> **DA 08-2501**

*In Reply Refer to:*

1800B3-TSN

> Released: November 13, 2008

Mr. Stephan Myers

92 Hickory

Brookeland, TX 75931

Mr. James M. Lout

765 Hemphill Street

Jasper, TX 75951

In re: **James M. Lout**

New (FM), Pineland, Texas

Facility ID No. 170971

File No. BNPH-20070502ABN

**Application for FM Broadcast**

> **Station Construction Permit**

Dear Objector and Applicant:

We have before us a letter (the "Objection") filed June 19, 2007, from
Mr. Stephan Myers ("Myers"). Myers states that he and 11 other named
citizens of the Jasper, Texas, area "petition that a denial of license
occur" for the application of James M. Lout ("Lout") for a new FM
broadcast station at Pineland, Texas (the "Application").[^1] For the
reasons set forth below, we deny the Objection and grant the
Application.

**Background.** Lout was the provisionally winning bidder for the
Pineland, Texas, construction permit in FM Broadcast Auction No. 70
("Auction 70"), which concluded on March 26, 2007.[^2] Lout timely filed
his post-auction Form 301 long-form Application on May 2, 2007. Public
notice of acceptance of the Application for filing was given on May 16,
2007.[^3] On June 19, 2007, Myers filed the Objection, which was dated
May 30, 2007, and which did not indicate that it had been served upon
Lout or his counsel. Lout, having obtained a copy of the Objection from
Commission staff, filed an Opposition to Petition to Deny and Motion to
Strike on July 16, 2007 ("Opposition"). On August 3, 2007, Myers
submitted a number of additional documents, including a "Response to
Opposition to Petition to Deny" (collectively "Reply").

**Discussion.** *Procedural Issues*. Lout asserts that Myers failed to
serve Lout with a copy of the Objection, that the Objection was untimely
filed, and that it lacked a signature. Additionally, Lout notes Myers's
failure to provide an affidavit or a declaration under penalty of
perjury in support of the allegations in the Objection, and the fact
that none of the individuals named in the Objection appear to reside in
Pineland or are alleged to be listeners of Lout's other station.[^4]
Lout concludes that Myers lacks standing to file a petition to deny.[^5]

Lout is correct that the Objection was untimely. Under the Commission's
Rules, a petition to deny a post-auction long-form application must be
filed within ten days following public notice that the application has
been accepted.[^6] In this case, public notice that the Application was
accepted was given on May 16, 2007, thus a petition to deny must have
been filed by May 26, 2007. The Objection was dated May 30, 2007, four
days too late, and was not received at the Commission until June 19,
2007. Moreover, Lout is correct that only individuals residing in a
station's proposed service area have standing as listeners to challenge
an application.[^7] As it is impossible to determine the petitioners'
residences from the showing in the Objection,[^8] Myers fails to meet
his pleading burden with regard to their standing to interpose a
petition to deny the Application.

In the Reply, Myers admits he did not serve the Objection on Lout, but
complains that he had requested the Objection remain confidential and
that its contents not be divulged to Lout, for fear of retaliation by
Lout against the objecting parties.[^9] We disregard the confidentiality
complaint for a number of reasons. First, the Objection clearly states
that it seeks denial of the Application.[^10] Section 309(d) of the
Communications Act of 1934, as amended (the "Act") requires that a
petition to deny an application be served on the applicant.[^11] The Act
does not otherwise provide for the filing of "confidential" petitions to
deny. Moreover, Myers did not file a request for confidentiality under
Section 0.459 of the Commission's Rules.[^12] Finally, while Myers
attaches to his Reply a purported copy of the Objection that bears the
legend, "Confidential; Not for public inspection" at the top of all
pages, the original Objection filed with the Commission bore no such
legend on any page. Thus, Myers made no valid confidentiality request
when he filed the Objection.

Lout is also correct in observing that the Objection lacks an affidavit
or declaration signed by a person or persons with personal knowledge of
the facts alleged, as required by the Act.[^13] Instead, Myers lists the
names of "witnesses" to the facts alleged, none of whom is Myers himself
(who, in any event, did not sign the Objection). Accordingly, we find
that Myers has not established standing to file a petition to deny, nor
has he provided a sufficient affidavit or declaration in support of the
Objection. Because the Objection was untimely and did not comply with
the Act or the Commission's Rules, we therefore consider it as an
informal objection under Section 73.3587 of the Rules.[^14]

*Substantive Matters*. As with all petitions or objections seeking to
deny an application for a new station, here we must first determine
whether Myers has made specific allegations of fact that, if true, would
demonstrate that grant of the application would be *prima facie*
inconsistent with the public interest. These specific allegations must
be supported by the affidavit of a person with knowledge of the facts
alleged, except for those of which we may take official notice.[^15] If
the specific allegations make a *prima facie* case, we next examine and
weigh the evidence presented, to determine "whether the totality of the
evidence arouses a sufficient doubt on the point that further inquiry is
called for."[^16] We must also determine whether grant or denial of the
application would serve the public interest.[^17]

