Federal Communications Commission
Washington, D.C. 20554
January 16, 2009
In Reply Refer to:
Released: January 16, 2009
Dennis J. Kelly, Esq.
P.O. Box 41177
Washington, DC 20018
John E. Fiorini, III, Esq.
Wiley, Rein & Fielding LLP
1776 K Street NW
Washington, DC 20006
WFNI(AM), Indianapolis, IN
Facility ID No. 19521
File No. BR-20040401AOH
WLHK, Shelbyville, IN
Facility ID No. 19522
File No. BRH-20040401ARD
WYXB(FM), Indianapolis, IN
Facility ID No. 51432
File No. BRH-20040401AOL
WWVR(FM), West Terre Haute, IN
Facility ID No. 68824
File No. BRH-20040401AJO
WTHI-FM, Terre Haute, IN
Facility ID No. 70652
File No. BRH-20040401AJH
Petition for Reconsideration
We have before us the petition for reconsideration ("Petition")1 filed on October 5, 2007, by
David Edward Smith ("Smith") directed to the action of the Chief, Audio Division, Media Bureau
denying his informal objection (the "Objection") and granting the above-referenced applications (the
1 Emmis filed an Opposition on October 18, 2007, and Smith filed a Reply on October 30, 2007.
"Applications") for renewal of the licenses of Stations WFNI(AM), Indianapolis, Indiana, WLHK(FM),
Shelbyville, Indiana, WYXB(FM), Indianapolis, Indiana, WWVR(FM), West Terre Haute, Indiana and
WTHI-FM, Terre Haute, Indiana (the "Stations").2 For the reasons set forth below, we deny the Petition.
. On April 1, 2004, Emmis Radio License, LLC ("Emmis") filed the Applications
to renew the Stations' licenses. On July 23, 2004, Smith filed an Objection alleging that Emmis had
engaged in a pattern of willfully broadcasting indecent language, and that Emmis had abused the
Commission's processes by allegedly supporting a "SLAPP" lawsuit filed against Smith by one of its
Station announcers.3 On August 10, 2004, the Commission adopted a Consent Decree in settlement of
Emmis' various indecency complaints,4 and on September 5, 2007, the staff denied Smith's Objection,
stating that the Complaints are barred from consideration by the terms the Consent Decree
.5 In rejecting
Smith's claim based on the SLAPP suit, the Staff Decision
stated that the Commission does not regulate
the non-broadcast activities of station personnel or announcers.6 The Staff Decision
also found, as noted
by Emmis, that the Commission had already considered and rejected Smith's abuse of process arguments
in the Order adopting the Consent Decree
and that Emmis had no involvement in the lawsuit, based on a
sworn declaration submitted by Emmis.7 On reconsideration, Smith argues that the Consent Decree
was ultra vires
in nature, "as it is nowhere contemplated in the Communications Act of 1934, as amended."8
He also argues that the Staff Decision
violated the Constitution of the United States in failing to protect
his right to notify the Commission of Emmis' airing indecent programming without fear of retaliation.
2 See Letter to David Edward Smith, et al., from the Chief, Audio Division,
Media Bureau (September 5, 2007).
3A "SLAPP" suit is a "meritless suit filed primarily to chill the defendant's exercise of First Amendment rights." 1
Am. Jur. 2d Action
38 (2007). The acronym stands for "Strategic Lawsuit against Public Participation." Id
4 See Emmis Communications Corp.,
Order, 19 FCC Rcd 16003, 16004 (2004) (the "Consent Decree
"). The Consent Decree
was entered into by the Commission and Emmis's parent corporation, Emmis Communications
Corporation ("Emmis CC"). By the terms of the Consent Decree, Emmis CC agreed to undertake certain compliance
measures and to pay the United States Treasury the sum of $300,000 in consideration for the Commission
rescinding, vacating and canceling certain forfeiture orders issued against Emmis CC-owned broadcast licensees
terminating certain inquiries, and dismissing, with prejudice, pending indecency complaints against those licensees.
In addition, the Commission agreed to refrain from taking any action against Emmis CC or any future application --
including renewal applications -- to which Emmis CC is a party, based in whole or in part on "any similar
complaints alleging violation by any [station operated by Emmis CC] of the Indecency Laws with respect to any
broadcast occurring prior to the Effective Date." The Effective Date of the Consent Decree is August 12, 2004, the
date of its public release. Petition at 3.
5 Staff Decision
6 See Eagle Radio, Inc.
, Memorandum Opinion and Order, 9 FCC Rcd 1294, 1294-95 (1994); Dale A. Owens,
Memorandum Opinion and Order, 54 FCC 2d 375, 378-79 (1975).
