr.
Kent's lawsuit was filed at the direction of Beasley in order to
threaten or intimidate him. Under these circumstances, the e-mail
communication about Mr. Kent's lawsuit, filed on his own behalf, is
not a document having a substantial bearing on the complaint or the
investigation at issue here.
16. Thus, even if it is true that Beasley was aware of Mr. Kent's
intention to sue the Complainant in November 2004, prior to the filing
of the lawsuit, the record as a whole does not support a finding that
Beasley acted improperly with regard to matters raised in Mr. Kent's
August 24, 2004 correspondence or with regard to the November 2004
lawsuit that Mr. Kent filed against the Complainant. Therefore, there
is insufficient evidence that this lawsuit was conducted by or on
behalf of Beasley to dissuade Complainant to continue involvement in
the complaint proceedings.
17. The Complainant also alleges that Mr. Kent has filed another lawsuit,
and "is suing me, in his Beasley-related lawsuit for suggesting he
consumes drugs illegally" and that this lawsuit seeks money damages
against him for letters that he sent to the Florida Bar to defend
himself against bar complaints filed by Beasley. This lawsuit was
apparently filed sometime between February and May, 2006, and although
the Complainant claims that the complaint in this lawsuit links it to
Beasley, there is no evidence in the record to substantiate this claim
or the Complainant's assertion that it is "a proxy harassment device
for Beasley." In this regard, the fact that the complaint in this 2006
lawsuit may include one or more of the Complainant's communications to
the Commission, without more, is insufficient to demonstrate improper
or abusive conduct against the Complainant.
18. In fact, there is no evidence that Beasley has pursued any defamation
action or other lawsuit against the Complainant. In addition, the
record does not include documentation to substantiate the
Complainant's allegations that the lawsuits, filed by Mr. Kent in his
individual capacity, were brought on behalf of, or at the direction
of, Beasley. Indeed, the Complainant's response to our letter of
inquiry specifically requested that the Commission withhold a decision
on his allegations at least until discovery had been concluded in
Kent's first lawsuit, in "anticipation of [evidence] finding that
"Beasley was in on the intimidation up to its eyeballs." The
Complainant made additional filings with similar requests that action
be withheld in anticipation that he would make filings to substantiate
his claims. The Complainant has never submitted any evidence
sufficient to substantiate his claims. On the other hand, the record
contains Mr. Kent's statements that these civil suits were filed in
his individual capacity and not on behalf of or at the direction of
Beasley.
19. Allegations that Beasley and its Counsel Have Improperly Filed
Complaints Against The Complainant with the Florida Bar. The
Complainant alleges that Mr. Kent and attorneys at the law firm Tew
Cardenas, LLP ("Tew Cardenas"), who also represent Beasley, have filed
complaints against him with the Florida Bar on behalf of Beasley as
part of a pattern of harassment and intimidation. The Complainant,
however, has failed to provide the requisite evidence or documentation
to support these allegations.
20. The Complainant alleges that Mr. Kent filed bar complaints on behalf
of Beasley in an effort to persuade him to drop his complaints to the
Commission. The Complainant submitted a copy of one of the bar
complaints with his response to our letter of inquiry. This bar
complaint specifically states that it is not related to the
Complainant's pending indecency complaints, and acknowledges that the
Complainant has the right to protest WQAM(AM)'s programming by
communicating with the Commission about Station WQAM(AM)'s programming
and states that Beasley is not in any way asking, seeking or
attempting to inhibit the Complainant's rights to file complaints with
the Commission. Rather, the bar complaint states that it was submitted
as a result of the Complainant's dissemination of allegedly false and
misleading information and misrepresentations that Beasley is involved
in criminal activity, including extortion and racketeering, and that
its General Counsel is facilitating a criminal enterprise, which are
alleged violations of the Florida Bar's Rules of Professional Conduct.
In addition, this bar complaint alleges that the Complainant's direct
contact with Beasley officers and directors was improper and violated
the Florida Rules of Professional Conduct with respect to
communication with individuals represented by counsel. The Complainant
also alleges that Mr. Kent has filed other retaliatory complaints
against him with the Florida Bar, but has not submitted sufficient
details concerning these complaints or evidence to corroborate his
allegation that these complaints were filed as a consequence of the
pending indecency complaints that he has filed against Beasley.
21. In addition, the Complainant alleges that attorneys at Tew Cardenas
have filed complaints with the Florida Bar, including a complaint that
he improperly disclosed the contents of the redacted document that he
found in the WQAM(AM) public file and a complaint that he has falsely
stated that Beasley is connected to the porn industry. In support of
his assertion that these bar complaints were improperly brought
against him, the Complainant submits an affidavit executed by a
Beasley principal affirming that there is true, correct and complete
information in bar complaints filed by Mr. Kent and Tew Cardenas. In
addition, the Complainant has submitted a letter sent to the Florida
Bar by Tew Cardenas stating that the affidavit relates to bar
complaints filed on behalf of Beasley. The Complainant argues that
this documentation is sufficient to demonstrate that the bar
complaints were filed on behalf of Beasley and constitute
impermissible harassment. The Complainant further asserts that Beasley
and its counsel committed perjury by submitting affidavits to the
Florida Bar that the Complainant had lied by suggesting that there is
a link between Beasley and the porn industry. The fact that bar
complaints were filed on behalf of Beasley is not sufficient to
demonstrate any impermissible conduct by Beasley or its counsel.
Moreover, there is no evidence to suggest that Beasley or its
counsel's comments to the Florida Bar concerning the Complainant's
characterization of Beasley constituted perjury. The record as a whole
does not demonstrate that Beasley has filed bar complaints improperly
in order to harass and intimidate the Complainant and thus dissuade
him from filing indecency complaints with the Commission.
