******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 In reply refer to: 1800B3-MG April 3, 1997 Released: April 3, 1997 Kathleen N. Benfield Glenn C. Benfield 10505 Alan Street River Ridge, Louisiana 70123 M. Anne Swanson, Esq. Koteen & Naftalin, L.L.P. 1150 Connecticut Avenue Washington, D.C. 20036 In Re: WEZB(FM), New Orleans, LA File No. BRH-960131D8 Application for Renewal of License Dear Mr. and Mrs. Benfield and Ms. Swanson: We have under consideration the license renewal application of WEZB(FM), New Orleans, Louisiana. A timely petition to deny the WEZB(FM) license renewal was filed by Mr. and Mrs. Benfield ("Petitioners") on April 26, 1996. In addition, informal objections to the license renewal were filed by Greg Durel, Joan G. Heller, Cheri Buras and Robyn Estopinal. EZ New Orleans, Inc. ("EZ"), the licensee of WEZB(FM), filed an opposition to the petition to deny and Petitioners filed a reply. The Petitioners and Mr. Durel, Ms. Heller and Ms. Buras, in their informal objections, contend that WEZB(FM) has broadcast obscene and indecent programming. The Petitioners also contend that WEZB(FM) broadcasts programming advocating the legalization of marijuana and that programming on the station attacks religious creeds and contains racial epithets and stereotypes. Additionally, the Petitioners contend that WEZB(FM) failed to notify its advertisers of format changes and made misrepresentations to its advertisers concerning its format. Ms. Estopinal claims that the station discusses controversial subjects in order to perpetuate negativity and "bad media." The Petitioners and Ms. Heller also assert that WEZB(FM) has violated the Commission's public inspection file rule, 47 C.F.R.  73.3526. The Petitioners further state that EZ Communications, Inc., the parent company of EZ New Orleans, Inc., is not a corporation in good standing in the State of Louisiana. For these reasons, the Petitioners and the informal objectors contend that the WEZB(FM) renewal application should be denied or designated for hearing. Standards for Assessing the Petition and Objections In assessing the merits of an objection to a license renewal application, the Commission first determines whether the petitioner or objector make specific allegations of fact which, if true, would demonstrate that grant of the application would be prima facie inconsistent with the public interest. If so, then the Commission proceeds to examine and weigh all of the material before it, including the renewal applicant's submissions, to determine whether there is a substantial and material question of fact requiring resolution in a hearing. Finally, the Commission must determine whether grant or denial of the application would serve the overall public interest. See generally, Astroline Communications Co. v. FCC, 857 F. 2d 1556 (D.C. Cir. 1988). DISCUSSION Allegations Concerning Obscene or Indecent Programming The allegations of Mr. Durel, Ms. Heller and Ms. Buras and the allegations of the Petitioners concerning indecent or obscene programming are based on WEZB(FM)'s retransmission of two nationally syndicated programs, "The Howard Stern Show" and "Love Phones" and on other programming produced by WEZB(FM), including "The Scoot Show" and "The Passion Show." We have reviewed the tapes and transcripts provided by the Petitioners and Ms. Heller, as well as other complaints we have received concerning allegedly indecent or obscene programming broadcast on WEZB(FM). We conclude that certain material cited by the Petitioners and the complainants does appear to be actionably indecent and that appropriate forfeiture proceedings with respect to these broadcasts are warranted. Accordingly, we have issued a Notice of Apparent Liability to EZ New Orleans, Inc. in the total amount of $12,000 concerning six separate broadcasts aired on WEZB(FM) during the period November 22, 1995 to June 3, 1996. We have also concluded, however, that these apparent violations do not raise a substantial and material question of fact concerning the basic qualifications of EZ New Orleans, Inc. to be or remain a Commission licensee. See, e.g.,KRTH(FM), 9 FCC Rcd 7112 (1994); WPGC(AM) and WPGC-FM, DA 94-533 (MMB May 20, 1994). Consequently, we will not designate WEZB(FM)'s renewal application for evidentiary hearing on the basis of the Petitioners' and complainants allegations that the station aired indecent or obscene programming. Other Programming Issues Other allegations advanced by the Petitioners and Ms. Estopinal concerning WEZB(FM)'s programming do not raise a substantial and material question of