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6?xxxXhXx `NQX.y.G8*X9G4  pQs4dddXVd6X@DQ@2^;@2f"n1@8"5@^*7FSS$77Sq*7*.SSSSSSSSSS77qqqSffoxffxx7Jo]oxfxfS]xff]]A.AFS7SSJSJ.SS..J.xSSSSAA.SJoJJAC.CZ*7777CE7SSfSfSfSfSfSooJfJfJfJfJ7.7.7.7.oSxSxSxSxSxSxSxSxS]JfSxSxSxS]JxSfSfSfSfSoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SJoJ].]EoSoSxSofAfESASAN:*WSASSSSSS.4}}S2S}277]]S77SS7]72t7[[[[qee*C`q.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7FSS$77Sq*7*.SSSSSSSSSS77qqqSffoxffxx7Jo]oxfxfS]xff]]A.AFS7SSJSJ.SS..J.xSSSSAA.SJoJJAC.CZ7S]SS7S777]]:S7A7o]*ASSSS.S7.Sq7SC[227`W*724S}}}Sffffffoffff7777xoxxxxxqxxxxx]fSSSSSSSoJJJJJ....SSSSSSS[SSSSSJS 6?xxxXhXx `NQX.y.G8*X9G4  pQs4dddXVd6X@DQ@ 6s4dddXh Yd `NQ5PC2XEXP*f9 xQXXW!0(X h0\  P6QhP"5@^(1< 5 "5@^!)22SN!!28!2222222222888,\HCCH=8HH!'H=YHH8HC8=HH^HH=!!/2!,2,2,!222N2222!'22H22,006!!!!()!22H,H,H,H,H,YCC,=,=,=,=,!!!!H2H2H2H2H2H2H2H2H2H2H,H2H2H2H2H282H2H,H,C,C,C,=,=,=,H2H2HH2H2H2H2(2!2!!!2'H2==)H2H2H2YHC!C)8'8'N#-2!,22222KK2LL2K!!,,2d!!22bd!,d!t!77778c<WC;X$XW  p7sQX7PC2X DXP\  P6QXP.7UC2X9xXU4  pQXIXVn6X@DQ@6HXh `NQ?^N;XJ^\  P6QP.?cN;X9Uc4  pQ?xxxXV/Xx6X@DQX@ 6?xxxXhXx `NQX.y.G8*X9G4  pQs4dddXVd6X@DQ@ 6s4dddXh Yd `NQ5PC2XEXP*f9 xQXXW!0(X h0\  P6QhPI(!XI,(\  P6Q,P{,C8*X,C*f9 xQXordPerfect Macro InterpreterHelv P P 2dE X   ' c4x  #XP\  P6Q DXP#Federal Communications Commission`(#dDA 97664 ă   yxdddy' Federal Communications Commission 5Washington, D.C. 20554  c4`(#P#XP\  P6Q DXP# In reply refer to: ` `  hhCqpp  *xxX1800B3MG bApril 3, 1997  XS4`:(# Released: April 3, 1997 ă  `% 4#G6X@`7n@##^\  P6QJP#  X/ 4#XP\  P6Q DXP#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 ` `  hhCqIn Re: WEZB(FM), New Orleans, LA ` `  hhCqFile No. BRH960131D8 ` `  hhCqApplication for Renewal of License Dear Mr. and Mrs. Benfield and Ms. Swanson:  xWe have under consideration the license renewal application of WEZB(FM), New Orleans,  xLouisiana. A timely petition to deny the WEZB(FM) license renewal was filed by Mr. and Mrs.  x}Benfield ("Petitioners") on April 26, 1996. In addition, informal objections to the license renewal  xwere filed by Greg Durel, Joan G. Heller, Cheri Buras and Robyn Estopinal. EZ New Orleans,  xqInc. ("EZ"), the licensee of WEZB(FM), filed an opposition to the petition to deny and Petitioners filed a reply.  xThe Petitioners and Mr. Durel, Ms. Heller and Ms. Buras, in their informal objections, contend  xthat WEZB(FM) has broadcast obscene and indecent programming. The Petitioners also  x<contend that WEZB(FM) broadcasts programming advocating the legalization of marijuana and  x that programming on the station attacks religious creeds and contains racial epithets and  xstereotypes. Additionally, the Petitioners contend that WEZB(FM) failed to notify its advertisers  xof format changes and made misrepresentations to its advertisers concerning its format. Ms.  xEstopinal claims that the station discusses controversial subjects in order to perpetuate negativity and "bad media." "!),**||'"Ԍ xԙ  The Petitioners and Ms. Heller also assert that WEZB(FM) has violated the Commission's public  xinspection file rule, 47 C.F.R.  73.3526. The Petitioners further state that EZ Communications,  xInc., the parent company of EZ New Orleans, Inc., is not a corporation in good standing in the  xState 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.  Xv' Standards for Assessing the Petition and Objections  xEIn assessing the merits of an objection to a license renewal application, the Commission first  xldetermines whether the petitioner or objector make specific allegations of fact which, if true,  X 4 xwould demonstrate that grant of the application would be prima facie inconsistent with the public  xinterest. If so, then the Commission proceeds to examine and weigh all of the material before  x<it, including the renewal applicant's submissions, to determine whether there is a substantial and  x'material question of fact requiring resolution in a hearing. Finally, the Commission must  X 4 x}determine whether grant or denial of the application would serve the overall public interest. See  X 4generally, Astroline Communications Co. v. FCC,  857 F. 2d 1556 (D.C. Cir. 1988).  