22. The Complainant asserts in a filing submitted on January 22, 2007,
that he has received "written assurance from The Florida Bar that ALL
of Kent's Bar complaints are going to be dismissed" and that the bar's
outside investigator has found no basis for the Tew Cardenas bar
complaints, which have been dismissed. The Complainant also argues
that the dismissal of the bar complaint concerning his statements that
Beasley is linked to the porn industry is probative of an improper
motive on Beasley's part to harass and intimidate him.
23. Beasley, however, has submitted the Florida Bar's Complaint that was
filed against the Complainant in the Florida Supreme Court on January
18, 2007. Beasley further argues that on the same day that Complainant
made representations to the Commission concerning the dismissal of the
bar complaints filed by Beasley and its counsel, he also filed suit
against the Florida Bar and would not have done so if the bar
complaints had been dismissed. Under these circumstances, Beasley
argues that the Complainant made deliberate misrepresentations to the
Commission concerning the status of the Florida disciplinary
proceedings against him.
24. The Florida Bar Complaint as filed on January 18, 2007, included
counts relating to bar complaints in which the Complainant alleges
that Beasley and its counsel have committed perjury and which relate
to the Complainant's statements that Beasley has engaged in criminal
conduct and has links to the porn industry. Consequently, contrary to
the Complainant's representations otherwise, it appears that the
Complainant initially misstated that the complaints filed by Beasley
and its counsel had been dismissed, and in fact, the Complainant's
subsequent filings appear to acknowledge that these complaints had not
been dismissed at the time he represented that they had been.
Nevertheless, it appears that subsequent to the Complainant's January
22, 2007 filing, one of the bar complaints was voluntarily dismissed.
The Complainant states that on February 20, 2007, he received a letter
from the Florida Bar indicating that a "voluntary dismissal with
prejudice" of Mr. Kent's complaint had been filed in the disciplinary
proceeding against him. In addition, Mr. Kent has provided the
Commission with a copy of a letter that he sent to the Florida Bar on
February 12, 2007, authorizing the Bar to delete from the Florida Bar
Complaint matters related to complaints that he had filed on his own
behalf. The Complainant has not submitted documentation concerning the
dismissal of this complaint to support his assertion that this
dismissal constitutes a finding by the Florida Bar that this bar
complaint was without merit. In any event, the Florida Bar Complaint
includes an additional count related to the bar complaints filed by
Tew Cardenas on behalf of Beasley and there is no indication that
these have been dismissed. Moreover, the record as a whole does not
support a finding that the bar complaints filed by Beasley or its
counsel constitute unnecessary or abusive conduct calculated to
dissuade the Complainant from pursuing indecency complaints against
Station WQAM(AM). Finally, although we are concerned that the
Complainant may have made inaccurate statements concerning the status
of the bar complaints in his January 22, 2007 filing, we find that
there is insufficient evidence in the record, in light of the timing
of the filing of the Florida Bar Complaint, on January 18, 2007, to
find that the Complainant deliberately misled the Commission.
25. The Complainant's Other Allegations Concerning Threats, Including
Threats of Physical Violence. The Complainant also alleges that in
addition to the threats against him by Scott Ferrall discussed above,
threats against him have been made by other Station WQAM(AM) on-air
program hosts and others against both him and one of his clients and
that Beasley is responsible for, orchestrated and encouraged such
threats. There is no credible evidence to corroborate these
allegations.
26. Excerpts submitted by the Complainant with respect to other alleged
threats made by Station WQAM(AM) on-air host Hank Goldberg do not
mention him by name and the Complainant has not submitted
corroborating evidence that they were actually broadcast. Moreover,
even assuming that these excerpts provide an accurate account of
statements actually made by Mr. Goldberg, there is no evidence that
these comments were uttered because the Complainant had filed
indecency complaints against the station. The Complainant himself
states that the remarks were made after he reported Mr. Goldberg to
the Internal Revenue Service for alleged tax evasion. These alleged
remarks, even if they were broadcast, appear to have been "off the
cuff" comments more appropriately characterized as a display of bad
temper rather than a calculated effort to harass or intimidate.
27. The Complainant also claims that "Joey Boots," a "regular on the
"Howard Stern Show" left a message on his answering machine expressing
the wish that his "entire family die of cancer." There is no
documentation in the record to substantiate that this threat was made,
and utterly no support for a finding that the alleged threat was made
at the behest of Beasley or its counsel. Indeed, the Complainant does
not specifically claim that Beasley or its counsel were responsible
for this threat,
28. The Complainant further alleges that on March 11, 2005, Station
WQAM(AM) on-air host Neil Rogers violated a "December 2003 Agreement"
between Rogers and the Complainant that Rogers would not "refer to him
on the air, given his long history of targeting me for harm on his
show." Beasley is not a party to the 2003 Agreement, and although the
Complainant submitted a copy of that agreement, he did not submit any
evidence that it had been approved by a court. The record also
contains the Complainant's statements disavowing the 2003 Agreement
because it never received judicial approval. In any event, it is
impossible to determine from the Complainant's submissions the exact
nature of Mr. Rogers' on-air comments because the record does not
include an excerpt or summary of the broadcast, and thus whether they
were threats of reprisal or other unnecessary and abusive conduct. The
comments appear to have been made after the Complainant's appearance
on "60 Minutes" and may have included the comment "[a] nemesis of my
lawyer (referring to Mr. Kent) was on national television last night"
without mentioning the Complainant by name. The Complainant contends
that he and his attorney warned Beasley and its counsel, in writing,
that Rogers "was building to a meltdown on the air in which he was
apparently going to go after me," and that Beasley's failure to
prevent Rogers from violating the December 2003 Agreement was
calculated to generate even more harassment of him. The Complainant's
own submissions, however, suggest that Beasley may have deleted any
on-air references that Rogers made about him. In any event, the record
does not support a finding that the comments were related to indecency
complaints. Thus, there is insufficient evidence in the record on
which to conclude that Rogers' comments were threats or that Beasley
acted improperly.
