Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File. No. BRH-19980202X6     |
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| SAGITTARIUS BROADCASTING CORP.   | ) |                              |
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| Application for Renewal of       | * |                              |
| License                          |   |                              |
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| WXRK(FM), New York, New York     | * |                              |
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| Facility ID #58579               | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: October 8, 2003 Released: October 30, 2003**

By the Commission: Commissioner Copps dissenting and issuing a
statement.

1.  The Commission has before it a March 23, 2001, Application for
    Review from Al Westcott ("Westcott"), a resident of Ojai,
    California.[^1] Westcott filed a petition to deny the license
    renewal application of station WXRK(FM), New York, New York, based
    on the station's origination of a radio show containing allegedly
    indecent material. Westcott is able to hear the show on station
    KLSX(FM), Los Angeles, California which receives the program via
    satellite.[^2] The staff renewed WXRK's license after fully
    considering Westcott's submission as an informal objection.[^3] The
    staff dismissed Westcott's petition for reconsideration based on the
    principle that informal objectors are not parties in interest and
    thus have no standing to seek reconsideration.[^4] On review,
    Westcott alleges that the staff erroneously treated him as an
    informal objector and should have accorded him standing as a
    "listener" of the New York station. We disagree. Westcott fails to
    establish standing because he is a listener of his local California
    station, not of station WXRK, New York, New York, and fails to
    demonstrate that Californians like himself are aggrieved by renewal
    of the distant station's license. Accordingly, we affirm.

    **I. BACKGROUND**

2.  Westcott claims an interest in WXRK(FM) based on the station's
    origination of "The Howard Stern Show" ("Stern Show"), which he
    argues has included multiple broadcasts of indecent material in
    violation of 18 U.S.C. Section 1464. Westcott maintains that he
    should be considered a WXRK listener with standing to challenge
    grant of the station's license renewal application because WXRK
    transmits the Stern Show to other stations, including station KLSX
    in Westcott's listening area.[^5] Westcott submitted Stern Show
    transcripts allegedly supporting his indecency claim, all deriving
    from material heard on stations other than WXRK.[^6] The staff has
    previously found some of this material actionably indecent with
    respect to other stations, with resulting enforcement actions such
    as monetary forfeitures.[^7] The Commission has considered
    additional material submitted by Westcott in other contexts, finding
    no actionable indecency.[^8] Westcott believes that the staff should
    aggregate complaints made against individual stations carrying the
    Stern Show, and consider those complaints against WXRK's license
    renewal application because WXRK is the Stern Show's "flagship"
    station.

3.  The staff found Westcott without standing to challenge WXRK's
    license renewal application. It determined that Westcott neither
    lives within WXRK's service area nor demonstrates that he actually
    listens to broadcasts on WXRK. The staff nevertheless considered the
    merits of Westcott's pleading as an informal objection.[^9] It
    determined that Westcott had not raised any substantial and material
    questions under the applicable standards for license renewal.[^10]
    The staff observed, for example, that there was no evidence that the
    allegedly indecent material at issue was actually broadcast over
    WXRK. The staff reasoned that because WXRK had instituted
    independent editing of the Stern Show from November 20, 1996,
    onward, WXRK was able to independently excise indecent material from
    its broadcasts of the Stern Show, thereby negating a previous
    presumption that all Stern Show material heard on other stations
    also aired on WXRK.[^11] The Commission noted the staff's approval
    of the WXRK renewal application when it approved subsequent transfer
    applications by the station's parent company, which were opposed by
    Westcott based on similar evidence.[^12] Westcott filed a petition
    for reconsideration of the renewal decision, which the staff
    dismissed for lack of standing. Westcott maintains that the staff
    erred in finding him without standing. The threshold issue presented
    on review is whether a person has standing in a Commission
    proceeding to challenge the renewal of a distant station's license
    if he is a listener of a local station that broadcasts a version of
    the distant station's originally produced programming.

