**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. 00-IH-0283          |
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| **Citicasters Co.**              | ) | NAL/Acct. No.                |
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**[NOTICE OF APPARENT LIABILITY FOR FORFEITURE]{.underline}**

**Adopted:** February 12, 2001 **Released:** February 13, 2001

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Notice of Apparent Liability for Forfeiture (NAL), we find
    that Citicasters Co. (Citicasters) apparently willfully and
    repeatedly violated Section 310(d) of the Communications Act, as
    amended (the Act)[^1], and Section 73.3540 of the Commission's
    rules[^2] by assuming control of WBTJ(FM), Hubbard, Ohio, without
    prior Commission consent. Based upon the facts and circumstances
    surrounding these apparent violations, we find that Citicasters is
    apparently liable for a forfeiture in the amount of \$25,000.

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II. **BACKGROUND**

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2.  Citicasters is an indirect subsidiary of Clear Channel
    Communications, Inc., which controls radio station licenses in and
    around the Youngstown, Ohio area.[^3] Stop 26--Riverbend, Inc. (Stop
    26), is the licensee of WBTJ(FM), also in the Youngstown area.
    Citicasters and Stop 26 entered into an asset purchase agreement and
    a related time brokerage agreement (TBA)[^4] in connection with an
    application proposing the assignment of WBTJ(FM)'s license from Stop
    26 to Citicasters. *See* File No. BALH-19990816GE. The TBA
    referenced the asset purchase agreement for the proposed sale of the
    station, and provided that Stop 26 would accept programming from
    Citicasters for broadcast on WBTJ(FM). While the assignment
    application was pending, Stop 26 and Citicasters became involved in
    a dispute after Stop 26 gave Citicasters notice that it would
    terminate the TBA in order to provide programming on WBTJ(FM) of its
    own choosing. Citicasters rejected this notice of termination
    because Stop 26 had not repaid advances made to it under the asset
    purchase agreement. Stop 26 and Citicasters attempted to resolve
    issues related to the TBA and financial arrangements under the asset
    purchase agreement, but could not reach a settlement. Citicasters
    then filed a complaint in state court based on the dispute.
    Citicasters also requested a restraining order and injunction to
    prevent Stop 26 from "interfering, obstructing, or disrupting
    programming broadcast by Citicasters on the station." *Complaint*
    filed by Citicasters on June 20, 2000, Court of Common Pleas,
    Mahoning County, OH.

3.  The state court in Mahoning County, Ohio, issued a temporary
    restraining order that required Stop 26 to seek court approval
    before placing programming on WBTJ(FM). Specifically, the
    restraining order provided that Stop 26 may preempt Citicasters'
    programming on WBTJ(FM) "only after issuance of an order from \[the
    state court\] that such preemption is necessary and permitted under
    the TBA." *Citicasters Co. v. Stop 26-Riverbend, Inc.,* No.
    00-CV-1582 (Mahoning County Court of Common Pleas, July 21,
    2000)(Order Reaffirming and Continuing Temporary Restraining Order
    entered June 20, 2000). The court's order restrained Stop 26 "from
    in any manner, either directly or indirectly, interfering,
    obstructing, or disrupting Plaintiff \[Citicasters Co.\] in
    broadcasting programming on WBTJ, 101.9 FM or taking any actions in
    violation of Plaintiff's rights under its Time Brokerage
    Agreement...." *Id.* Stop 26 had resumed programming WBTJ(FM) on
    July 1, 2000 while it pursued appeals of the Mahoning County court's
    orders. However, those appeals were ultimately unsuccessful.[^5] On
    August 22, 2000, Stop 26 permitted Citicasters to resume programming
    WBTJ(FM), in compliance with the court's July 21, 2000 temporary
    restraining order.[^6] However, Stop 26 requested and obtained the
    Commission's dismissal of the assignment application, over
    Citicasters' objection.[^7]