29. The Complainant nevertheless alleges that Mr. Kent has brought an
action against him in a Florida court, seeking to have him jailed on
contempt charges for violating the agreement between him and Mr.
Rogers. The record indicates that Mr. Rogers sought to enforce a 1989
settlement agreement among himself, the Complainant and other parties
unrelated to Beasley. The Complainant concedes that the 1989
settlement agreement has nothing to do with Beasley or Station
WQAM(AM), but nevertheless argues that the contempt action constitutes
harassment and intimidation because "Beasley's designated hitter [is]
trying to have me thrown in jail for violating an agreement which I
did not violate and which excludes [a contempt] remedy even if I did!"
30. The 1989 settlement agreement apparently resolved civil lawsuits
between the Complainant and Mr. Rogers and between the Complainant and
another individual that arose during a time when Mr. Rogers was the
on-air host for another station, and not WQAM(AM). Beasley was not a
party to the 1989 agreement, and it is specific to another Commission
licensee and its radio stations. The Complainant apparently received
consideration for agreeing to settle the matter, and the settlement
included, among other things, the Complainant's agreement not to file
complaints, including indecency complaints, against the licensee that
was a party to the 1989 settlement agreement. Thus, although the
Complainant suggests that the purpose of the 1989 settlement agreement
is to stop him from filing indecency complaints with the Commission
regarding Neil Rogers, the 1989 settlement agreement does not involve
Beasley or its stations and does not appear to prohibit the
Complainant from filing indecency or other complaints against Beasley
or any of its stations. It is not clear from the record whether
Beasley knew about Mr. Rogers's action to enforce the 1989 settlement
agreement before it was filed and there is no evidence that Beasley
had any involvement in Rogers's suit to enforce it.
31. We note that the Complainant states that he has filed an action in
federal court for a declaratory judgment that the 1989 settlement
agreement is void and contrary to public policy. The Complainant
apparently voluntarily entered into the 1989 settlement agreement and
received consideration for doing so, but now apparently seeks to have
the agreement set aside because it would prevent him from petitioning
the government for redress of his grievances. Although we generally
would have concerns about a private contractual agreement which
includes terms prohibiting the filing of complaints about matters
within the Commission's regulatory jurisdiction, we need not reach
this issue here because Beasley was not a party to the 1989 settlement
agreement and is not bound by it. Moreover, we decline to find that
Tew Cardenas' participation in the Complainant's federal declaratory
judgment action by entering an appearance or attending hearings in
that matter demonstrates any improper action to intimidate or harass
the Complainant. Mr. Rogers is now an on-air personality for Beasley's
Station WQAM(AM), and Beasley would appear to have a legitimate
interest in litigation that involves Mr. Rogers. The participation of
Beasley's counsel in this matter, standing alone, does not amount to
credible evidence substantiating the Complainant's allegations of
misconduct. Based upon the record as a whole, there is insufficient
evidence to support a finding that Beasley or its counsel engaged in
intimidation or abuse based on Mr. Rogers' on-air comments or the
action to enforce the 1989 settlement agreement.
32. The Complainant also alleges that Beasley and its counsel are now
harassing one of his clients, who is a former employee of Tew
Cardenas. Specifically, the Complainant states that this former
employee was wrongfully fired and that an attorney at Tew Cardenas has
harassed her as a result of her decision to engage the Complainant as
counsel in her wrongful termination action, citing his involvement in
the Beasley matters. In addition, the Complainant has submitted his
client's statement, including a declaration under penalty of perjury,
that "Tew Cardenas is harassing [her] to retaliate against [the
Complainant] to directly serve the interest of Beasley Broadcast Group
as it deals with its FCC-related problems." The client further states
that she has learned that Tew Cardenas claims that the Complainant is
representing her to pursue a vendetta against the firm and disavows
this claim. In addition, the client states that "Tew Cardenas and
Beasley are together pursuing their own vendetta against [the
Complainant] because of his efforts to stop the illegal airing of
indecent material on Beasley's WQAM-AM."
33. We find that the Complainant's allegations and the submission of his
client's declaration are insufficient to demonstrate any improper
conduct on the part of Beasley or its counsel with respect to matters
within the Commission's regulatory jurisdiction. The Complainant's
client appears to be pursuing a wrongful termination action against
Tew Cardenas and this matter is completely unrelated to Beasley or
indecency complaints filed against it. The client does not provide any
basis for her assertion that Tew Cardenas is threatening her in an
effort to dissuade the Complainant's continued participation in these
complaint proceedings.
34. Conclusion. As set forth above, we find that the Complainant has
failed to present evidence sufficient to demonstrate that Beasley has
engaged in intimidation or abuse. The Complainant's allegations are
therefore without merit.
IV. ORDERING CLAUSES
35. ACCORDINGLY, IT IS ORDERED, pursuant to authority delegated in Section
0.311 of the Commission's rules, that the Formal Complaint against The
Beasley Broadcast Group, Inc. filed by John B. Thompson,
EB-04-IH-0661, IS HEREBY DENIED.
36. IT IS FURTHER ORDERED, that a copy of this Memorandum Opinion and
Order shall be sent by Certified Mail to John B. Thompson, Esquire and
to The Beasley Broadcast Group, Inc., 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, and
to Norman Elliot Kent, Esquire, Law Offices of Kent and Cormican,
P.A., 800 East Broward Boulevard, Fort Lauderdale, Florida 33301.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
See Letter from John B. Thompson, Attorney at Law, to Michael K. Powell,
Chairman, Federal Communications Commission, dated November 27, 2004
("Complaint").