# DISCUSSION

4.  The Commission recognizes the value of broad-based participation in
    its proceedings, on either a formal or informal basis. We provide an
    opportunity for the public to file informal objections against
    initial applications and accept informal complaints so that people
    who do not satisfy the requirements for formal participation may
    nevertheless bring useful information to our attention.[^13]
    Moreover, we require broadcast stations to make on-air announcements
    before and after the filing applications for license renewal, to
    inform the community of the opportunity to file formal petitions or
    informal comments.[^14] The staff considers all such submissions,
    whether formal or informal, prior to making an initial decision.
    However, a person generally does not have standing to seek further
    redress thereafter unless he was a formal participant at the initial
    stage.[^15]

5.  Formal participation at the initial stage of a license renewal
    proceeding is accomplished by filing a complete and timely petition
    to deny that demonstrates the petitioner's standing.[^16]
    Specifically, Section 309(d)(1) of the Communications Act of 1934,
    as amended ("Act"), implemented by Section 73.3584 of the
    Commission's rules, provides that a person filing a petition to deny
    must demonstrate that he or she is a "party in interest."[^17]
    Similarly, Section 405 of the Act, implemented by Section 1.106 of
    the Commission's rules, requires that a person seeking
    reconsideration must have qualified as a "party" during the previous
    stages of the proceeding, or demonstrate that he is "aggrieved" or
    "adversely affected" by the decision.[^18] In broadcast proceedings,
    alleged injury to a petitioner often arises from the petitioner's
    interests as a member of the listening public rather than from any
    individual economic harm.[^19] A member of the public can thus
    establish standing in Commission broadcast proceedings by
    demonstrating either (1) that the petitioner is a resident of the
    station's service area, or (2) that the petitioner is a station
    listener or viewer whose contact with the station is not
    transient.[^20] In this manner the Commission recognizes that
    broadcasters are responsible for serving the needs of residents
    within their service areas and that people who listen to a station
    on a regular basis, unlike transients, have legitimate interests in
    the station's performance.[^21]

6.  We agree with the staff that Westcott is not a party, but rather an
    informal objector without standing to seek reconsideration of the
    staff's decision. Westcott demonstrates neither residence within
    WXRK's service area nor a non-transient listener/viewer relationship
    with WXRK.[^22] Westcott resides over 3,000 miles from WXRK's
    service area, on the opposite coast of the United States. He claims
    no direct contact with station WXRK. Westcott is a listener of his
    local California station, not of the New York station whose license
    renewal is under consideration here.

7.  Westcott's interest in the current proceeding is far more tenuous
    than other professed "listener" interests that the Commission has
    found too minimal to confer standing. For example, the Commission
    has found that travelers who listen directly to a station's
    broadcast signal when visiting a station's community of license lack
    standing.[^23] Part-time residents of areas outside of a station's
    protected service contour who can sometimes receive the station's
    signal also lack standing.[^24] Such individuals are considered to
    have contacts of a transient nature because they are not capable of
    receiving the station's full offerings on a regular basis.[^25] In
    the present case, Westcott has not shown even transient contacts
    with WXRK. Westcott cannot receive WXRK's broadcast signal but
    merely one WXRK-produced program, which a distant station, KLSX,
    procures by non-broadcast means for delivery to its own listeners
    and which does not reflect the WXRK-unique editing of the program
    that is heard only in New York.

8.  Westcott also claims that he has standing to challenge the broadcast
    practices of WXRK because that station is under common ownership
    with KLSX.[^26] Congress, however, has expressly limited the scope
    of the license renewal inquiry to matters occurring at the
    particular station for which license renewal is sought.[^27]
    Accordingly, KLSX programming cannot be considered in determining
    whether grant of the WXRK renewal application is in the public
    interest.[^28] We conclude that the staff correctly limited its
    review to potential rule violations at WXRK(FM).