fact that would disqualify WEZB(FM) or warrant designation of WEZB(FM)'s license renewal for hearing. Petitioners assert that WEZB(FM) broadcasts material that may be offensive or derogatory to certain racial or religious groups, and Ms. Estopinal objects to the negative viewpoints expressed on WEZB(FM). Petitioners also object to programming broadcast on WEZB(FM) that allegedly advocated the legalization of marijuana. Commission licensees have broad discretion to choose, in good faith, which issues are of concern to the community and to choose the best way to address those issues. The Commission will not interfere with the broadcaster's judgment without a showing that the broadcaster was unreasonable or discriminatory in its selection of issues or that the licensee has offered such nominal levels of responsive programming as to have effectively defaulted in its obligation to contribute to the discussion of issues facing its community. See Philadelphia License Renewals, 5 FCC Rcd 3647, 3849 (1990), recon. denied 6 FCC Rcd 4191 (1991). The Petitioners and Ms. Estopinal's allegations concerning derogatory and offensive programming do not demonstrate that EZ has defaulted on its programming obligations. Thus, the Commission would not intervene in EZ's decision to air the type of programming that the Petitioners and Ms. Estopinal cite. 47 U.S.C.  326; See, e.g., Eagle Radio, Inc., 9 FCC Rcd 1294 (1994). The Petitioners further allege that EZ failed to notify advertisers of changes in programming format and that EZ misrepresented the station's format to some advertisers. In this regard, the Petitioners submit letters that Mrs. Benfield received after she contacted two advertisers concerning WEZB(FM)'s programming. One of these letters indicates that the advertiser was not aware that the station had changed from a music programming format to a talk radio format. The second letter indicates that the advertiser selected WEZB(FM), and many other stations, based on the station's communities of license, audience demographics, and a brief description of the station's programming. In both of these letters, the advertisers stated that they had discontinued advertising on WEZB(FM). However, there is no evidence that EZ mislead these advertisers concerning its programming format. In any event, agreements between EZ and its advertisers are private contractual matters. The Commission has consistently held that it is not the appropriate forum in which to address private contractual disputes. Therefore, any disagreement between an advertiser and EZ would have to be adjudicated in a court of competent jurisdication. See John F. Runner, Receiver, 36 RR 2d 773, 776 (1976), rev. denied 36 RR 2d 773 (1976). Consequently, the Petitioners' allegations, even if true, do not demonstrate that grant of the WEZB(FM) renewal would be prima facie inconsistent with the public interest. Public Inspection File The Petitioners also argue that WEZB(FM) has violated the Commission's rules concerning maintenance of its public inspection file, Section 73.3526. Specifically, the Petitioners state that during a visit to the station on March 29, 1996, the Petitioners found that the public inspection file was in disorder and incomplete. In particular, the Petitioners contend that listener complaint letters are missing from the public inspection file. Ms. Heller also asserts that WEZB(FM) has not placed listener complaint letters concerning its programming in the station's public inspection file. However, the Petitioners also acknowledge that a subsequent visit to WEZB(FM) revealed that some additional complaints had been placed in the public inspection file. In response, EZ states that it has in place procedures to insure compliance with the requirements of the public inspection file rule, including periodic independent audits of the maintenance of WEZB(FM)'s public inspection file. Additionally, EZ states that the station's public inspection file, which is kept in binders, has been reviewed in order to correct organizational problems. EZ states that it cannot locate four letters of complaint that the Petitioners claim were sent to the station by listeners. EZ also states that it responded to Ms. Heller, the author of one of the missing complaint letters, after Ms. Heller contacted the station directly about her missing letter, in order to request a copy of that letter for the station's public inspection file. The Commission considers proper maintenance of a station's public inspection file an important obligation of broadcast licensees. See, e.g., License Renewal