**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File No. EB-03-IH-0483 et    |
|                                  | * | al.                          |
| **CAPSTAR TX LIMITED             | ) |                              |
| PARTNERSHIP**                    | * | Facility ID \# 53597         |
|                                  | * |                              |
| Licensee of Station WDCG(FM),    |   | File No. EB-03-IH-0487 et    |
|                                  | * | al.                          |
| Durham, North Carolina           | * |                              |
|                                  | ) | Facility ID \# 73268         |
| **CITICASTERS LICENSES, L.P.**   | * |                              |
|                                  | * | File No. EB-03-IH-0488 et    |
| Licensee of Station WMJI(FM),    |   | al.                          |
|                                  | * |                              |
| Cleveland, Ohio                  | * | Facility ID \# 35073         |
|                                  | ) |                              |
| **AMFM TEXAS LICENSES LIMITED    | * |                              |
| PARTNERSHIP**                    | * |                              |
|                                  |   |                              |
| Licensee of Station KLOL(FM),    | * |                              |
|                                  | * |                              |
| Houston, Texas                   | ) |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: June 24, 2004 Released: June 25, 2004**

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this *Memorandum Opinion and Order*, we deny complaints filed
    against the above-captioned licensees, all of which are subsidiaries
    of Clear Channel Communications, Inc. ("Clear Channel"), for
    broadcasting certain comments by radio station hosts and callers,
    which allegedly would lead to violence by automobile drivers against
    bicyclists. In view of the freedom accorded broadcasters by the
    First Amendment,[^1] as interpreted by the courts and the
    Commission, and section 326 of the Communications Act of 1934, as
    amended (the "Act"),[^2] and consistent with Commission precedent
    regarding this kind of commentary, we conclude that the comments do
    not merit enforcement action in the absence of an adjudication of a
    "clear and present danger" by a court of competent jurisdiction.

    **II. BACKGROUND**

2.  Over the course of several months, beginning in July 2003, the
    Commission received complaints that the above-captioned stations had
    broadcast material that encouraged listeners to harass and/or
    physically harm bicyclists. Specifically, by letter dated July 2,
    2003, a complainant alleged that, during the *Walton and Johnson
    Show*, Station KLOL(FM) broadcast material that advocated that
    automobile and truck drivers hit and seriously injure bicycle
    riders. Similarly, by letter dated July 18, 2003, a complainant
    alleged that, in June and July 2003, on-air talent at Station
    WMJI(FM) encouraged their listeners to pull around bicycles and slam
    on the brakes, pass bicyclists and then open the passenger door and
    slam on the brakes, and throw things and shout curses at
    bicyclists.[^3] Finally, by letter dated September 29, 2003, a
    complainant alleged that, on September 22 and 23, 2003, Station
    WDCG(FM) aired comments from hosts and callers during the *Bob and
    Madison Show*, which expressed contempt for law-abiding bicyclists
    and suggested that motorists run them off the road or throw bottles
    at them. Similar complaints followed.

3.  By letters to the licensees of the three captioned stations dated
    January 26, 2004, the Enforcement Bureau's Investigations and
    Hearings Division directed that each licensee state whether it had
    broadcast language "advocating violence toward bicyclists," whether
    the licensee was a party to any criminal or civil litigation
    regarding any such broadcast, and, if so, to provide information
    relating to such litigation's status.[^4] The Division's letters
    also directed that the licensees provide copies and transcripts of
    any recordings of the subject broadcasts.

4.  By letters dated March 5, 2004, Clear Channel, on behalf of the
    three licensees, responded to the Division's inquiries.[^5] Clear
    Channel represents that none of the three stations "broadcast
    language advocating violence toward bicyclists," and that none of
    the licensees was then or had been a party to any criminal or civil
    litigation involving the broadcasts.[^6] Finally, in light of the
    remedial actions that it took subsequent to the broadcasts in
    question in response to listener complaints, Clear Channel contends
    that it resolved the matter to the satisfaction of all involved
    months before its responses to the Commission.[^7]

5.  Specifically, regarding the complaints lodged against Station
    WDCG(FM), Clear Channel provides compact discs and transcripts of
    relevant portions of the September 22 and 23, 2003 *Bob and Madison
    Show*. Clear Channel submits that the material did not advocate
    violence and notes that, in fact, one of the co-hosts repeatedly
    cautioned against committing acts of violence against
    bicyclists.[^8] In any event, Clear Channel states that, in response
    to complaints that it received about the show, between October 6 and
    December 2003, it aired on its five Raleigh-Durham area stations
    more than 1,200 bicycling safety public service announcements, the
    text of which it prepared in conjunction with the North Carolina
    Division of Bicycles and Pedestrian Transportation.[^9] Station
    WDCG(FM) also aired an apology during the *Bob and Madison Show* and
    suspended the co-hosts for two days.[^10]