9.  As a KLSX listener, Westcott's direct concern is with that station's
    programming policies, not with WXRK's authorization to continue
    broadcasting to audiences in New York. An informal objector may
    appropriately bring an initial challenge to an application filed by
    a distant station, but does not become a listener/viewer of the
    distant station or otherwise aggrieved by virtue of receiving local
    broadcasts of one of that station's programs. Accordingly, such
    persons lack standing to seek redress beyond the initial staff
    decision.

10. As Westcott made no showing of being "aggrieved" by the renewal of
    WXRK's license, he has not shown that he is "aggrieved" for purposes
    of this application for review.[^29] Accordingly, IT IS ORDERED that
    the Application for Review filed on March 23, 2001, by Al Westcott
    IS DISMISSED.

    **FEDERAL COMMUNICATIONS COMMISSION**

    **Marlene H. Dortch**

    **Secretary**

**DISSENTING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

*Re: SAGITTARIUS BROADCASTING CORP. Application for Renewal of License
WXRK(FM), New York, New York, Facility ID #58579*

In this Order, the Commission dismisses on procedural grounds an
application for review seeking to deny a radio station's license renewal
application based on allegations that the station aired indecent
material. In this case, a citizen who lives in California sought to deny
the license renewal of KLSX(FM), a station in Los Angeles that broadcast
the Howard Stern Show. This person also sought to deny the license
renewal application of WXRK(FM) in New York, the station that originated
the Stern Show. The Bureau dismissed the objection against KLSX(FM)
because this person relied on printed excerpts from the show and
therefore did not demonstrate knowledge that the program actually aired
on KLSX(FM). The Bureau dismissed the challenge to WXRK(FM)'s
application concluding that he did not prove the material had actually
been broadcast on WXRK(FM). In both cases, the Bureau apparently made no
effort of its own to ascertain the facts of the broadcast. Additionally,
the Bureau decided that, because the complainant lives in California, he
lacks standing to challenge the license renewal of a New York station.
In today's Order, the Commission upholds the Bureau's decision with
respect to WXRK(FM).

I find the majority's decision troubling, especially as we enter a new
license renewal cycle this fall. It is the Commission's affirmative
responsibility under the statute to determine whether a broadcaster is
serving the public interest and deserves to have its license to use the
public's airwaves renewed. Unless a citizen or some other outside party
complains, licenses are almost automatically renewed. The message from
today's decision is that, even when the public raises issues, this
agency will look for procedural vehicles to avoid our substantive
responsibility to ensure that a licensee is serving the public interest.

The process by which the Commission carries out its statutory duty
places inordinate responsibility upon the complaining citizen. That's
wrong. It is the ***Commission's*** responsibility to examine whether a
station is serving the public interest. I hope we will do better in the
upcoming license renewal cycle.

[^1]: The station's licensee, Sagittarius Broadcasting Corporation,
    filed an Opposition on April 9, 2001. Shortly thereafter, on April
    30, 2001, it consummated an assignment of the station's license to
    Infinity Broadcasting Operations, Inc., as had been approved by the
    staff on April 6, 2001. Westcott filed a Reply on April 18, 2001.

[^2]: KLSX, which was licensed to CBS Broadcasting at the time of
    Westcott's petition, is currently licensed to Infinity Broadcasting
    Corp. As discussed in note 26 *infra* these companies are related to
    WXRK's licensee.

[^3]: *Letter from Chief, Audio Division to Al Westcott*, Ref. No.
    1800B3-TSN (MMB Oct. 19, 2000).

[^4]: *Letter from Chief, Audio Division to Al Westcott*, Ref. No.
    1800B3-TSN (MMB Feb. 15, 2001).

[^5]: Westcott accords significance to the California station's
    scheduling of the Stern Show at the same time as its New York
    airing, beginning about 3:00 a.m. Pacific Time. Westcott maintains
    that he is thus no different from a listener in New York hearing the
    show at 7:00 a.m. Eastern Time. Westcott does not take into account
    independent editing by the New York and California stations. Nor
    does he recognize that a 3 a.m. California broadcast would fall
    within the Commission's 10 p.m. to 6 a.m. "safe harbor" for indecent
    material, unlike a 7 a.m. New York broadcast. *See Action for
    Children's Television v. FCC,* 58 F.3d 654 (D.C. Cir. 1995), *cert.
    denied*, 516 U.S. 1043 (1996).

