**DA 08-713**

*In Reply Refer to:*

1800B3-SS

Released: March 26, 2008

Clear Channel Broadcasting Licenses, Inc.

2625 S. Memorial Dr., Suite A

Tulsa, OK 74129

Dennis J. Kelly, Esq.

P.O. Box 41177

Washington, DC 20018

In re: WMJY(FM), Biloxi, MS

Clear Channel Broadcasting

Licenses, Inc.

Facility ID No. 61368

File No. BRH-20040202ACQ

WKNN-FM, Pascagoula, MS

Clear Channel Broadcasting

Licenses, Inc.

Facility ID No. 61367

File No. BRH-20040202ACV

WBUV(FM), Moss Point, MS

Clear Channel Broadcasting

Licenses, Inc.

Facility ID No. 29687

File No. BRH-20040202ACW

**Applications for Renewal**

**Petition for Reconsideration**

Dear Applicant and Counsel:

We have before us the October 30, 2006, WJZD, Inc. ("WJZD") Petition for
Reconsideration ("Petition") of the staff's grant of the above-captioned
applications of Clear Channel Broadcasting Licenses, Inc. (the
"Licensee") for renewal of the licenses of WMJY(FM), Biloxi,
Mississippi; WKNN-FM, Pascagoula, Mississippi; and WBUV(FM), Moss Point,
Mississippi (collectively, the "Renewal Applications"). For the reasons
set forth below, we deny the Petition.

**Background.** On May 25, 2004, WJZD filed an Informal Objection
("Objection") seeking denial of the Renewal Applications or designation
of the Renewal Applications for hearing.[^1] On September 27, 2006, the
staff denied the Objection and granted the Renewal Applications ("Staff
Ruling").[^2] In its Objection, WJZD alleged that: (1) the Licensee
"engineered" an unauthorized transfer of control of its station
WQYZ(FM), Ocean Springs, Mississippi; (2) the Licensee "may have been in
violation" of Section 73.3555 of the Commission's Rules (the
"Rules");[^3] (3) the Renewal Applications should have been denied or
designated for hearing because the Licensee "is a recidivist violator of
Section 1464" of Title 18 of the United States Code due to its continued
broadcast of indecent material;[^4] and (4) the Licensee lacked the
qualifications to be a licensee based on misrepresentation and lack of
candor allegations. In the Staff Ruling, the Bureau rejected these
arguments and granted the Renewal Applications.[^5]

**Discussion.** Reconsideration in this case is governed by Section
1.106 of the Rules. Under that section, as interpreted by established
case law, "reconsideration is appropriate only when the petitioner
either shows a material error or omission in the original order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters."[^6] WJZD has
failed to make such a showing.

In its Petition,[^7] WJZD argues, as it did in its Objection, that the
grants should be rescinded and that the Renewal Applications should be
designated for hearing. WJZD argues that the staff incorrectly concluded
that Section 309(k) of the Communications Act of 1934, as amended (the
"Act"), precludes consideration of allegations of misconduct at any
station but that for which a renewal application is before the
agency.[^8] WJZD claims that the Staff Ruling "circumscribes Sections
308 and 309 \[of the\] Act in a manner not possibly contemplated by
Congress."[^9] Specifically, WJZD argues that if an applicant lacks

character qualifications, the "public interest, convenience, and
necessity" can never be served by a grant

of its application.[^10] WJZD cites *Contemporary Media, Inc. v.
FCC.*[^11]

We find that *Contemporary Media* is inapposite to this case.
*Contemporary Media* concerned a license revocation proceeding under
Section 312(a)(2) of the Act in which the Commission revoked the
broadcast licenses of a corporation because the entity was controlled by
a convicted child molester.[^12] This case concerns applications for
renewal which must be evaluated under Section 309(k) of the Act. Section
309(k) provides that we are to grant a broadcast station's license
renewal application if, upon consideration of the application and
pleadings, we find *with respect to that station* that: (1) the station
has served the public interest, convenience, and necessity; (2) there
have been no serious violations of the Communications Act or the
Commission's Rules with respect to that station; and (3) there have been
no other violations which, taken together, constitute a pattern of
abuse.[^13] If, however, the licensee fails to meet that standard, the
Commission may deny the application -- after notice and opportunity for
a hearing under Section 309(e) of the Act -- or grant the application
"on terms and conditions that are appropriate, including a renewal for a
term less than the maximum otherwise permitted."[^14] Section 309(k)
precludes consideration of allegations of misconduct at any station but
that for which a renewal application is before the agency. This position
is reflected in the broadcast license renewal form and
instructions.[^15] Because in the instant matter, the alleged misconduct
took place at a station, *i.e*., WQYZ(FM), other than the stations whose
renewal applications are before us, *i.e.,* WMJY(FM), WKNN-FM, and
WBUV(FM), we may not consider those allegations in connection with our
evaluation of the renewal of the station licenses.[^16] We correctly
stated the Commission's holding on this issue in the Staff Ruling.

