**DA 07-3142**

**Released: July 13, 2007**

Ms. Victoria Strange

The Television Licensure Working Group

2184 Park Boundary Road

Louisville, Kentucky 40205

Kathleen A. Kirby, Esq.

Wiley Rein LLP

1776 K Street N.W.

Washington, DC 20006

Todd D. Gray, Esq.

Dow, Lohnes & Albertson, PLLC

1200 New Hampshire Avenue, N.W.

Suite 800

Washingtong

# Re: Applications for Renewal of License

> Station WHAS-TV, Louisville, KY (File No. BRCT-20050401BGR; Facility
> ID No. 32327)
>
> Station WKPC-TV, Louisville, KY (File No. BRET-20050331ATP; Facility
> ID No. 21432)

Dear Ms. Strange:

On January 3, 2005, 22 citizens of Louisville, Kentucky, identified as
The Television Licensure Working Group, filed a letter and signed
petition, which we consider here as an informal objection, requesting a
hearing to explore alleged violations of Commission rules by five
Louisville-area television stations, including the above-captioned
station WHAS-TV, Louisville, Kentucky, and WKPC-TV, Louisville,
Kentucky. Belo of Kentucky, Inc. ("Belo") and the Kentucky Authority for
Educational Television ("KET"), licensees of stations WHAS-TV and
WKPC-TV, respectively, filed oppositions on August 1, 2005, and August
22, 2005. On October 25, 2005, the staff issued a letter denying the
informal objection with respect to the license renewal applications of
station WAVE(TV), Louisville, Kentucky, and WLKY-TV, Louisville,
Kentucky.[^1] In this letter, we deny the informal objection filed
against the station WHAS-TV and station WKPC-TV license renewal
applications.

The petitioners request that the Commission grant the license renewals
of the named stations "contingent upon giving the residents of \[the\]
community the opportunity to discuss with \[the Commission\] and the
management of those stations specific ways to improve their public
access and be far more responsive to their audiences."[^2] The
petitioners argue that station WHAS-TV management stated that it was
station policy that no copies of information contained in the public
files could leave the main studio. The petitioners further state that
one of its members was told that a KET regional representative must be
present in order for a member of the public to view the files of all KET
affiliate stations. The petitioners argue, more generally, that the
format for issues and programming files "varies dramatically from
station to station;" that none of the named Louisville-area stations
maintains a "publicly accessible archive of its local news broadcasts;"
and that all the Louisville-area stations "are seriously lacking in
their coverage of crucial local issues."[^3] With respect to this last
allegation, the petitioners argue more specifically that "\[a\]s a
result of KET's decision to merge its Louisville affiliate (WKPC) with
its Lexington affiliate (WKMJ), there is an almost complete absence of
any local, Louisville-based programming."[^4]

Belo responds that "\[w\]hile it is WHAS-TV's policy not to permit
documents contained in the public inspection file to leave the premises,
it is [not]{.underline} the station's policy to prohibit visitors from
asking for and receiving copies."[^5] Belo states that while Ms. Strange
was informed that, while documents could not leave the premises, she was
also told that she could view the documents on site and that the station
would make copies of selected items. KET, in its separate opposition,
maintains that as a statewide noncommercial educational broadcaster, it
is entitled to maintain its main studio in a central office in
Lexington, Kentucky. KET denies that it requires regional
representatives to be present at the inspection of its stations' public
files, but rather that Ms. Smith had requested documents that were not
part of the public inspection file and were in the possession of KET's
Designated Chief Operators. KET states that it has provided ample
issue-responsive programming as documented in an attachment to the
opposition, and that "the general complaint of lack of coverage of local
issues is vague, completely unsubstantiated, and without merit."[^6]

Section 309(k)(1) of the Act states that the Commission shall grant a
license renewal application if it finds, with respect to that station,
that (a) the station has served the public interest, convenience, and
necessity; (b) there have been no serious violations by the licensee of
the Communications Act or Commission rules and regulations; and (c)
there have been no other violations by the licensee of the Act or
Commission rules or regulations which, taken together, would constitute
a pattern of abuse.[^7] With respect to whether the station has served
the public interest, the petition must first contain specific
allegations of fact sufficient to show that such a grant would be prima
facie inconsistent with the public interest.[^8] If so, the Commission
will designate the application for hearing if the allegations, together
with any opposing evidence before the Commission, raise a substantial
and material question of fact as to whether grant would serve the public
interest, or if the Commission is otherwise unable to conclude that
granting the application would serve the public interest.[^9]

