**DA 08-1676**

*In Reply Refer to:*

1800B3-KV

Released: July 17, 2008

Ms. Lora Leland

Ms. Anne Zevich

P.O. Box 8156

Portland, ME 04104

Saga Communications of New England, LLC

Gary S. Smithwick, Esquire

Smithwick & Belendiuk, P.C.

5028 Wisconsin Avenue, NW

Suite 301

Washington, DC 20016

In re: WBAE(AM), Portland, Maine

Saga Communications of New England, LLC

Facility ID No. 49983

File No. BR-20051201BBG

Application for Renewal of License

**Informal Objection**

Dear Counsel, Ms. Leland and Ms. Zevich:

This letter refers to the above-noted application filed on December 1,
2005, by Saga Communications of New England, LLC (the "Licensee"), for
renewal of license for Station WBAE(AM), Portland, Maine (the
"Application"). On January 25, 2006, Ms. Lora Leland and Ms. Anne Zevich
(collectively "the Objectors") filed an Informal Objection to the
Application.[^1] On March 7, 2006, the Licensee filed a response.[^2]
For the reasons set forth below, we deny the Informal Objection and
grant the Application.

**Background**. The Objectors seek the denial of the Station's renewal
of license application because they contend that during the months March
through September, the Licensee pre-empts its regular music programming
format to broadcast Portland Seadogs and Boston Red Sox games. According
to the Objectors, such broadcasts are in violation of promises made by
the Licensee to broadcast: "'Music of Your Life' 24-7-365. 'All music
all the time' was their promise when the Station started."[^3] The
Objectors allege that they have complained to the Licensee, its
sponsors, and the "Music of Your Life" network, to no avail. Therefore,
they request that Commission "not re-license \[the Station\] . . . if
they are going to preempt "Music of Your Life" with any kind of sports
this year."[^4]

In response, the Licensee argues that its programming serves the local
public interest. The Station's General Manager states:

> WBAE, Portland, 1490 kHz is simulcast with a music standards/nostalgia
> format for much of the time with WVAE, 1400 kHz, Biddeford, Maine,
> which serves the area south of Portland. At other times, WBAE carries
> the broadcasts of the Portland Seadogs baseball team and WVAE carries
> broadcasts of the Boston Red Sox's baseball games. To the best of my
> knowledge, Saga never promised to broadcast 'all music all the time'
> on WBAE.
>
> The Seadogs coverage runs from April until about Labor Day; the Red
> Sox coverage is on the air until early October. The games run only
> about 3 hours each and are heard mostly at night and on weekends. The
> Complainants apparently called 'Music of Your Life' which syndicates
> music programs nationally. I have no records of calls or complaints
> from Ms. Leland, Ms. Zevich . . . .
>
> WBAE is the only station in Cumberland County, Maine, broadcasting the
> Seadogs' games. It is Saga's belief that the Seadogs are a major
> component of the Portland community and that the broadcast of their
> games clearly serve the public interest.[^5]

**Discussion**. Informal objections must, pursuant to Section 309(e) of
the Communications Act of 1934, as amended (the "Act"), provide properly
supported allegations of fact that, if true, would establish a
substantial and material question of fact that grant of the application
would be *prima facie* inconsistent with Section 309(k) of the Act,[^6]
which governs our evaluation of an application for license renewal.
Specifically, Section 309(k)(1) provides that if, upon consideration of
the application and pleadings, we find that (1) the station has served
the public interest, convenience, and necessity; (2) there have been no
serious violations of the Act or the Rules; and (3) there have been no
other violations which, taken together, constitute a pattern of abuse,
we are to grant the renewal application.[^7] 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."[^8]