4.  Stop 26 also filed a formal complaint with the Commission based on
    Citicasters' actions with respect to WBTJ(FM). The complaint
    referenced the court orders that required Stop 26 to obtain court
    approval before preempting programming that Citicasters provides to
    WBTJ(FM) under the TBA. The staff of the Enforcement Bureau,
    Investigations and Hearings Division, reviewed this complaint, and
    determined that Citicasters may have effectively exercised control
    over the programming of WBTJ(FM), in violation of Section 310(d) of
    the Act, which prohibits the transfer of control of a broadcast
    station license, or any rights thereunder, without prior Commission
    consent. The Investigations and Hearings Division issued a letter of
    inquiry directing Citicasters to explain its actions in light of
    Section 310(d) of the Act and the Commission's rules and policies
    concerning control of a broadcast station license. *See* Letter to
    Mr. Jerome L. Kersting, Senior Vice President, Citicasters Co., Ref.
    EB-00-IH-0283/MG, from Charles W. Kelley, Chief, Investigations and
    Hearings Division, Enforcement Bureau (Oct.18, 2000).

5.  Citicasters filed its response to the Enforcement Bureau's letter of
    inquiry, and asserted that its actions did not effectuate an
    unauthorized transfer of control of WBTJ(FM). Citicasters argues
    that the terms of the TBA are consistent with Commission precedent,
    ensuring that Stop 26 remained in control of WBTJ(FM) but requiring
    Stop 26 to make decisions concerning programming and station
    operations in a reasonable, good faith manner. Citicasters claims
    that Stop 26 failed to act reasonably or in good faith with respect
    to its attempts to terminate the TBA and to preempt programming,
    thereby breaching the terms of its contractual agreements.
    Citicasters argues that under these circumstances, it was entitled
    to seek judicial enforcement of the terms of the TBA. In addition,
    Citicasters asserts that the temporary restraining order preserved
    the *status quo* pending the outcome of litigation of the parties'
    contractual disputes, especially given: (1) Stop 26's unjustifiable
    attempt to terminate the TBA in the context of its breach of the
    purchase agreement; (2) Stop 26's attempts to use preemption of
    Citicasters' programming as a pretext to avoid its contractual
    obligations under the asset purchase agreement and TBA and (3) the
    irreparable harm to Citicasters, to WBTJ(FM)'s advertisers, and to
    WBTJ(FM)'s listeners caused by Stop 26's unilateral termination of
    Citicasters' programming. Futhermore, Citicasters asserts that the
    Commission does not have jurisdiction to adjudicate this contractual
    dispute. Citicasters claims that the Ohio court was required to
    enforce the TBA and determine whether Stop 26 abided by its
    obligations to preempt programming in a reasonable, good faith
    manner. Citicasters argues that the temporary restraining order was
    merely a safeguard and a screening device to ensure that Stop 26
    complied with the terms of the TBA and did not interfere with its
    *bona fide* contract rights during the pendency of litigation within
    the exclusive jurisdiction of the state court.

6.  The letter of inquiry issued by the Investigations and Hearings
    Division also afforded Stop 26 the opportunity to respond to
    Citicasters' submission. Stop 26 asserts that Citicasters usurped
    its authority by precipitating and vigorously prosecuting injunctive
    relief that has barred Stop 26 from programming WBTJ(FM). In this
    regard, Stop 26 claims that Citicasters deliberately thwarted its
    repeated attempts to resume programming the station by pursuing the
    temporary restraining order as well as criminal contempt citations
    against Stop 26 and its principals which were imposed after Stop 26
    failed to immediately comply with the court's orders. Stop 26 also
    filed a supplement which indicates that Stop 26 resumed programming
    WBTJ(FM) on November 12, 2000.[^8] In addition, Stop 26 reported
    that on November 17, 2000, it received written notification of
    Citicasters' intention to terminate the TBA. Citicasters responded
    to Stop 26's supplement, and reiterated its argument that it was
    entitled to seek injunctive relief in state court and that there has
    been no unauthorized transfer of control of WBTJ(FM) as a
    consequence of its conduct. Citicasters also affirms that the TBA
    has been terminated.[^9]

    **III. DISCUSSION**

7.  Section 310(d) of the Communications Act, as amended, prohibits the
    transfer of control of a broadcast station license, or any rights
    thereunder, without prior Commission consent. 47 U.S.C.§ 310(d).
    *See also* 47 C.F.R. § 73.3540. The Commission has ruled that a
    licensee's participation in a local marketing or time brokerage
    agreement is not *per se* a violation of the Communications Act or
    any Commission rule or policy. *WGPR, Inc.,* 10 FCC Rcd 8140, 8141
    (1995)(subsequent history with respect to unrelated issues is
    omitted).