In addition, WJZD argues that "Clear Channel/Capstar is a serial
violator of 18 U.S.C. § 1464, and its systematic attempts to pervert its
youthful listeners ought to bring its corporate character qualifications
into question."[^17] However, WJZD does not cite any instances in which
any of the captioned stations have broadcast allegedly indecent
programming. Rather, WJZD references its Objection in which it claims
that the Renewal Applications should not be granted because of indecent
programming aired on other Licensee stations.[^18] For the reasons set
forth above, this argument is misplaced. Moreover, the Commission
previously has addressed the issue of allegedly indecent programming of
other Licensee stations. By terms of a Consent Decree[^19] entered into
between Clear Channel Communications, Inc. ("Clear Channel")[^20] and
the Commission to resolve certain matters before the agency involving
the possible violation by Clear Channel of the restrictions in the
broadcast of obscene, indecent or profane material,[^21] Clear Channel
agreed to undertake certain compliance measures and to pay the United
States Treasury the sum of \$1,750,000 in consideration for the
Commission rescinding, vacating and canceling certain forfeiture orders
and notices of apparent liability for forfeiture issued against Clear
Channel-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 Clear Channel or any future application \-- including
renewal applications \-- to which Clear Channel is a party, based in
whole or in part on "any similar complaints alleging violation by any
\[station operated by Clear Channel\] of the indecency laws with respect
to any broadcast occurring prior to the effective date."[^22] The
Consent Decree became effective on June 9, 2004, the date of its public
release.[^23] All of the alleged indecent programming of which WJZD
complains either is specifically mentioned in the Consent Decree or
otherwise occurred before June 9, 2004.[^24] Finally, we note that WJZD
has not alleged any subsequent instances of indecent programming by the
Licensee.

Because WJZD's Petition fails to show a material error or omission in
the original decision and did not raise additional facts unknown or not
existing until after WJZD's last opportunity to present such matters,
the Petition will be denied.[^25]

**Conclusion/Actions.** For the reasons set forth above, WJZD's Petition
fails to meet the standard set forth in Section 1.106(c) of the Rules.
Accordingly, WJZD, Inc.'s Petition for Reconsideration IS DENIED.

Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Martha E. Heller, Esq.

WJZD, Inc.

[^1]: The Licensee filed an Opposition to the WJZD Objection on August
    25, 2004.

[^2]: *See Letter to Clear Channel Broadcasting Licenses, Inc.,* 21 FCC
    Rcd 10756 (2006).

[^3]: 47 C.F.R. § 73.3555.

[^4]: WJZD did not point to any specific indecency allegations involving
    any of the three captioned stations. *See WJZD, Inc., Golden Gulf
    Coast Broadcasting, Inc., and Capstar TX Limited Partnership,* 20
    FCC Rcd 9941 (MB 2005) (issue of indecency complaints resolved by
    Consent Decree need not be further addressed).

[^5]: *See* n.2, *supra.*

[^6]: *WWIZ, Inc.*, Memorandum Opinion and Order, 37 F.C.C. 685, 686
    (1964), *aff'd sub nom. Lorain Journal Co. v. FCC,* 351 F.2d 824
    (D.C. Cir. 1965), *cert. denied,* 387 U.S. 967 (1966). *See also
    National Association of Broadcasters,* Memorandum Opinion and Order,
    18 FCC Rcd 24414, 24415 (2003). *See also* 47 C.F.R. § 1.106(c).

[^7]: WJZD requests that we consolidate its June 27, 2005, Petition for
    Reconsideration of the staff's grant of WQYZ(FM)'s applications for
    assignment and renewal with the Petition. WJZD's request is moot
    because the staff dismissed the June 27, 2005, pleading on March 12,
    2007. *See Letter to Lawrence E. Steelman and Capstar TX Limited
    Partnership,* 22 FCC Rcd 4866 (MB 2007). An Application for Review
    filed by WJZD on April 11, 2007, in the WQYZ(FM) proceeding, is
    pending.

[^8]: We note that this position is reflected in the broadcast license
    renewal form and instructions. *See* FCC Form 303-S, Section II,
    Item 4, and concomitant instructions.

[^9]: Petition at 2.

[^10]: *Id.*

[^11]: 214 F.3d 187 (D.C. Cir. 2000) ("*Contemporary Media*").

[^12]: *See Contemporary Media, Inc.,* Order to Show Cause and Notice of
    Apparent Liability, 10 FCC Rcd 13685 (1995); *see also* 47 U.S.C. §
    312(a)(2).

[^13]: 47 U.S.C. §309(k)(1) (emphasis supplied). The renewal standard
    was amended to read as described by Section 204(a) of the
    Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
    (1996). *See Order, Implementation of Sections 204(a) and 204(c) of
    the Telecommunications Act of 1996 (Broadcast License Renewal
    Procedures)*, 11 FCC Rcd 6363 (1996); *see also Citadel Broadcasting
    Company, WWWZ(FM), Summerville, South Carolina, et al.,* Memorandum
    Opinion and Order and Notice of Apparent Liability, 22 FCC Rcd 7083
    at n.46 (2007).

[^14]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^15]: *See* FCC Form 303-S, Section II, Item 4 and concomitant
    instructions.

[^16]: *See* 47 U.S.C. § 309(k)(1); *see also Letter to Rick Morrison
    from Peter H. Doyle, Chief, Audio Services Division,* 21 FCC Rcd
    2193 (MB 2006).

[^17]: Petition at 3.

[^18]: *See* WJZD Objection at 3.

[^19]: *Clear Channel* *Communications, Inc.,* Consent Decree, 19 FCC
    Rcd 10880 (2004) ("Consent Decree"); *see also* n.4, *supra.*

[^20]: Licensee is a wholly-owned subsidiary of Clear Channel.

[^21]: *See* [18 U.S.C. §
    1464](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=18USCAS1464&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    and [47 C.F.R. §
    73.3999](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW8.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=47CFRS73.3999&db=1000547&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^22]: *See* Consent Decree, ¶ 8.

[^23]: *Id.* at ¶ 2(h).

[^24]: *See* WJZD Objection at 3.

[^25]: *See* *Infinity Broadcasting Operations, Inc*., Memorandum
    Opinion and Order, 19 FCC Rcd 4216 (2004).