X' UDISCUSSION ă  XQ' Allegations Concerning Obscene or Indecent Programming  xThe allegations of Mr. Durel, Ms. Heller and Ms. Buras and the allegations of the Petitioners  xconcerning indecent or obscene programming are based on WEZB(FM)'s retransmission of two  xynationally syndicated programs, "The Howard Stern Show" and "Love Phones" and on other  xprogramming produced by WEZB(FM), including "The Scoot Show" and "The Passion Show."  xVWe have reviewed the tapes and transcripts provided by the Petitioners and Ms. Heller, as well  xas other complaints we have received concerning allegedly indecent or obscene programming  xbroadcast on WEZB(FM). We conclude that certain material cited by the Petitioners and the  x"complainants does appear to be actionably indecent and that appropriate forfeiture proceedings  Xk4 xwith respect to these broadcasts are warranted.kw yO' x #C\  P6QP#э #C\  P6QP#We note that the informal objections filed by Mr. Durel and Ms. Buras do not include a tape, transcript, or  x significant excerpts of the allegedly indecent programming, and an indication of the time of day when the program  x aired. Without this documentation, the Commission is unable to make an independent determination as to whether  {O<' xD the matter broadcast is indecent or obscene. See, e.g., Shareholders of Infinity Broadcasting Corp., FCC 96495 (Dec. 26, 1996), at n. 1. Accordingly, we have issued a Notice of  xhApparent Liability to EZ New Orleans, Inc. in the total amount of $12,000 concerning six  X=4 xseparate broadcasts aired on WEZB(FM) during the period November 22, 1995 to June 3, 1996. =zw yOh#' x #C\  P6QP#э Letter to EZ New Orleans, Inc. (Licensee of WEZB(FM), New Orleans, Louisiana)(Notice of Apparent  xx Liability), April 2, 1997. With respect to the remaining complaints and other programming cited by the Petitioners  xH as indecent or obscene and for which tapes or verbatim transcripts have been provided, we conclude that no further enforcement action is appropriate.  xWe have also concluded, however, that these apparent violations do not raise a substantial and  xmaterial question of fact concerning the basic qualifications of EZ New Orleans, Inc. to be or"b , ) )||"  X4 xcremain a Commission licensee. See, e.g., KRTH(FM), 9 FCC Rcd 7112 (1994); WPGC(AM)  X4 xand WPGCFM, DA 94533 (MMB May 20, 1994). Consequently, we will not designate  xlWEZB(FM)'s renewal application for evidentiary hearing on the basis of the Petitioners' and  X4complainants allegations that the station aired indecent or obscene programming.Uw yO8' x^ #C\  P6QP#э With respect to material aired by WEZB(FM) after 10:00 p.m., no action may be taken against the licensee on  x^ indecency grounds because this material was broadcast during the "safe harbor" period of 10:00 p.m. to 6:00 a.m.  {O' xt See 47 C.F.R. Section 73.3999(b). Moreover, we do not believe that a finding of obscenity with respect to this  {O' x7 material would likely be sustainable. See Letter to Donald E. Wildmon, dated April 26, 1991 (MMB) (concerning  x complaint against WGBHTV, Boston, MA). We conclude that neither further forfeiture action on our part nor designation of WEZB(FM)'s renewal application for hearing on obscenity grounds is warranted.U  X4 Other Programming Issues  Xc4 xOther allegations advanced by the Petitioners and Ms. Estopinal concerning WEZB(FM)'s  xhprogramming do not raise a substantial and material question of fact that would disqualify  xWEZB(FM) or warrant designation of WEZB(FM)'s license renewal for hearing. Petitioners  xassert that WEZB(FM) broadcasts material that may be offensive or derogatory to certain racial  xqor religious groups, and Ms. Estopinal objects to the negative viewpoints expressed on  X 4 xWEZB(FM).% Dw yO' xH #C\  P6QP#э The Petitioners also generally allege that WEZB hosts "attack callers who disagree with them." The Petitioners'  x assertions concerning such "attacks," whether on callers or on religious groups do not demonstrate a violation of any  x Commission rule or policy. In this regard, we note that the personal attack rule, 47 C.F.R.  73.1920, provides an  x opportunity for response to attacks on the honesty, character, or integrity of an identifiable person or group made  x during the presentation of views on controversial issues of public importance. Section 73.1920 does not prohibit such  x attacks, but rather provides the opportunity for response. The Petitioners have not demonstrated that the alleged  x! attacks occurred during the discussion of issues of public importance, that any person or group attacked requested  x the opportunity to respond or that WEZB(FM) denied any request to respond. Moreover, the rule cannot be invoked  {O%' x by a third party who claims that others were the subject of attacks. See Dontron, Inc.,  6 FCC Rcd 2560 (MMB 1991). % Petitioners also object to programming broadcast on WEZB(FM) that allegedly  xcadvocated the legalization of marijuana. Commission licensees have broad discretion to choose,  xin good faith, which issues are