See 18 U.S.C. S 1464, 47 C.F.R. S 73.3999. We have not addressed the
Complainant's indecency complaints here, but will consider them
separately.
Complaint at 6-7.
See Letter from John B. Thompson, Attorney at Law, to Michael K. Powell,
Chairman, Federal Communications Commission, dated December 14, 2004.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to John B. Thompson, Esquire, dated
December 15, 2004 ("Thompson LOI").
See 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 Response").
The Addenda filed are: Letters from John B. Thompson, Attorney at Law, to
William D. Freedman, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, dated January 6, 7, 10, 11, 12, 13, 20 and 30, 2005.
Letters from John B. Thompson, Attorney at Law to Michael K. Powell,
Chairman, Federal Communications Commission, dated January 10, February 7,
8, and 19, 2005; Letters from John B. Thompson, Attorney at Law, to
Commissioners Kathleen Q. Abernathy, Michael J. Copps, Kevin J. Martin and
Jonathan S. Adelstein, dated March 11, 15, 18, 23, and 30, 2005; Letters
from John B. Thompson, Attorney at Law, to Chairman Kevin J. Martin, dated
April 27, July 13, and 20, 2005. There were two Addenda pleadings filed
January 10, 2005, one at 4:13 p.m. and one at 6:48 p.m.
See Letter from John B. Thompson, Attorney at Law, to Chairman Kevin J.
Martin, Federal Communications Commission, dated January 22, 2007
("Thompson Supplement to LOI Response").
See Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, dated February 1, 2007 (Re:
Addendum to Sworn Statement As to Ongoing, Illegal Harassment of Jack
Thompson by Beasley and Its Lawyers).
Nor have we received a signed declaration under penalty of perjury that
the Complainant references in a letter filed with the Commission on
February 5, 2007. Letter from John B. Thompson, Attorney at Law, to Kevin
J. Martin, Chairman, Federal Communications Commission, dated February 5,
2007 (Re: Sworn Response to Beasley Attorney Norm Kent's February 2, 2007
Letter to the Commission Regarding the Ongoing, Illegal Harassment of Jack
Thompson and Its Lawyers). This letter was submitted via E-mail and does
not indicate that the original was being submitted via U.S. mail.
See 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").
See 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 March 11, 2005 ("Supplemental Reply to Thompson Complaint
").
See 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 December 16, 2005 ("Second Supplemental Reply to Thompson
Complaint ").
See 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 April 14, 2006 ("Third Supplemental Reply to Thompson
Complaint ").
See Letter from Steven A. Lerman, Esquire, Dennis P. Corbett, Esquire, and
David S. Keir, Esquire, Counsel for The Beasley Broadcast Group, Inc., to
Melanie Godschall, Investigations and Hearings Division, Enforcement
Bureau, dated February 12, 2007 ("Further Reply").
See Supplemental Reply to Thompson Complaint.
We defer action on Beasley's abuse of process complaint.
See Further Reply at 4-6 and Attachment 3.
See Clear Channel Broadcasting Licenses, Inc., Notice of Apparent
Liability, 19 FCC Rcd 1768, 1777, P15 (2004) (forfeiture paid).
Id.
See Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, dated July 26, 2006.
See, e.g., "Immediate News Release 4/6/05 - Howard Stern to Face Criminal
Prosecution?" ("Miami attorney Jack Thompson, who knocked Howard Stern off
all Clear Channel radio stations in February 2004 and also secured
$500,000 in FCC fines against the Stern show, has been calling upon the
FCC for a year to refer all findings of indecency to the Justice
Department for criminal prosecution. It appears that Howard Stern himself
now knows that that is a possibility. Thompson intends to bring a writ of
mandamus action to compel such criminal referrals to Justice if they are
not forthcoming. One set of potential criminal defendants would be
corporate officials at Beasley Broadcast Group, Inc. of Naples, Florida,
for its continued airing of Stern despite FCC decency fines in 2000 and
numerous pending investigations."); "Immediate News Release 6/03/05 - GOP
Bush Insider Caught in Web of Porn and Perjury (referring to "GOP donor
Beasley Broadcast Group" and its counsel Tew Cardenas).
See Letter from John B. Thompson, Esquire, to Al Lawn, Legal Counsel, Talk
America, dated September 21, 2004 Re: Criminal Activity by Beasley
Broadcasting ("Beasley Broadcasting is indeed engaged in certain criminal
activity. They are violating 18 U.S.C. 1464"), copied via E-mail to
William D. Freedman, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, December 14, 2004.
See, e.g., E-mail from Jack Thompson, Esquire to Kevin Martin, Chairman,
Federal Communications Commission, dated May 5, 2005, subject "This is how
you stop a criminal enterprise at a radio station." Letter from John B.
Thompson, Esquire, to The Honorable Jeb Bush, Governor, State of Florida,
dated May 4, 2005 (characterizing Beasley as a "criminal enterprise that
has distributed pornography to children in multiple counties in Florida),
copied via E-mail to Kevin Martin, Chairman, Federal Communications
Commission, May 4, 2005.
See, e.g., Letter from John B. Thompson, Esquire, to The Honorable Jeb
Bush, dated March 24, 2005 ("There is plenty of evidence to prove the
distribution of pornography by [Beasley] to children and [its law firm's]
facilitation of that criminal activity"), copied via E-mail to Michael
Copps, Commissioner, Federal Communications Commission, March 24, 2005;
Letter from John B. Thompson, Esquire, to The Honorable Jeb Bush, dated
March 31, 2005 ("Attached hereto is my letter of March 24, 2005 asking
that you direct the Statewide Prosecutor to investigate the multi-county
criminal activity of Beasley Broadcast Group, Inc. of Naples, Florida.