Applications of Certain Commercial Radio Stations Serving Philadelphia, Pennsylvania, 8 FCC Rcd 6400 (MMB 1993). The rule requires licensees to place specific types of information in their public inspection files in a timely manner. The purpose of this requirement is to provide the public with timely information at regular intervals throughout the license period. Based upon the Petitioners' and Ms. Heller's statements, we believe that there may be a few listener complaint letters that are not included in the WEZB(FM) public inspection file. However, there is no evidence that EZ's apparent violations of the public inspection file rule were widespread or repeated or that EZ had any intention not to comply with the rule's requirements. Instead, the record demonstrates that EZ has taken steps to insure that WEZB(FM)'s public inspection file is maintained in accordance with the requirements of Section 73.3526. EZ also has stated its willingness to place copies of the missing letters in the station's public inspection file if copies of those letters are provided to the station. Under these circumstances, we believe that even assuming that WEZB received these listener complaints but did not place them in the station's public inspection file, the resulting public file deficiencies would not disqualify EZ as a Commission licensee or raise a substantial and material question of fact requiring designation of WEZB(FM)'s license renewal application for hearing. See Kaye-Smith Enterprises, 71 FCC 2d 1402, 1413 (1979), aff'd 90 FCC 2d 27 (1982), citing Pacific Broadcasting Corp., 39 FCC 2d 1055 (1973), forfeiture issued 44 FCC 2d 1076 (1974); WPOM Radio Partners, Ltd., 6 FCC Rcd 1413 (MMB 1991). Cf. Catoctin Broadcasting Corp. of New York, 2 FCC Rcd 2126, 2137 (Rev. Bd. 1987), aff'd 4 FCC Rcd 2553, recon. denied 4 FCC Rcd 6312 (1989). Corporate Standing of WEZB(FM)'s Parent in the State of Louisiana The Petitioners contend that EZ Communications, Inc., EZ's parent corporation, has not made mandatory filings with the Secretary of State of Louisiana for several years, and thus is in violation of Louisiana law. Petitioners submit the statement of the Secretary of State, dated February 21, 1996, certifying that EZ Communications, Inc. is not in good standing in Louisiana. In response, EZ states that its parent corporation is a publicly held company that is incorporated in Virginia, and that its parent has subsidiaries operating radio broadcast stations licensed to communities in a number of states, including Louisiana. EZ argues that the Commission's rules and policies do not require its parent to be qualified to do business in a state in which it owns radio stations, and that the failure of its parent to meet corporate formalities in Louisiana is not an impediment to the renewal of WEZB(FM)'s license. Nevertheless, EZ states that its parent, EZ Communications, Inc., has taken steps to restore its corporate standing in Louisiana. EZ has submitted as an exhibit to its opposition, a statement of the Secretary of State of Louisiana, dated June 4, 1996, certifying that EZ Communications, Inc. is in good standing and authorized to do business in Louisiana. Petitioners' allegations concerning compliance with Louisiana state corporate law do not demonstrate that renewal of WEZB(FM)'s license would be prima facie inconsistent with the public interest. The Commission has traditionally declined to consider issues of a licensee's compliance with the requirement of state corporate law where no challenge has been made in state court. See North American Broadcasting Co., Inc., 15 FCC 2d 979, 983 (1969). Furthermore, EZ Communications, Inc. has taken the appropriate steps to come into compliance with Louisiana corporate law, and has demonstrated its good standing in Louisiana. Under these circumstances, EZ Communications, Inc.'s actions moot any issue with regard to its corporate standing in Louisiana. Id. CONCLUSION Based on the foregoing, we deny the Petition to Deny the license renewal application of WEZB(FM) that was filed by Kathleen N. Benfield and Glenn C. Benfield on April 26, 1996. We also deny the informal objections filed by Greg Durel, Joan Heller, Cheri Buras and Robin Estopinal. We find that the license renewal application meets the standards set forth in 47 U.S.C.  309(k), and that grant the license renewal of WEZB(FM) would serve the public interest. Accordingly, the license renewal application for WEZB(FM), New Orleans, Louisiana, File No. BRH-960131D8 IS HEREBY GRANTED. Sincerely, Linda B. Blair, Chief Audio Services Division Mass Media Bureau