of concern to the community and to choose the best way to  xaddress those issues. The Commission will not interfere with the broadcaster's judgment without  xa showing that the broadcaster was unreasonable or discriminatory in its selection of issues or  xthat the licensee has offered such nominal levels of responsive programming as to have  xWeffectively defaulted in its obligation to contribute to the discussion of issues facing its  XO4 xcommunity. See Philadelphia License Renewals, 5 FCC Rcd 3647, 3849 (1990), recon. denied  X:4 xp6 FCC Rcd 4191 (1991). The Petitioners and Ms. Estopinal's allegations concerning derogatory  xand offensive programming do not demonstrate that EZ has defaulted on its programming  xNobligations. Thus, the Commission would not intervene in EZ's decision to air the type of  X4 xRprogramming that the Petitioners and Ms. Estopinal cite. 47 U.S.C.  326; See, e.g., Eagle  X4Radio, Inc., 9 FCC Rcd 1294 (1994).  X4 xRThe Petitioners further allege that EZ failed to notify advertisers of changes in programming  x"format and that EZ misrepresented the station's format to some advertisers. In this regard, the", ) )||"  xhPetitioners submit letters that Mrs. Benfield received after she contacted two advertisers  x&concerning WEZB(FM)'s programming. One of these letters indicates that the advertiser was not  x aware that the station had changed from a music programming format to a talk radio format. The  x<second letter indicates that the advertiser selected WEZB(FM), and many other stations, based  xon the station's communities of license, audience demographics, and a brief description of the  xpstation's programming. In both of these letters, the advertisers stated that they had discontinued  xadvertising on WEZB(FM). However, there is no evidence that EZ mislead these advertisers  x/concerning its programming format. In any event, agreements between EZ and its advertisers  xare private contractual matters. The Commission has consistently held that it is not the  xappropriate forum in which to address private contractual disputes. Therefore, any disagreement  xbetween an advertiser and EZ would have to be adjudicated in a court of competent jurisdication.  X 4 xISee John F. Runner, Receiver, 36 RR 2d 773, 776 (1976), rev. denied 36 RR 2d 773 (1976).  xConsequently, the Petitioners' allegations, even if true, do not demonstrate that grant of the  X 4WEZB(FM) renewal would be prima facie inconsistent with the public interest.  X 4 Public Inspection File  x+The Petitioners also argue that WEZB(FM) has violated the Commission's rules concerning  xImaintenance of its public inspection file, Section 73.3526. Specifically, the Petitioners state that  xduring a visit to the station on March 29, 1996, the Petitioners found that the public inspection  xcfile was in disorder and incomplete. In particular, the Petitioners contend that listener complaint  x<letters are missing from the public inspection file. Ms. Heller also asserts that WEZB(FM) has  xcnot placed listener complaint letters concerning its programming in the station's public inspection  xfile. 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.  xIn response, EZ states that it has in place procedures to insure compliance with the requirements  xof the public inspection file rule, including periodic independent audits of the maintenance of  xWEZB(FM)'s public inspection file. Additionally, EZ states that the station's public inspection  xpfile, which is kept in binders, has been reviewed in order to correct organizational problems. EZ  xstates that it cannot locate four letters of complaint that the Petitioners claim were sent to the  xstation by listeners. EZ also states that it responded to Ms. Heller, the author of one of the  xpmissing 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.  x"The Commission considers proper maintenance of a station's public inspection file an important  X 4 xobligation of broadcast licensees. See, e.g., License Renewal Applications of Certain Commercial  X!4 xRadio Stations Serving Philadelphia, Pennsylvania, 8 FCC Rcd 6400 (MMB 1993). The rule  xprequires licensees to place specific types of information in their public inspection files in a timely  xmanner. The purpose of this requirement is to provide the public with timely information at  x_regular intervals throughout the license period. Based upon the Petitioners' and Ms. Heller's  x}statements, we believe that there may be a few listener complaint letters that are not included in"Y%, ) )||r#"  X4 xthe WEZB(FM) public inspection file.L w yOy' x #C\  P6QP#э The Petitioners