8.  However, the Commission has repeatedly emphasized that a licensee
    involved in a time brokerage agreement must retain ultimate control
    of the station. *See, e.g., Choctaw Broadcasting Corporation*, 12
    FCC Rcd 8534 (1997); *WGPR, Inc., supra; WHDH, Inc.*, 17 FCC 2d 856
    (1969), *aff'd sub nom. Greater Boston Television Corp. v. FCC*, 444
    F.2d 841 (D.C. Cir. 1970), *cert. denied,* 403 U.S. 923 (1971). "The
    focus of any Commission inquiry with respect to the locus of control
    of a station's operation is tripartite: the programming, the
    personnel and the finances." *WGPR, Inc*., 10 FCC Rcd at 8141.
    Licensees are permitted under Section 310(d) of the Act to delegate
    day-to-day operations, but such delegation may not be wholesale. The
    licensee, and not the broker, must mandate the basic policies
    pertaining to fundamental station operations in these three areas.
    *See Southwest Texas Public Broadcasting Council*, 85 FCC 2d 713,
    715 (1981); *The Alabama Educational Television Commission*, 33 FCC
    2d 495, 508 (1972). The Commission evaluates issues of license
    control by ascertaining whether the licensee establishes policies
    governing these three essential areas of station operation. *See
    WGPR, Inc.*, 10 FCC Rcd at 8142.

9.  Citicasters claims that terms of the TBA are in accord with the
    terms of other similar agreements approved by the Commission.
    Specifically, with regard to preemption rights, Citicasters cites
    similar agreements that contain provisions requiring the licensee's
    programming substitution decisions to be made "in good faith."
    *WGPR, Inc.*, 10 FCC Rcd at 8141; *Roy R. Russo*, 5 FCC Rcd 7586
    (MMB 1990). Citicasters states that each of these agreements require
    the licensee's control to be "reasonably exercised" with respect to
    decisions concerning programming, station policies and operations.
    Citicasters also argues that provisions for termination of the TBA
    are comparable to those approved in *WGPR, Inc*.[^10] Moreover,
    Citicasters claims that the terms of the TBA and asset purchase
    agreement were reviewed and approved by the Commission in connection
    with an earlier sale of WBTJ(FM) from Stop 26 to Citicasters that
    ultimately could not be consummated.[^11]

10. However, the Commission looks beyond the terms of the agreement to
    the facts of a specific case in order to determine the exercise of
    actual control. Thus, Citicasters cannot avoid scrutiny by claiming
    that the terms of its TBA with Stop 26 were modeled on other
    agreements, including the agreement at issue in *WGPR, Inc.* The
    Commission's decision in *WGPR, Inc.* recites the terms of a local
    marketing agreement, including the licensee's obligation to make
    "good faith" determinations as to whether to preempt programming. In
    addition, the Commission ruled that "the licensee should be ready
    and able to operate independently from the broker at any time it
    believes the arrangement does not fulfill its public interest
    responsibilities." 10 FCC Rcd at 8145. In *WGPR, Inc*., Commission
    concluded the local marketing agreement, including the "good faith"
    provisions:

    assures that \[the licensee\] has the unqualified right to:
    substitute a program it believes is of greater local or national
    importance or which it believes will better address the problems,
    needs and interests of \[WGPR-TV's community of license\]; reject or
    refuse a program that it believes is unsuitable or contrary to the
    public interest; refuse to broadcast any program that does not meet
    Commission requirements; preempt any program in the event of a
    local, state or national emergency; and delete any commercial
    announcement that does not comply with Commission requirements or
    any other laws.