This criminal activity includes the distribution of indecent material to
minors and extortion of those opposed to it."); Letter from John B.
Thompson, Esquire, to The Honorable Don Hunter, Collier County Sheriff,
re: Criminal Activity in Collier County by Naples, Florida Corporation
Beasley Broadcast Group, Inc. and its Corporate Officers and Directors,
copied via E-mail to Commissioners Kevin Martin, Michael Copps, Kathleen
Abernathy and Jonathan Adelstein, September 8, 2005 ("[I]t is my legal
opinion that Beasley has been engaged and is still engaged, in violation
of state criminal laws, specifically but not exhaustively in racketeering,
extortion, assault, distributing sexual material to minors, obstruction of
justice and perjury."). See also, nn. 23 and 24, supra.
Policy Regarding Character Qualifications in Broadcast Licensing, Report,
Order and Policy Statement, 102 FCC 2d 1179, 1196-98 P 37 (1986), recon.
denied, 1 FCC Rcd 421 (1986), appeal dismissed sub nom. National
Association for Better Broadcasting v. FCC, No. 86-1179 (D.C. Cir. Jun.
11, 1987) ("Character Policy Statement"). See also Policy Regarding
Character Qualifications in Broadcast Licensing, Amendment of Part 1, the
Rules of Practice and Procedure, Relating to Written Responses to
Commission Inquiries and the Making of Misrepresentation to the Commission
by Applicants, Permittees, and Licensees, and the Reporting of Information
Regarding Character Qualifications, Policy Statement and Order, 5 FCC Rcd
3252, P 5 (1990), recon. on other grounds, 6 FCC Rcd 3448 (1991), modified
on other grounds, 7 FCC Rcd 6564 (1992) ("1990 Modifications of Character
Policy Statement").
The complaint includes allegations that Mr. Ferrall stated that he would
"stuff his package into the caller's wife's mouth," that he would "do her
daily," and get his girlfriend to do her. In addition, the complaint
stated that Mr. Ferrall said he would assault the caller's wife and kill
his children. See Complaint filed against Station WQAM(AM), September 9,
2003. As the Complainant acknowledges, he did not file this complaint.
Letter from John B. Thompson, Attorney at Law, to Maureen Del Luca, Chief,
Investigations & Hearings Division, Federal Communications Commission,
dated September 15, 2003.
See Letter from John B. Thompson, Attorney at Law, to The Honorable Marcos
D. Jimenez, United States Attorney, Southern District of Florida, dated
November 25, 2004, at 2, and copied on the Commission.
See Thompson Response at 3-4; Thompson Supplement to LOI Response at 4.
See, e.g., Letter from John B. Thompson, Attorney at Law, to Mr. Bruce
Taylor, Senior Counsel, Criminal Division, United States Department of
Justice, dated May 11, 2005 at 2, copied via E-mail to Kevin J. Martin,
Chairman, Federal Communications Commission, May 11, 2005; Letter from
John B. Thompson, Attorney at Law, to The Chief Justice and Justices of
the Supreme Court of Florida, The President, Florida Bar, All Governors of
the Florida Bar, dated June 2, 2005 at 2, copied via E-mail to Kevin J.
Martin, Chairman, Federal Communications Commission, June 2, 2005; Letter
from John B. Thompson, Attorney at Law to George Beasley and Caroline
Beasley, Beasley Broadcast Group, dated August 10, 2006, copied via E-mail
to Kevin J. Martin, Chairman, Federal Communications Commission, August
10, 2006.
See WQAM License Limited Partnership, Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 22997, 23001 P9 (2004) (response pending).
See Thompson Supplement to LOI Response at 5-6.
See id. at 6.
See Letter from John B. Thompson, Attorney at Law, to Michael K. Powell,
Chairman, Federal Communications Commission, dated November 24, 2004 ("I
appreciate more than you may know the Commission's proposed fines,
reported yesterday against Beasley Broadcasting for the airing of indecent
material on its WQAM-AM. As you know, I was the complainant."); Complaint
at 3 ("Of all the citizen complaints filed with the FCC, only mine
resulted last week in a Forfeiture Order.").
See Response to Notice of Apparent Liability for Forfeiture, filed by
Steven A. Lerman, Esquire, Dennis P. Corbett, Esquire, and David S. Keir,
Esquire, counsel for Beasley Broadcast Group, Inc., dated January 10, 2005
("NAL Response") at 2, n.3.
In fact, even after Beasley had filed its response to the WQAM NAL, the
Complainant continued to assert that he filed both complaints at issue in
the WQAM NAL. E-mail to Michael Powell, Chairman, Federal Communications
Commission, dated January 14, 2005 at 6:50 a.m., attaching a letter to The
Honorable Conrad Burns, Chairman, Subcommittee on Communications, Senate
Commerce Committee, dated January 14, 2005, at 2 ("I was the FCC
complainant in those two actions as well.").
See Thompson Supplement to LOI Response at 6, 16-17. See NAL Response at
15-69.
See Thompson Response at 3-4.
Id. at 3, referencing an October 2, 2003 broadcast.
Id. at 3-4. Other comments that the Complainant alleges were made by Mr.
Ferrall during this broadcast, namely, "I told him that his wife was a
f--ing whore," calling him a "tea-totaling fag," and a "house whore" do
not constitute threats. Again, these excerpts do not suggest that Mr.
Ferrall mentioned the Complainant by name.
See Clear Channel Broadcasting Licenses, Inc., 19 FCC Rcd at 1777 P 15.
The Complainant also alleges that "there is more that Beasley did to me
because of the Ferrall episode, such as the on-air statement by his board
operator that they sent me pornography to my e-mail address which in fact
I got instantly and as another layer of harassment." See Thompson
Supplement to LOI Response at 6. There is no documentation in the record
to support this allegation, and even if there were there is nothing to
suggest that Beasley was aware of or directed that this e-mail be sent or
that it was in response to the Complainant's indecency filings.