7 In dismissing Smith's Petition for Reconsideration of the Enforcement Bureau's June 16, 2004, letter disposing of
certain of his indecency complaints against Emmis and addressing Smith's request that the Commission deny the
renewal application for WKQX(FM), the Order adopting the Consent Decree states: "[W]e note that the lawsuit was
dismissed by the Court, with prejudice, on July 26, 2004. Moreover . . . Emmis [CC] provides the Declaration of
Charles DuCoty, General Manager of [WKQX(FM)], who represents that Emmis had no role, and provided no
encouragement or assistance to Mr. Muller, in connection with the lawsuit." Consent Decree
, 19 FCC Rcd at 16004
8 Petition at 2.
. In support of his indecency claim, Smith claimed that he "filed over 60 [indecency]
complaints with the FCC" (the "Complaints") regarding a program broadcast on the Stations called,
"Mancow's Morning Madness" (the "Program"). He further pointed to several Notices of Apparent
Liability for Forfeiture and Forfeiture Orders (collectively, the "Orders") released between 2002 and April
of 2004, in which the Commission determined that portions of the Program contained indecent material.
In rejecting Smith's indecency claims, the staff stated that the broadcasts that were the subject of the
Orders and of Smith's Objection were aired before the Effective Date of the Consent Decree.9 Although
Smith argues that the Consent Decree was beyond the scope of the Commission's authority under the Act,
the Commission has considered similar arguments and has concluded that it has requisite authority to
settle an indecency enforcement action by means of a Consent Decree.10 Moreover, the Court of Appeals
for the District of Columbia Circuit has held several times, including in Smith's own challenge to the Consent Decree
in this case, that such Consent Decrees constitute a "nonreviewable exercise of agency
discretion."11 Accordingly, Smith's indecency allegations are barred from consideration in connection
with the Applications by the terms of the Consent Decree
In support of his Abuse of Process claim, Smith asserted that Emmis had abused Commission
processes by allegedly condoning a "SLAPP" lawsuit filed against Smith by Erich "Mancow" Muller
("Muller"), the Program's host, in retaliation against Smith for filing the Complaints with the
Commission. Specifically, Smith alleged that Emmis violated numerous federal laws by interfering with
his right to participate in the Commission license renewal process, and stated that the lawsuit was filed "in
order to corruptly harass, intimidate and frighten potential witnesses to violations of [the Commission's
indecency rules.]"12 Smith states that Muller's conduct in filing the "bogus" lawsuit "was clearly
broadcast related," and that the staff is complicit in Mueller's attempt to deny Smith his constitutional
right to bring an indecency claim before the Commission, citing Isothermal Community College
and Chronicle Broadcasting Company
.13 Smith also asserts that the staff relied on, but "conveniently
ignored" the ruling in Eagle Radio, Inc
The Commission finds it of utmost importance that broadcasters
maintain effective control over station operations and personnel. Trustees of University of Pennsylvania
, 69 FCC2d 1394, 1396-97
(1978). Consistent with this requirement, we will hold a
broadcast licensee responsible for rule violations by station
employees acting within the scope of their employment. See
generally Pacifica Foundation
, 95 FCC 2d 750,764 (1983).
10 See Viacom Inc.
, Order on Reconsideration, 21 FCC Rcd 12223 (2006).
11 See David Edward Smith et al. v. FCC,
No. 06-1381, Order, (D.C. Cir. Mar. 29, 2007); Parents Television
Council, Inc. v. FCC
, No 04-1263, Order, 2004 WL 2931357 (D.C. Cir. Dec. 17, 2004).
12 Staff Decision
at 3, citing July 23, 2004, Informal Objection at 4.
13 Petition at 3. See also Isothermal Community College
, Notice of Apparent Liability for Forfeiture, 18 FCC Rcd
23932 (EB 2003) (Commission policy prohibits retaliatory conduct by licensees), citing Patrick Henry
, 69 FCC 2d
1305 (1978) (where the Commission, concerned with the "chilling" effect licensee reprisals might have on potential
complainants, found a substantial and material question of fact as to the licensee's motivations for threatening and
bringing a civil suit against a complainant); Chronicle Broadcasting Company,
Memorandum Opinion And Order,
19 FCC 2d 240 (Rev. Bd. 1969) (petition to enlarge issues granted to determine whether licensee engaged private
investigators, who sought to intimidate, coerce, and harass the petitioners).
Smith's reliance on the cited cases is misplaced. In both Isothermal
, it was
undisputed that the licensee had, to some degree, participated in the alleged prohibited conduct, thereby
providing the necessary "involvement" nexus. In the instant case, the Staff Decision
explicitly found that
Emmis had no involvement in the lawsuit.14 Eagle Radio
also is inapposite here. The filing of the alleged
SLAPP lawsuit was not within the scope of Muller's employment.
. Accordingly, IT IS ORDERED, that the October 5, 2007, Petition for
Reconsideration of David Edward Smith IS HEREBY DENIED.
Peter H. Doyle
Chief, Audio Division
cc: Emmis Radio License, LLC