    8 FCC Rcd at 8142.

    Moreover, the Commission determined that the licensee "has
    maintained control of WGPR-TV programming as provided under the
    terms of its local marketing agreement and *in practice."* *Id* at
    8143 (emphasis added).

11. In determining whether or not the licensee has control over station
    programming, the Commission has looked at, among other things, the
    licensee's involvement in any format changes and the ability of the
    licensee to reject or preempt programming. *Choctaw Broadcasting
    Corporation,* 12 FCC Rcd 8534, 8538-39 (1997); *WGPR, Inc.*, 10 FCC
    Rcd at 8142. During the period from August 22, 2000 to November 12,
    2000, the injunctive relief awarded to Citicasters at its request
    required Stop 26 to seek court approval before exercising
    involvement in WBTJ(FM)'s programming. Whether or not this was
    consistent with the contract, it is inconsistent with the licensee's
    primary obligations with respect to an essential aspect of station
    operation. The Commission's policies and decisions regarding the
    permissibility of time brokerage agreements have emphasized that the
    licensee is responsible for the programming aired on its station,
    regardless of the source, and that licensees of brokered stations
    are not exempt from their responsibility to assess community needs
    and problems and to provide issue responsive programming.[^12]

12. While we do not disagree with Citicasters' assertion that its
    agreements with Stop 26 encompass certain contractual rights and
    obligations that are outside the Commission's regulatory
    jurisdiction, we are not adjudicating such rights and obligations
    here. Rather, we are assessing whether Citicasters violated the
    Communications Act and the Commission's rules by obtaining interim
    equitable relief from a state court -- in the form of temporary
    restraining orders that effectively substituted a non-licensee's
    programming policies and decisions for those of Stop 26 -- without
    prior approval of the Commission. We believe that Citicasters'
    actions precluded Stop 26 from exercising its rights to substitute
    programming which \"it believes is of greater local or national
    importance or which it believes will better address the problems,
    needs and interests" of the community of license. *See WGPR, Inc.*,
    8 FCC Rcd at 8142. It was not sufficient that Stop 26 had the right
    to seek court approval to preempt programming under the TBA. Where a
    contractual dispute is before a court, the licensee must retain
    actual control of essential station functions unless the Commission
    gives prior consent to the assignment or transfer of control of the
    station. Thus, it is a violation of the Communications Act to invoke
    remedies for breach, including injunctive or other equitable relief,
    that impinge on such control, without obtaining prior Commission
    consent. Under these circumstances, Citicasters' actions appear to
    have resulted in a violation of Section 310(d) and Section 73.3540
    of the rules. In this regard, control over any one of the three
    areas essential to station operation is sufficient for a finding of
    an unauthorized transfer or an unauthorized assumption of control.
    *See, e.g., Hicks Broadcasting of Indiana, LLC*, 13 FCC Rcd 10662,
    10677 (1998)(Hearing Designation Order). Until Stop 26's ability to
    preempt programming on WBTJ(FM) was restored, it could not exercise
    control over its license.

    **IV. CONCLUSION AND FORFEITURE AMOUNT**

13. We conclude that Citicasters apparently violated Section 310(d) the
    Act and Section 73.3540 of the Commission's rules by assuming
    control of WBTJ(FM), Hubbard, Ohio, without prior Commission
    consent. The violation continued from August 22, 2000, when Stop 26
    came into compliance with the temporary restraining order issued by
    the state court, until November 12, 2000, when Stop 26 resumed
    programming of WBTJ(FM). Based upon our review of the entire record,
    we find that the violations were willful and repeated. The
    Commission has held that an act or omission is "willful" if it is a
    conscious and deliberate act or omission, whether or not there is
    any intent to violate the rule. *Southern California Broadcasting
    Company*, 6 FCC Rcd 4387 (1991)(definition of willfulness contained
    in 47 U.S.C. § 312(f) applies equally to 47 U.S.C. § 503).
    Furthermore, a continuing violation is "repeated" if it lasts more
    than one day. *Id*, 6 FCC Rcd at 4388. Under these circumstances, we
    conclude that the violations warrant the imposition of a monetary
    forfeiture.