See Thompson Response at 4, Exhibit B; Thompson Supplement to LOI Response
at 8.
See Thompson Response, Exhibit B.
See id.
See Norman Elliot Kent v. John Bruce Thompson, Case No. 04-18643, Circuit
Court of the 17^th Judicial Circuit, Broward County, Florida. See Thompson
Response, Exhibits G and H, which contain incomplete copies of the
complaint and amended complaint filed by Mr. Kent. The Complainant
apparently has entered into an agreement with Mr. Kent settling this
matter without admitting liability. See, e.g., Thompson Supplement to LOI
Response, at 9; Letter from John B. Thompson, Attorney at Law, to Kevin J.
Martin, Chairman, Federal Communications Commission, dated February 5,
2007 at 2; Letter from Norman Elliot Kent, Esquire, to Melanie Godschall,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated June 14, 2006. The fact that Beasley's
in-house counsel attended a meeting in which settlement of this lawsuit
was discussed does not support the Complainant's assertion that Beasley
acted improperly or directed the prosecution of this civil suit.
See Norman Elliot Kent v. John Bruce Thompson, Case No. 04-18643, Circuit
Court of the 17^th Judicial Circuit, Broward County, Florida.
See Thompson Supplement to LOI Response at 10-11. See also, Letter from
John B. Thompson, Attorney at Law, to William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, dated January
20, 2005 (Intimidation Investigation: Beasley's Lawyer Caught in a Lie
about a Material Fact). E-mail from Jack Thompson to Michael Powell,
Chairman, Federal Communications Commission, dated February 7, 2005, 1:31
p.m., Subject: More Evidence of Beasley's Ongoing Use of Mr. Kent to
Intimidate a Citizen Complainant ("Mr. Kent then filed a $20 million
lawsuit against me and wrote to me and my lawyer that `Beasley did not
even know about the lawsuit until after it was filed.'"); Letter from John
B. Thompson, Attorney at Law, to Kevin J. Martin, Chairman, Federal
Communications Commission, dated September 20, 2006 (alleging that Beasley
improperly removed and destroyed material required to be in WQAM(AM)'s
public file), Letter from John B. Thompson, Attorney at Law, to Kevin J.
Martin, Chairman, Federal Communications Commission, dated February 5,
2007 at 2.
See, e.g., Letter from John B. Thompson, Attorney at Law, to the Federal
Communications Commission, the Florida Bar, The Securities and Exchange
Commission, and others, including print and media outlets, including all
major broadcast networks, dated January 25, 2006 (indicating that Mr. Kent
sent an e-mail to the Complainant and his counsel stating that Beasley did
not know about his lawsuit until after it was filed). In addition, Mr.
Kent does not represent Beasley in this complaint proceeding. Even if he
did, we also note that an attorney's misconduct will not result in a
finding of licensee misconduct where there is no evidence to demonstrate
that the licensee authorized its counsel to engage in the misconduct or
otherwise approved the misconduct. See, e.g. Vodaphone AirTouch PLC,
Memorandum Opinion and Order, 20 FCC Rcd 6439, 6446 n. 47 (2005).
See Letter from Norman Elliot Kent to Melanie Godschall, Enforcement
Bureau, Federal Communications Commission, dated February 1, 2005.
See 47 C.F.R. S 73.3526.
See Thompson Supplement to LOI Response at 10-11; See, e.g., Letter from
John B. Thompson, Attorney at Law, to Kevin J. Martin, Chairman, Federal
Communications Commission, dated September 20, 2006. The Complainant also
alleges that removal of the privileged e-mail correspondence from the
public file violates federal criminal obstruction of justice statutes.
Thompson Supplement to LOI Response at 11.
See 47 C.F.R. S 73.3526(e)(10). See, e.g., Letter from John B. Thompson,
Attorney at Law, to Kevin J. Martin, Chairman, Federal Communications
Commission, dated September 20, 2006.
Thompson Supplement to LOI Response at 9. The record does not include the
complaint in the 2006 lawsuit, although the Complainant suggests that the
Commission should request a copy of the complaint from Mr. Kent. See
Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, dated February 5, 2007 at 3.
See Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, dated February 5, 2007 at 3.
Thompson Supplement to LOI Response at 10. See also, id at 13-14.
See id. at 14. See also Letter from John B. Thompson, Attorney at Law, to
Kevin J. Martin, Chairman, Federal Communications Commission, dated
February 5, 2007 at 3.
See Thompson Response at 2, 9.
See E-mail from Jack Thompson to Michael Powell, Chairman, Federal
Communications Commission, dated February 7, 2005, 1:31 p.m., Subject:
More Evidence of Beasley's Ongoing Use of Mr. Kent to Intimidate a Citizen
Complainant ("Please do not close this investigation of the ongoing
orchestration of intimidation until we depose the various Beasley officers
and directors. We intend to get to the bottom of this and to the bottom of
Mr. Kent's bong."); Letter from John B. Thompson, Attorney at Law, to
Chairman Michael K. Powell, dated February 28, 2005 (requesting that
investigation of Beasley's intimidation be kept open until such time as
depositions of Beasley officers and directors are taken). See also, Letter
from John B. Thompson, Attorney at Law, to Lawrence A. Kellogg, Stuart I.