6.  Concerning the programming aired over Station WMJI(FM), Clear
    Channel provides compact discs and transcripts of the relevant
    portions of the June 30 and July 1-3 and 7-8, 2003 *Lanigan and
    Malone Show*. Clear Channel maintains that the material did not
    advocate violence against bicyclists and that the show's
    personalities repeatedly stated that they do not condone or mean to
    encourage such violence.[^11] Clear Channel also contends that
    discussions that it aired contained the opinions of callers and
    e-mailers, including bicycle advocates.[^12] In addition, Clear
    Channel notes that, in response to concerns about the broadcasts
    that it received from members of the bicycling community, it aired,
    over a week, approximately 300 public service announcements over its
    six Cleveland-area radio stations.[^13] Finally, Clear Channel
    states that members of the *Lanigan and Malone Show* issued an
    on-air apology.[^14]

7.  Finally, with respect to the material broadcast over Station
    KLOL(FM), Clear Channel's Houston Director of Rock Programming,
    Vince Richards, states in a Declaration executed under penalty of
    perjury that the station records its programming on digital audio
    tapes, which are recycled every few days by recording over the old
    material unless the material is saved for a "best of" show.[^15] Mr.
    Richards states his belief that the complaints pertain to the June
    27, 2003 *Walton and Johnson Show*, which he and several other
    members of station management listened to because it had generated
    some public comment.[^16] He acknowledges that, during the
    broadcast, one of the on-air personalities, John Walton, expressed
    frustration with bicyclists riding in the roadway.[^17] Mr. Richards
    relates that, although station management had asked the show's
    producer not to save the material for future use, it was saved and
    aired again on September 2, 2003 during a *Best of the Walton and
    Johnson Show*. Mr. Richards acknowledges that the September
    broadcast also generated public comment. Mr. Richards states that,
    following that broadcast, the station fired the program's producer
    and recycled the tape containing the programming. He indicates that
    station management directed cast members of the *Walton and Johnson
    Show* to issue several on-air apologies.[^18] In addition, according
    to Mr. Richards, all eight of Clear Channel's Houston-area stations
    are conducting an ongoing bicycle awareness/safety public service
    campaign. Since October 1, 2003, the stations have aired about 100
    public service announcements per month about bicycle safety, which
    are coordinated with the Houston Police Department Bike Force. Mr.
    Richards concludes that Clear Channel has posted on each of eight
    area station websites a link to a Bicycle Safety Habits fact sheet,
    which contains a link to the City of Houston Bicycle Program.[^19]

    **III. DISCUSSION**

8.  The Federal Communications Commission is authorized to license radio
    and television broadcast stations to serve the public interest and
    is responsible for enforcing the Commission's rules and applicable
    statutory provisions concerning the operation of those stations.
    However, the Commission's role in overseeing program content is very
    limited. The First Amendment and section 326 of the Act prohibit the
    Commission from censoring program material and from interfering with
    broadcasters' freedom of expression.[^20] There is no statutory
    provision or Commission rule that directly prohibits the
    complained-of broadcasts. Consequently, the only question before us
    is whether the broadcasts raise a substantial question about the
    licensees' basic qualifications.

9.  In light of Commission precedent on point, we find that no question
    regarding the licensee's basic qualifications is raised. In
    addressing allegations similar to the ones now before us, the
    Commission has stated:

    Commission action in response to an allegation that a broadcast
    should be characterized as an 'incitement' to violence or illegal
    action meeting the "clear and present danger" test is limited to
    situations where a local court of competent jurisdiction has made
    such a determination. *See Cattle Country Broadcasting*, 58 R.R.2d
    1109, 1113 (1985); *see also Brandenburg v. Ohio*,
    ("*Brandenburg*"), 395 U.S. 444, 447 (1969) (speech becomes illegal
    advocacy when "directed to inciting or producing imminent lawless
    action and is likely to incite or produce such action."). This
    aspect of the test requires a court to "make its own inquiry into
    the imminence and magnitude of the danger said to flow from the
    particular utterance and then to balance the character of the evil,
    as well as its likelihood, against the need for free and unfettered
    expression." *Landmark Communications, Inc. v. Virginia*, 435 U.S.
    829, 843 (1975).

    ... Under *Brandenburg*, any determination that particular speech
    poses a "clear and present danger of serious substantive evil"
    presupposes a familiarity with the circumstances, issues, and
    concerns of the community where such speech was heard, a familiarity
    which the Commission, in most cases, does not have and cannot
    practically obtain. Local authorities responsible for keeping the
    peace and enforcing the law are better positioned to know and assess
    the specific and unique circumstances in the ... community and,
    thus, to determine whether the *Brandenburg* test has been
    met."[^21]

10. The information before us reflects that no local court of competent
    jurisdiction has found that any of the material aired over the
    captioned stations, which is the subject of the instant complaints,
    met the "clear and present danger" test. Indeed, so far as we know,
    no civil or criminal action of any kind has been brought against any
    of the licensees for the complained-of broadcasts.[^22] Viewing
    these circumstances in light of the Commission's clear directive
    (quoted above) regarding treatment of broadcast speech that
    allegedly advocates or incites violence, we conclude that no
    substantial question exists about the licensees' qualifications and
    that initiation of a revocation proceeding is not warranted.