14. Section 503(b)(2)(D) of the Act[^13] and Section 1.80(b)(4) of the
    Commission's rules[^14] require us to take into account "the nature,
    circumstances, extent and gravity of the violation and, with respect
    to the violator, the degree of culpability, any history of prior
    offenses, ability to pay and such other matters as justice my
    require."[^15] The Commission's *Forfeiture Guidelines* establish a
    base amount of \$8,000 for an unauthorized substantial transfer of
    control. *The Commission's Forfeiture Policy Statement and Amendment
    of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd
    303 (1999)(Policy Statement). We find that imposition of a
    forfeiture that is higher than the base amount is warranted based on
    our review of the record. In this regard, Citicasters' actions were
    particularly serious in light of Stop 26's repeated and consistent
    attempts to resume programming WBTJ(FM). Further, the record
    supports a finding that Citicasters is an experienced broadcaster
    which should have been aware that its actions with respect to
    WBTJ(FM) required prior Commission approval. Thus, based upon the
    information before us and taking into consideration the factors
    expressed in Section 503(b)(2)(D) of the Act, we find that a
    forfeiture in the amount of twenty-five thousand dollars (\$25,000)
    is appropriate.

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V.  **ORDERING CLAUSES**

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15. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended,[^16] and Section 1.80 of the
    Commission\'s rules,[^17] Citicasters Co. is hereby NOTIFIED of its
    APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-five
    thousand dollars (\$25,000) for willfully and repeatedly violating
    Section 310(d) of the Communications Act of 1934,[^18] as amended,
    and Section 73.3540 of the Commission\'s rules.[^19]

16. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission\'s
    rules,[^20] that within thirty days of the release of this Notice,
    Citicasters Co., SHALL PAY the full amount of the proposed
    forfeiture or SHALL FILE a written statement seeking reduction or
    cancellation of the proposed forfeiture. Payment of the forfeiture
    may be made by mailing a check or similar instrument, payable to the
    order of the Federal Communications Commission, and addressed to the
    Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. The payment should note the NAL number of this
    proceeding (NAL No. 200132080019). Requests for full payment under
    an installment plan should be sent to: Chief, Credit and Debt
    Management Center, 445 12th Street, S.W., Washington, D.C.
    20554.[^21]

17. IT IS FURTHER ORDERED, that a copy of this Notice of Apparent
    Liability for forfeiture SHALL BE SENT by Certified Mail -- Return
    Receipt Requested, to Citicasters' counsel of record: Marissa G.
    Repp, Esq., Hogan & Hartson, L.L.P., 555 13^th^ Street, N.W.,
    Washington, DC 20004-1109

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

# 

[^1]: 47 U.S.C. § 310(d).

[^2]: 47 C.F.R. § 73.3540.

[^3]: Radio station licenses controlled by Clear Channel Communications,
    Inc. include WKBN(AM) and WMXY(FM), Youngstown, Ohio. Citicasters
    Co. is the licensee of both of these stations.

[^4]: Time brokerage is defined as "a type of joint venture that
    generally involves the sale by a licensee of 'discrete blocks of
    time to a "broker" who then supplies the programming to fill that
    time and sells the commercial spot announcements to support it.'"
    *Revision of Radio Rules and Policies* in MM Docket 91-140, *Report
    and Order*, 7 FCC Rcd 2755, 2784 (1992), *citing* *Policy Statement*
    in BC Docket No. 78-355, 82 FCC 2d 107 n.2 (1980). Time brokerage
    agreements also may be referred to as "local marketing agreements"
    in practice and in the Commission's precedents.

[^5]: Orders of the Mahoning County court were stayed pending procedural
    appeals. The temporary restraining order was reinstated following
    the conclusion of those appellate proceedings and the case was
    remanded to the Mahoning County court.