[^6]: Nor did the material appear to come from Westcott's local station,
    KLSX, Los Angeles. To the extent that the staff could ascertain the
    origin of the material submitted, the broadcasts were heard over
    stations in one of the following communities: Richmond, Virginia;
    New Orleans, Louisiana; Fort Worth, Texas; Montreal, Canada; or
    Toronto, Canada. The material made in complaints against the U.S.
    stations had been considered previously.

[^7]: *Letter to WVGO License Limited Partnership*, 11 FCC Rcd 13214
    (MMB 1996*); Letter to EZ New Orleans, Inc.*, 12 FCC Rcd 4147 (MMB
    1997). *Cf.,* *Policy Statement, Industry Guidance on the
    Commission's Case Law Interpreting 18 U.S.C.* § *1464 and
    Enforcement Policies Regarding Broadcasting Indecency*, 16 FCC Rcd
    7999, 8004 (2001) (summary of indecency cases includes one Stern
    Show broadcast by a Philadelphia station).

[^8]: *Shareholders of CBS Corporation*, 15 FCC Rcd 8230, 8242 (2000),
    *recon. denied*, 16 FCC Rcd 16072.

[^9]: *See* 47 C.F.R. § 73.3587.

[^10]: *See* 47 U.S.C §§ 309(d)(2) and (k). Pursuant to Section 309(k),
    the Commission shall grant an application for license renewal if,
    during the preceding license term, the station has served the public
    interest, the licensee has not had serious rule violations at that
    station, and there has been no pattern of abuse at that station.

[^11]: *Cf. Letter to CBS Radio*, 12 FCC Rcd 8274 n.3 (MMB 1997)
    (finding that Stern Show excerpts heard on other stations prior to
    November 1996, also would have aired on WXRK). The staff's initial
    decision credited Sagittarius's statement that "before the Stern
    Show is broadcast over WXRK, the version of the Stern Show which is
    delivered by satellite \[to other stations\] is subjected to
    separate editing that is unique to WXRK." The staff also found that
    it could not consider some of the material due to the terms of a
    settlement agreement between the Commission and Sagittarius' parent
    company. *See* *Sagittarius Broadcasting Corp.*, 10 FCC Rcd 12245
    (1995).

[^12]: *Shareholders of CBS Corp.*, 16 FCC Rcd 16072, 16073 (2001).

[^13]: *See* *generally* 47 C.F.R. §§ 73.3587 and 1.41.

[^14]: 47 C.F.R. § 73.3580(d).

[^15]: 47 C.F.R. § 1.106(b)(1) (non-party cannot seek reconsideration
    absent a showing "with particularity the manner in which the
    person's interests are adversely affected by the actions taken," and
    of a good reason why it was not possible for him to participate
    earlier as a party).

[^16]: *See* 47 C.F.R. § 73.3584(a).

[^17]: 47 U.S.C. § 309(d)(1); 47 C.F.R. § 73.3584(a).

[^18]: *See* 47 U.S.C. § 405; 47 C.F.R. § 1.106(b)(1).

[^19]: *Cf.* *Office of Communication of the United Church of Christ v.
    FCC*, 359 F.2d 994, 1001 (D.C. Cir. 1966) (standing is accorded in
    agency proceedings to protect the public interest as well as private
    interests). The Commission also has long recognized the interests of
    competing broadcasters and of those receiving electronic
    interference. *Id.*