    **IV. ORDERING CLAUSES**

11. ACCORDINGLY, IT IS ORDERED, pursuant to section 0.111(a)(11) and
    0.311 of the Commission's rules,[^23] that the above-described
    complaints filed against the licensees of Stations WDCG(FM),
    WMJI(FM), and KLOL(FM) are hereby DENIED.

12. IT IS FURTHER ORDERED, that a copy of this *Memorandum Opinion and
    Order* be sent by first class mail to each of the complainants for
    which the Commission has a return address and to Richard W. Wolf,
    Clear Channel Communications, Inc., 200 East Basse Road, San
    Antonio, Texas 78209-8328.

    FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: U.S. CONST., amend. I.

[^2]: 47 U.S.C. § 326 provides: "Nothing in this Act shall be understood
    or construed to give the Commission the power of censorship over the
    radio communications or signals transmitted by any radio station,
    and no regulation or condition shall be promulgated, or fixed by the
    Commission which shall interfere with the right of free speech by
    means of radio communication."

[^3]: One such complainant also alleged a violation of the Commission's
    Personal Attack Rule (former section 73.1920 of the Commission's
    rules) as a result of her treatment during an on-air conversation
    with station personnel of the *Lanigan and Malone Show*, which
    occurred on July 3, 2003. However, because the Commission repealed
    that rule on October 26, 2000 (*see Repeal of Modification of the
    Personal Attack and Political Editorial Rules*, 15 FCC Rcd 20697
    (2000)), we will not discuss this matter further.

[^4]: Letter from Deputy Chief, Investigations and Hearings Division,
    Enforcement Bureau, to Capstar TX Limited Partnership, dated January
    26, 2004 (WDCG(FM)); letter from Deputy Chief, Investigations and
    Hearings Division, Enforcement Bureau, to Citicasters Licenses,
    L.P., dated January 26, 2004 (WMJI(FM)); letter from Deputy Chief,
    Investigations and Hearings Division, Enforcement Bureau, to AMFM
    Texas Licenses Limited Partnership, dated January 26, 2004
    (KLOL(FM)).

[^5]: Letter from Richard W. Wolf, Vice President, Clear Channel
    Communications, Inc. to Marlene H. Dortch, Secretary, Federal
    Communications Commission, dated March 5, 2004 ("WDCG(FM) letter");
    letter from Richard W. Wolf, Vice President, Clear Channel
    Communications, Inc. to Marlene H. Dortch, Secretary, Federal
    Communications Commission, dated March 5, 2004 ("WMJI(FM) letter");
    letter from Richard W. Wolf, Vice President, Clear Channel
    Communications, Inc. to Marlene H. Dortch, Secretary, Federal
    Communications Commission, dated March 5, 2004 ("KLOL(FM) letter").

[^6]: WDCG(FM) letter, *supra* note 5 at 1; WMJI(FM) letter, *supra*
    note 5 at 1; KLOL(FM) letter, *supra* note 5, at 1.

[^7]: *E.g., id*. at 2.

[^8]: WDCG(FM) letter, *supra* note 5 at 1.

[^9]: *Id*. at 2.

[^10]: *Id*. at 2. Clear Channel also notes that John Hogan, President
    and CEO of Clear Channel Radio, met with Elissa Margolin, Executive
    Director of the League of American Bicyclists to discuss ways in
    which Clear Channel could work with the bicycling community to
    promote safe bicycling. Clear Channel relates that, subsequently,
    Ms. Margolin issued a statement noting that "\[t\]he League is
    pleased with the response from Clear Channel Radio." *Id*.

[^11]: WMJI(FM) letter, *supra* note 5, at 1-2.

[^12]: *Id*. at 2.

[^13]: *Id*.

[^14]: *Id*.

[^15]: Declaration of Vince Richards, attached to KLOL(FM) letter,
    *supra* note 5, ¶ 3.

[^16]: *Id*., ¶¶ 2, 4.

[^17]: *Id*., ¶ 5.

[^18]: *Id*., ¶ 6.

[^19]: *Id.*, ¶ 7.

[^20]: U.S. [Const.]{.smallcaps}, amend. I; 47 U.S.C. § 326.

[^21]: *Spanish Radio Network*, 10 FCC Rcd 9954, 9959, ¶¶ 21-22 (1995).

[^22]: WDCG(FM) letter, *supra* note 5 at 2; WMJI(FM) letter, *supra*
    note 5, at 2-3; KLOL(FM) letter, *supra* note 5, at 2.

[^23]: 47 C.F.R. §§ 0.111(a)(11), 0.311.