refer to a separate complaint concerning the completeness of the station's public file that Mrs.  x Benfield filed on April 19, 1996. A copy of this complaint is an exhibit to the petition. However, the copy of the  x complaint does not include the attachments that were filed with the complaint and that document the four listener complaints that were apparently sent to WEZB(FM) but that are not in the station's public inspection file. L However, there is no evidence that EZ's apparent  xviolations of the public inspection file rule were widespread or repeated or that EZ had any  xintention not to comply with the rule's requirements. Instead, the record demonstrates that EZ  xhas taken steps to insure that WEZB(FM)'s public inspection file is maintained in accordance  xwith the requirements of Section 73.3526. EZ also has stated its willingness to place copies of  xthe missing letters in the station's public inspection file if copies of those letters are provided to the station.  xUnder these circumstances, we believe that even assuming that WEZB received these listener  xcomplaints but did not place them in the station's public inspection file, the resulting public file  xNdeficiencies would not disqualify EZ as a Commission licensee or raise a substantial and  xmaterial question of fact requiring designation of WEZB(FM)'s license renewal application for  X 4 x3hearing. See KayeSmith Enterprises, 71 FCC 2d 1402, 1413 (1979), aff'd 90 FCC 2d 27 (1982),  X 4 xciting Pacific Broadcasting Corp., 39 FCC 2d 1055 (1973), forfeiture issued 44 FCC 2d 1076  X 4 x(1974); WPOM Radio Partners, Ltd., 6 FCC Rcd 1413 (MMB 1991). Cf. Catoctin Broadcasting  X 4 xCorp. of New York,  2 FCC Rcd 2126, 2137 (Rev. Bd. 1987), aff'd 4 FCC Rcd 2553, recon.  X4denied 4 FCC Rcd 6312 (1989).  Xl' Corporate Standing of WEZB(FM)'s Parent in the State of Louisiana  xThe Petitioners contend that EZ Communications, Inc., EZ's parent corporation, has not made  xmandatory filings with the Secretary of State of Louisiana for several years, and thus is in  x8violation of Louisiana law. Petitioners submit the statement of the Secretary of State, dated  xVFebruary 21, 1996, certifying that EZ Communications, Inc. is not in good standing in Louisiana.  xVIn response, EZ states that its parent corporation is a publicly held company that is incorporated  xin Virginia, and that its parent has subsidiaries operating radio broadcast stations licensed to  x/communities in a number of states, including Louisiana. EZ argues that the Commission's rules  x_and policies do not require its parent to be qualified to do business in a state in which it owns  xradio stations, and that the failure of its parent to meet corporate formalities in Louisiana is not  xVan impediment to the renewal of WEZB(FM)'s license. Nevertheless, EZ states that its parent,  xEZ Communications, Inc., has taken steps to restore its corporate standing in Louisiana. EZ has  xsubmitted as an exhibit to its opposition, a statement of the Secretary of State of Louisiana, dated  xJune 4, 1996, certifying that EZ Communications, Inc. is in good standing and authorized to do business in Louisiana.  xPetitioners' allegations concerning compliance with Louisiana state corporate law do not  X"4 xdemonstrate that renewal of WEZB(FM)'s license would be prima facie inconsistent with the"", ) )|| "  xpublic interest. The Commission has traditionally declined to consider issues of a licensee's  xcompliance with the requirement of state corporate law where no challenge has been made in  X4 xstate court. See North American Broadcasting Co., Inc.,  15 FCC 2d 979, 983 (1969).  x}Furthermore, EZ Communications, Inc. has taken the appropriate steps to come into compliance  xwith Louisiana corporate law, and has demonstrated its good standing in Louisiana. Under these  xcircumstances, EZ Communications, Inc.'s actions moot any issue with regard to its corporate  Xx4standing in Louisiana. Id.  XL' GOCONCLUSION ă  x Based on the foregoing, we deny the Petition to Deny the license renewal application of  xWEZB(FM) that was filed by Kathleen N. Benfield and Glenn C. Benfield on April 26, 1996.  xWe also deny the informal objections filed by Greg Durel, Joan Heller, Cheri Buras and Robin  x Estopinal. We find that the license renewal application meets the standards set forth in 47 U.S.C.  xR 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. BRH960131D8 IS HEREBY GRANTED. ` `  hhCqSincerely, ` `  hhCqLinda B. Blair, Chief ` `  hhCqAudio Services Division ` `  hhCqMass Media Bureau ` ` F"KNcc: Greg Durel Joan Heller Cheri Buras Robin Estopinal F