Grossman, and Al Cardenas, Tew Cardenas, dated February 3, 2005
(indicating that the officers and directors of Beasley had been served
with subpoenas for depositions in Kent v. Thompson and stating if there
are motions to quash the subpoenas he will sue Beasley and that either
way, he will file additional information with the Commission, "which
cannot plausibly conclude its investigation of Beasley's on-air and
off-air threats against [him] [...] until [he] find[s] out what the board
knew and when it knew it. If we find in Kent v. Thompson that the board
was in on all this extortionate fun with both feet, then that is very bad
news indeed for Beasley at the FCC.") copied via E-mail to Michael K.
Powell, Chairman, Federal Communications Commission, February 3, 2005.
See Letter from Norman Elliot Kent to Melanie Godschall, Enforcement
Bureau, Federal Communications Commission, dated February 1, 2005; Letter
from Norman Elliot Kent to Melanie Godschall, Enforcement Bureau, Federal
Communications Commission, dated June 14, 2006; Letter from Norman Elliot
Kent to Melanie Godschall, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, dated July 6, 2006.
See Thompson Response at 5-6; Thompson Supplement to LOI Response at 8,
11-13.
See Thompson Response at 5; Thompson Supplement to LOI Response at 8.
See Thompson Response, Exhibit C.
See id. The bar complaint cites the following Florida Rules of
Professional Conduct: 4-4.1 (Truthfulness In Statements to Others), and
4-8.4 (Misconduct).
See id. The bar complaint cites the following Florida Rule of Professional
Conduct: 4-4.2 (Communication With Person Represented by Counsel).
See Thompson Supplement to LOI response at 8.
See Thompson Supplement to LOI Response at 11-12.
See Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, dated July 13, 2005
(attaching the affidavit of Caroline Beasley, Vice President and Chief
Financial Officer of Beasley Broadcast Group) filed with the Florida Bar
on July 12, 2005.
See Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, dated July 20, 2005.
See Thompson Supplement to LOI Response at 13. See also, Letter from John
B. Thompson, Attorney at Law, to Kevin J. Martin, Chairman, Federal
Communications Commission, dated December 15, 2006 at 2.
Thompson Supplement to LOI Response at 8, 12-13. The Complainant however,
also states with respect to the Tew Cardenas complaints that [a]ll that
remains of them is the assertion that I overreacted to the filing of the
Tew Cardenas/Beasley Bar complaints themselves by asserting that they were
baseless." Id. at 13.
See Further Reply at Attachment 3, The Florida Bar v. John Bruce Thompson,
Case No. SC07-80, filed January 18, 2007. ("Florida Bar Complaint"). See
also Letter from Norman Elliot Kent, Esquire, to Melanie Godschall,
Enforcement Bureau, Federal Communications Commission, dated February 2,
2007, attaching the Florida Bar Complaint. In accordance with the Florida
Bar's disciplinary procedures, a grievance committee has found probable
cause to believe that certain violations of the Florida rules regulating
attorney conduct have occurred and that discipline appears to be
warranted, and the Florida Bar has filed a complaint with the Supreme
Court of Florida. See [1]http://www.floridabar.org/TFB/TFBConsumer.nsf,
last visited on February 5, 2007. The Complaint, as originally filed,
included two counts relating to complaints concerning the Complainant's
conduct toward Beasley and its counsel. Florida Bar Complaint at 25-35,
Counts IV and V.
See Further Reply at 4-5 and Attachment 2, Jack Thompson v. The Florida
Bar and The Alabama State Bar, Case No. 48-2007-CA-000728-0 (Circuit Court
of the Ninth Judicial Circuit, Orange County, Florida) filed January 22,
2007.
See id. at 5.
See Florida Bar Complaint at 27, Count V, referencing Florida Bar File No.
2005-71,125 (11F), in which the Complainant alleges perjury on the part of
Beasley and its counsel. See n.72 supra.
In addition, the Complainant has filed a mandamus action against the
Florida Bar, inter alia, for failing to dismiss the bar complaints. The
mandamus action is separate from the lawsuit that the Complainant filed
against the Florida Bar and referenced by Beasley. See Letter from John B.
Thompson, Attorney at Law, to the Chief Justice and Justices of the
Supreme Court of Florida, dated February 5, 2007, copied via E-mail to
Kevin J. Martin, Chairman, Federal Communication Commission, at 4:51 p.m.;
E-mail from Jack Thompson to Kevin J. Martin, Chairman, Federal
Communications Commission, dated February 6, 2007, Subject: "Filing with
the Florida Supreme Court" attaching in the body "ADDITIONAL GROUNDS FOR
GRANTING PETITION FOR MANDAMUS."
See Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, dated February 20, 2007 at 2.
See Letter from Norman Elliot Kent, Esquire, to Melanie Godschall, Federal
Communications Commission, dated March 1, 2007, and attaching Mr. Kent's
letter, dated February 12, 2007, to Kenneth Marvin Director of Lawyer
Regulation, The Florida Bar.
See Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, dated February 20, 2007 at 2.
The Complainant states that this dismissal is proof that Florida Bar has
made a finding that Mr. Kent's complaint was impermissibly filed in
retaliation for his indecency complaints against Beasley and offers to
provide the letter concerning the voluntary dismissal upon the
Commission's request. As set forth above, it is not up to the Commission
to substantiate the complainant's allegations.
See Florida Bar Complaint at 27-35, Count V.
The Complainant claims that on May 10, 2005, Hank Goldberg, a WQAM(AM)
on-air host, stated that "IRS finks sometimes mess with the wrong person,
and when they do, they wind up with no knee caps." The Complainant also
claims that subsequent to these remarks, a regular caller to the show
stated that "problems such as the one posed by me are dealt with properly
`in the hood'." Letter from John B. Thompson, Attorney at Law, to Kevin J.
Martin, Chairman, Federal Communications Commission, dated May 10, 2005.
See Clear Channel Broadcasting Licenses, Inc., 19 FCC Rcd at 1777 P 15.
See, e.g., Letter from John B. Thompson, Attorney at Law, to Kevin J.