Section 73.3526(c)(1) requires that the contents of a station's public
inspection file be made available for copying upon request made in
person.[^10] The petitioners have provided no support for its contention
that station WHAS-TV prohibited members of the public from copying the
contents of its public inspection file, and Belo specifically denies
this allegation. We, therefore, cannot find that the petitioners raised
a substantial and material question of fact as to whether Belo violated
section 73.3526(c)(1) of the Commission's rules. Section 73.3526(b) of
the Commission's rules, as clarified by the Commission in 1999, requires
that licensees maintain a public inspection file at the main studio,
wherever located.[^11] KET is correct that the Commission has generally
permitted statewide noncommercial broadcasters to commonly locate their
stations' main studios. It appears that the petitioners' allegations
involving the station WHAS-TV and station WKPC-TV public inspection
files may have stemmed from a misunderstanding between the petitioners
and station management in this case. We encourage all licensees,
therefore, to clearly communicate their obligations under the public
file rule to members of the public.

With respect to the programming allegations, the FCC is prohibited by
Section 326 of the Act from censoring programs or from interfering with
freedom of expression in broadcasting. The choice of what is or is not
to be covered in the presentation of broadcast news is a matter
committed to the licensee's good faith discretion. Although every
licensee has an obligation to present programming which is responsive to
the problems, needs and interests of its service area, it is the
responsibility of, and within the discretion of, each individual
licensee to select the problems, needs and interests to be covered, as
well as the particular programs to address those interests. The issues
selected by a licensee to be addressed may be determined by the
interests and nature of its audience and the availability of other
program services. Just as we concluded with respect to stations
WAVE(TV), Louisville, Kentucky, and WLKY-TV, Louisville, Kentucky, we
have no information before us to indicate that stations WHAS-TV and
WKPC-TV have violated our Rules or policies or have not acted with good
faith judgment in their news programming. Therefore, absent a showing
that there has been an abuse of discretion or a violation of our Rules,
the Commission will not substitute its judgment for that of the
licensee.

The Commission, however, currently has pending a rulemaking seeking to
standardize and enhance television broadcasters' public interest
disclosure requirements.[^12] In initiating this rulemaking, the
Commission has sought, in part, to promote discussions between the
licensee and its community about how best to meet the local public
interest obligations of the community a broadcaster serves. Broadcast
television licensees are not now required to maintain a publicly
accessible archive of local broadcasts, as requested by the petitioners.
The Commission is, however, considering in another pending rulemaking a
proposal to require broadcasters to retain for some limited time period
recordings of all their programming.[^13] In the meantime, we urge all
viewers and listeners, including the petitioners, to raise their
programming concerns directly with their local broadcaster.

Accordingly, the informal objection filed against the station WHAS-TV
and WKPC-TV license renewal applications **IS DENIED**.

Sincerely,

Barbara A. Kreisman

> Chief, Video Division

Media Bureau

[^1]: Letter from Barbara A. Kreisman, Chief, Video Division, to
    Victoria Strange, dated October 25, 2005.

[^2]: *June 29, 2005, Informal Objection*, at 3.

[^3]: *Id.*

[^4]: *Id.*

[^5]: *Belo Opposition*, at 1 (emphasis in original).

[^6]: *KET Opposition*, at 8.

[^7]: 47 U.S.C. §309(k)(1).

[^8]: 47 U.S.C. §309(d)(1); *Astroline Communications Co. Ltd.
    Partnership v. FCC,* 857 F.2d 1556 (D.C. Cir. 1988) ("Astroline").

[^9]: *Astroline*, 857 F.2d at 1561; 47 U.S.C. §309(e).

[^10]: 47 C.F.R. § 73.3526(c)(1).

[^11]: 47 C.F.R. § 73.3526(b). *Review of the Commission's Rules
    Regarding the Main Studio and the Local Public Inspection Files of
    Broadcast Television and Radio Stations*, 14 FCC Rcd 11113 (1999).

[^12]: *In the Matter of Standardized and Enhanced Disclosure
    Requirements for Television Broadcast Licensee Public Interest
    Obligations*, Notice of Proposed Rulemaking, 15 FCC Rcd 19816
    (2000).

[^13]: *In the Matter of Retention by Broadcasters of Program
    Recordings*, Notice of Proposed Rulemaking, 19 FCC Rcd 12626 (2004).