The Objectors seek the denial of the Station's renewal of license not
due to an alleged violation of the Act or the Rules, but rather because
they disagree with its programming choices. These content-based
arguments, however, concern matters over which the Commission has only
limited review authority. The Commission\'s role in overseeing program
content is limited by the First Amendment to the United States
Constitution and Section 326 of the Act, which prohibit the Commission
from interfering with broadcasters\' freedom of expression and from
censoring program material. [^9] The Commission does regulate broadcast
content where federal statutes direct it to do so. For example, the
Commission enforces the statutory prohibition on the broadcast of
obscene, indecent and profane material.[^10] However, the Commission
will not take adverse action on a license renewal application based upon
the subjective determination of a listener or group of listeners as to
what constitutes appropriate programming.[^11] Licensees have broad
discretion \-- based on their right to free speech \-- to choose, in
good faith, the programming it believes serves the needs and interests
of their communities.[^12] We will intervene in programming matters only
if a licensee abuses that discretion.[^13] The Objectors have not
demonstrated that the Licensee has done so here. Accordingly, we deny
the Informal Objection.

**Conclusion/Actions**. We have evaluated the Application pursuant to
Section 309(k) of the Act,[^14] and we find that Station WBAE(AM) has
served the public interest, convenience, and necessity during the
subject license term; there have been no serious violations of the Act
or the Rules; and there have been no other violations which, taken
together, constitute a pattern of abuse.

In light of the above discussion, and pursuant to Section 309(k) of the
Act, and Sections 0.61 and 0.283 of the Rules,[^15] the Informal
Objection filed on January 25, 2006, by Lora Leland and Anne Zevich

IS DENIED, and the application (File No. BR-20051201BBG) of Saga
Communications of New England, LLC for renewal of license for Station
WBAE(AM), Portland, Maine, IS GRANTED.

> Sincerely,

Peter H. Doyle

Chief, Audio Division

Media Bureau

cc: Saga Communications of New England, LLC

[^1]: We are treating the untitled filing by the Objectors as an
    Informal Objection under Section 73.3587 of the Commission's Rules
    (the "Rules"), 47 C.F.R. § 73.3587, because it fails to comply with
    the procedural requirements for filing a Petition to Deny, *e.g.,*
    it was not served on the Station or its counsel, and it is not
    supported by affidavit. *See* 37 U.S.C. § 309(d), 47 C.F.R. §
    73.3584.

[^2]: "Opposition to Informal Objection" ("Opposition").

[^3]: Informal Objection at 1.

[^4]: *Id*.

[^5]: Opposition, Declaration of Cary Pahigian.

[^6]: *See, e.g., WWOR-TV, Inc.,* Memorandum Opinion and Order, 6 FCC
    Rcd 193, 197 n.10 (1990), *affirmed sub nom. Garden State
    Broadcasting L.P. v. FCC,* 996 F.2d 386 (D.C. Cir. 1993), *rehearing
    denied* (Sep. 10, 1993); *Area Christian Television, Inc.,*
    Memorandum Opinion and Order, 60 RR 2d 862, 864 (1986) (informal
    objection must contain adequate and specific factual allegations
    sufficient to warrant the relief requested).

[^7]: 47 U.S.C. § 309(k)(1). 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). S*ee Implementation of
    Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^8]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^9]: U.S. Const., Amend I; 47 U.S.C. § 326.

[^10]: 18 U.S.C. § 1464.

[^11]: *See WGBH Educational Foundation*, Memorandum Opinion and Order,
    69 FCC 2d 1250, 1251 (1978).

[^12]: *See, e.g.,* *Mr. Robert Meshanko,*, Letter, 22 FCC Rcd 4809,
    4810 (MB 2007); *License Renewal Applications of Certain Commercial
    Radio Stations Serving Philadelphia, Pennsylvania*, Memorandum
    Opinion and Order, 8 FCC Rcd 6400, 6401 (MMB 1993) ("*Philadelphia
    Station License Renewals*"), citing *Time-Life Broadcast, Inc.*,
    Memorandum Opinion and Order, 33 FCC 2d 1081, 1082 (1972), and
    Office of Communications of United Church of Christ v. FCC, 707 F.2d
    1413 (D.C. Cir. 1983)(subsequent history omitted).

[^13]: *Philadelphia Station License Renewals,* 8 FCC Rcd at 6401.

[^14]: 47 U.S.C § 309(k).

[^15]: ^?^ 47 U.S.C. § 309(k); 47 C.F.R. §§ 0.61, 0.283.