Martin, Chairman, Federal Communications Commission, dated May 10, 2005.
See Eagle Radio, Inc., 13 FCC Rcd 13869, 13871 P 6 (Mass Med. Bur. 1998)
(subsequent history omitted).
See Letter from John B. Thompson, Attorney at Law, to Steve Lerman,
Leventhal, Senter and Lerman, PLLC dated November 29, 2005, copied via
E-mail to Kevin J. Martin, Chairman, Federal Communications Commission,
November 29, 2005. (The subject line of the E-mail is "Letter to
Viacom/Infinity's Attorney Steve Lerman" and the letter asks for
information as to the whereabouts of "Joey Boots.").
Thompson Supplement to LOI Response at 14. Earlier correspondence from the
Complainant to the Commission stated that this broadcast occurred on March
14, 2005. Letter from John B. Thompson to Commissioners Kathleen Q.
Abernathy, Michael J. Copps, Kevin J. Martin, and Jonathan S. Adelstein,
dated March 23, 2005 at 2-4.
See Letter from John B. Thompson to Commissioners Kathleen Q. Abernathy,
Michael J. Copps, Kevin J. Martin, and Jonathan S. Adelstein, dated March
23, 2005, Attachment.
Mr. Kent has submitted a letter he received from the Complainant in which
the Complainant states that the 2003 Agreement is unenforceable and has
not been approved by a court. See Letter from Norman Elliot Kent, Esquire
to William Freedman, Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau, dated March 25, 2005, Attachment at Exhibits H1 and
H2.
See Thompson Supplement to LOI Response at 14. See, e.g., Letter from John
B. Thompson to Commissioners Kathleen Q. Abernathy, Michael J. Copps,
Kevin J. Martin, and Jonathan S. Adelstein, dated March 23, 2005 at 2-4.
See id; Letter from Norman Elliot Kent to William Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated March 25, 2005 at 3.
Thompson Supplement to LOI Response at 14.
See Letter from John B. Thompson to Commissioners Kathleen Q. Abernathy,
Michael J. Copps, Kevin J. Martin, and Jonathan S. Adelstein, dated March
23, 2005 at 2-4.
See Thompson Supplement to LOI Response at 14, which alleges that the
contempt action is based upon "a 1989 Agreement with his [Mr. Kent's]
client in which I promise not to try to harm Rogers in any fashion with
efforts against Cox Communications." Elsewhere in the record the
Complainant claims that Mr. Rogers' contempt action relates to the
December 2003 Agreement. See, e.g., Letter from John B. Thompson, Attorney
at Law to Commissioners Kathleen Q. Abernathy, Michael J. Copps, Kevin J.
Martin, Jonathan S. Adelstein, dated March 15, 2005 ("Beasley employee,
Neil Rogers, has now asked a Florida court of law to have me held in
contempt as a consequence of his [Mr. Rogers'] repeated violations of a
December 12, 2003 Agreement not to mention me on the air[...] I informed
you of this additional harassment yesterday."). See also, Letter from John
B. Thompson, Attorney at Law to Commissioners Kathleen Q. Abernathy,
Michael J. Copps, Kevin J. Martin, Jonathan S. Adelstein, dated March 14,
2005 ("In light of the fact that Beasley's mid-day host has augmented,
remarkably, the harassment today of me on WQAM-AM, I hereby renew my
earlier written request late last year that the FCC revoke Beasley's WQAM
license as soon as possible.").
See Letter from Norman Elliot Kent, Esquire to John B. Thompson, dated
March 16, 2005 and copied on the Commission. See Letter from Norman Elliot
Kent, Esquire to William Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, dated March 25, 2005 attaching a
Motion For a Rule to Show Cause Why Defendant John Thompson Should not be
Held in Contempt of Court for Violation of a Judicial Order. The record
does not include additional information concerning the outcome of this
Motion, although the Complainant suggests that the matter may have been
settled and then re-opened. See Letter from John B. Thompson, Attorney at
Law, to Arlene Kalish Sankel, Chief Branch Discipline Counsel, The Florida
Bar, dated May 24, 2005, copied via E-mail to Kevin J. Martin, Chairman,
Federal Communications Commission, May 24, 2005.
See Thompson Supplement to LOI Response at 14.
See Letter from Norman Elliot Kent, Esquire to William Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, dated
March 25, 2005 attaching a copy of the 1989 settlement agreement.
See id.
See Letter from Norman Elliot Kent, Esquire to William Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, dated
March 25, 2005 at 3, stating that Rogers has filed a motion to enforce the
1989 agreement without the "assistance, authorization, permission,
solicitation or request of anyone from Beasley Broadcasting, who is in no
way a party to that 15 year litigation."
See Thompson Supplement to LOI Response at 14-15.
See id. at 15.
See Letter from John B. Thompson, Attorney at Law, to Kevin J. Martin,
Chairman, Federal Communications Commission, dated February 1, 2007 (Re:
Addendum to Sworn Statement As to the On-going, Illegal Harassment of Jack
Thompson by Beasley and Its Lawyers). The Complainant includes a
declaration under penalty of perjury but has submitted this letter via
E-mail and did not indicate that he has filed a signed declaration via
U.S. mail.
E-mail from Jack Thompson to Kevin Martin, Chairman, Federal
Communications Commission, dated February 1, 2006 at 11:46 a.m., attaching
Letter from Jo Edda Rosskamp to Kevin J. Martin, Chairman, Federal
Communications Commission, dated February 1, 2007. The Commission received
this letter via E-mail, and has not received the signed declaration via
U.S. mail.
See id.
Id.
See 47 C.F.R. S 0.311.
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(continued....)
Federal Communications Commission DA 07-2279
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Federal Communications Commission DA 07-2279
References
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