[^6]: ^6^ Stop 26's initial refusal to comply with the court's temporary
    restraining orders resulted in a contempt citation being issued to
    Stop 26 and Percy Squire, an officer and shareholder, and its
    counsel. *Citicasters Co. v. Stop 26-Riverbend, Inc.,* No.
    00-CV-1582 (Mahoning County Court of Common Pleas, Sept. 21,
    2000)(*Judgment Entry*).

[^7]: Stop 26 filed a request for voluntary dismissal of the assignment
    application on July 11, 2000. Citicasters filed an opposition,
    requesting that the Commission maintain the *status quo* pending the
    outcome of the ongoing litigation. However, the staff of the Mass
    Media Bureau subsequently dismissed the assignment application.
    *Letter to Percy Squire, Esq.*, Reference No. 1800B3-AB (Chief,
    Audio Services Division, MMB, Sept. 7, 2000). Citicasters has filed
    a petition for reconsideration of the staff's action dismissing the
    assignment application.

[^8]: Stop 26's supplemental pleading indicates that, in its view, the
    temporary restraining order had expired due to the passage of time.

[^9]: We note that on October 10, 2000, Stop 26 filed a third party
    complaint in the state court proceeding, naming the Commission's
    Chairman and the individual Commissioners in this complaint. The
    case was removed to federal court pursuant to 28 U.S.C. §
    1442(a)(1), which provides for the removal of cases involving claims
    against federal officers. However, the federal court has dismissed
    the third party complaint, has terminated the temporary restraining
    order, and has remanded the case to the Mahoning County Court of
    Common Pleas for further proceedings. *Citicasters Co. v. Stop
    26-Riverbend, Inc.*, Case No. 4:00CV02808 (N.D. O.H. Feb. 5, 2001).
    Stop 26 has appealed the dismissal and remand.

[^10]: Under the TBA, the termination was to occur upon closing of the
    purchase agreement or within 10 days of termination of the purchase
    agreement. In addition, the TBA could be terminated by the
    non-defaulting party in the event of a default by the other party.

[^11]: The approval of the application to assign the license of WBTJ(FM)
    from Stop 26 to Citicasters predated the merger of Citicasters'
    parent company, Jacor Communications, Inc., and Clear Channel
    Communications, Inc. *See* File No. BALH-19980528GE. Control of
    Jacor, and its indirect subsidiary, Citicasters, was transferred to
    Clear Channel upon consummation of the merger, but Clear Channel was
    not the assignee approved in the May 1998 assignment application.
    Accordingly, following the merger, a new application was filed for
    consent to assign the license of WBTJ(FM) from Stop 26 to
    Citicasters. *See* File No. BALH-19998016GE. As discussed *infra*,
    this application was later dismissed at Stop 26's request.

[^12]: *See, e.g., Revision of Radio Rules and Policies* in MM Docket
    91-140, *Memorandum Opinion and Order*, 7 FCC Rcd 6387, 6401-02
    (1992)(subsequent history omitted)(imposing restrictions under the
    local radio ownership rules on certain time brokerage agreements and
    requiring licensee's/permittee's certification that it maintains
    control over the station's facilities, including finances, personnel
    and programming). *See also* *Reexamination of the Commission's
    Cross-Interest Policy*, 4 FCC Rcd 2208, 2214 (1989)(Under
    Commission's former cross-interest policy, time brokerage agreements
    were permitted, subject to requirement that licensee maintain
    control over its programming); *Part-time Programming*, 82 FCC 2d
    107 (1980).

[^13]: 47 U.S.C. § 503(b)(2)(D).

[^14]: 47 C.F.R. § 1.80(b)(4).

[^15]: 47 U.S.C. § 503(b)(2)(D).

[^16]: 47 U.S.C. § 503(b).

[^17]: 47 C.F.R. § 1.80.

[^18]: 47 U.S.C. § 310(d).

[^19]: 47 C.F.R. § 73.3540.

[^20]: 47 C.F.R. § 1.80.

[^21]: *See* 47 C.F.R. § 1.1914.