[^20]: ^?^ *See Curators of University of Missouri*, 16 FCC Rcd 1174
    (2001); *CHET-5 Broadcasting, L.P*., 14 FCC Rcd 13041 (1999*). Cf.
    NAB Petition for Rulemaking*, 82 FCC2d 89, 98-99 (1980), *as
    modified by Maumee Valley Broadcasting, Inc.,* 12 FCC Rcd 3487
    (1997) (historical development of the standard). Our administrative
    standard for broadcast standing is less stringent than the judicial
    standard applied to petitioners appealing Commission decisions in
    federal court. *See Rainbow/PUSH Coalition*, 330 F.3d 539 (D.C. Cir.
    2003), *petition for reh'g denied* September 10, 2003. (organization
    representing members residing within a broadcast station's community
    nevertheless did not satisfy court's requirements for standing
    because the organization did not also connect the station's alleged
    violation to a public injury-in-fact). Judicial standing
    requirements are stricter because the jurisdiction of federal courts
    is based on Article III of the U.S. Constitution, whereas
    administrative standing is a matter committed to agency discretion.
    *See CAPH v. FCC*, 778 F.2d 823, 826 n.8 (D.C. Cir. 1985) (\"The
    Article III restrictions under which this court oper­ates do not, of
    course, apply to the FCC. The Commission may choose to allow persons
    without Article III \'standing\' to partic­ipate in FCC proceedings,
    as it did in this case.\"); *National Welfare Rights Org. v. Finch*,
    429 F.2d 725, 732 n.27 (D.C. Cir. 1970). (\"\[S\]tanding to sue
    \[d\]epends on more restrictive criteria than standing to appear
    before administrative agencies . . . .\").

[^21]: *See CHET-5 Broadcasting, L.P*., 14 FCC Rcd at 13042.

[^22]: The staff, while dismissing the petition for reconsideration
    procedurally based on this lack of standing, also noted that it
    would have found no merit to Westcott's substantive arguments.
    Because we uphold the staff's primary finding, we need not reach its
    secondary conclusions. Specifically, we decline to address
    substantive arguments in the Application for Review, including: (1)
    whether Westcott's allegations against WXRK were sufficient to make
    a *prima facie* case of rule violation; (2) whether Westcott's
    allegations were sufficient to call into question whether license
    renewal would be consistent with the public interest, convenience,
    and necessity; (3) whether the staff's enforcement of Commission
    rules is inadequate or discriminatory; and (4) whether an inquiry on
    the Commission's own motion pursuant to 47 U.S.C. § 403 would have
    been appropriate.

[^23]: *See* *Maumee Valley Broadcasting, Inc*., 12 FCC Rcd 3487 (1997);
    *National Broadcasting Co., Inc.*, 11 FCC Rcd 10779 (1996); *Mutual
    Radio of New York*, 1 FCC Rcd 384 (1986).

[^24]: *See* *National Broadcasting Co., Inc.*, 11 FCC Rcd at 10780.

[^25]: As we have long stated, the Commission's primary concern at
    license renewal time is with the licensee's overall performance in
    serving the needs of its community. *See Pacifica Foundation*, 36
    F.C.C. 147 (1964). A transient is not in a good position to comment
    on a station's overall performance to the community.

[^26]: The two stations have had a common parent, both at the time of
    the complaint and currently.

[^27]: *See* 47 U.S.C. § 309(k)(1) ("the Commission shall grant the
    application if it finds, *with respect to that station . . .*")
    (emphasis added). This provision was added by the Telecommunications
    Act of 1996.

[^28]: *See generally* *Broadcast and Cable Equal Opportunity Rules and
    Policies*, 15 FCC Rcd 2339, 2451 n. 91 (2000) (Section 309(k)'s
    renewal standard is narrower than the general public interest
    renewal standard used prior to the 1996 enactment of Section
    309(k)). *Public Notice, Media Bureau Announces Certain Revisions to
    Instructions to Form 303-S - - Application for Renewal of License
    for Broadcast Stations*, 18 FCC Rcd 8986 (MB 2003) (question about
    violations on license renewal application pertains only to the
    station for which the renewal application is being submitted).

[^29]: *See* 47 C.F.R. § 1.115(a); *Alaska Native Wireless, LLC*, 18 FCC
    Rcd 11640 (2003).