Myers tenders six basic allegations against Lout. Of the six
allegations, three concern off-air behavior by Mr. Lout: an allegation
that he opposed an African-American purchasing a competing radio station
in the Jasper, Texas, area, and used a denigrating epithet to refer to
the potential station buyer;[^18] an allegation that he sent a volunteer
poll worker a thick package of anti-Semitic literature;[^19] and an
allegation that Lout punched a patron at a local country club after the
patron asked his girlfriend to dance.[^20] While none of the acts
alleged, if true, would reflect favorably on Mr. Lout, in order to
challenge Lout's character qualifications as a Commission licensee or
permittee, one would need to allege more, such as a felony conviction or
adjudicated criminal misconduct relating to fraud or broadcast-related
activities.[^21]

The remaining allegations concern alleged on-air behavior by Lout at
station KJAS(FM). Specifically, Myers alleges that: "at one time or
another" everyone he interviewed stated that they heard Lout "on the air
speaking with slurred speech and suspected he was under the influence of
alcohol"; one (unnamed) witness stated that he went to the KJAS(FM)
studio at the time of Lout's emergency broadcast during Hurricane Rita,
and that Lout "reeked" of whiskey;[^22] Lout and his associates use
Lout's Thursday evening talk program on KJAS(FM) to "embarrass, harass,
criticize or intimidate local townspeople, telling negative, often
completely fabricated or grossly misleading stories about them and
accusing them falsely";[^23] and Lout "slants his local news reporting"
to favor the current mayor of Jasper, Texas, and invites the mayor to
appear on air up until the time period for providing equal time to
opposing candidates, thereby giving the mayor an "unfair political
advantage."[^24] Myers notes that Lout's Thursday night talk show on
KJAS(FM) has since been discontinued, although he states his suspicion
that the discontinuance coincides with Lout's Pineland application and
any public comment associated with that.[^25]

Again, however, even assuming that there were evidentiary support for
Myers's allegations, if true they would not raise a substantial and
material question of fact regarding Lout's qualifications. The personal
attack and political editorial rules were repealed by the Commission
seven years ago,[^26] thus Lout's alleged on-air attacks or criticisms
of individuals do not violate any current Commission Rule or
policy.[^27] Further, Myers admits that Lout's interviews with the mayor
of Jasper ceased during election cycles when the equal time rules are in
effect,[^28] thus he alleges no violation of those rules. Finally, with
regard to the allegations concerning Lout's alleged on-air intoxication,
Myers cites no specific rule violations. His bare statement that because
the counties surrounding Jasper are "dry," and thus on-air intoxication
"violates community standards for decent behavior," is insufficient to
raise a substantial and material issue of fact regarding Lout's
qualifications.[^29]

It bears repeating that Myers has not supported his allegations with
proper evidence. In the Reply, Myers offers to obtain affidavits from
"at least a few of the petitioners," while stating that many would be
"afraid" to participate further.[^30] Myers then states: "I request and
strongly urge you to send an enforcement official to the area to
personally interview the petitioners and listed witnesses and obtain
sworn statements regarding these allegations."[^31] Given the lack of
evidence presented in the Objection and Reply, such action is
unwarranted. Allegations that merely raise questions and demand further
Commission investigation do not suffice to raise a substantial and
material question of fact as to an applicant's qualifications.[^32]
Thus, we find that Myers fails to raise a substantial and material
question of fact regarding Lout's qualifications as a Commission
licensee warranting further inquiry or action.

**Conclusion.** Based on the pleadings and evidence presented, we find
no evidence sufficient to raise a substantial and material issue of fact
regarding Lout's qualifications. Accordingly, the Objection IS DENIED.
Lout's Motion to Strike IS DENIED. We have examined the Application, and
are satisfied that Lout is fully qualified to be a Commission licensee,
and that grant of the Application is in the public interest. Therefore,
the Application IS GRANTED.[^33]

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: Christopher D. Imlay, Esq., Counsel for James M. Lout

[^1]: File No. BNPH-20070502ABN.

[^2]: *Auction of FM Broadcast Construction Permits Closes, Winning
    Bidders Announced for Auction No. 70*, Public Notice, 22 FCC Rcd
    6323 (MB/WTB 2007).

[^3]: *Broadcast Applications*, Public Notice, Report No. 26487 (May 16,
    2007).

[^4]: Lout has been the licensee of Station KJAS(FM), Jasper, Texas,
    since the original construction permit was granted on July 30, 1992.
    Several of the allegations in the Objection refer to his conduct in
    operating that station.

[^5]: Opposition at 2-5.

[^6]: 47 C.F.R. § 73.5006(b).

[^7]: *See, e.g., Petition for Rulemaking to Establish Standards for
    Determining the Standing of a Party to Petition to Deny a Broadcast
    Application*, Memorandum Opinion and Order, 82 FCC2d 89, 98-99
    (1980) (an individual may qualify as a party in interest if he
    alleges he is a listener or viewer of the station in question or
    resides within the station's service area). *See also National
    Broadcasting Co., Inc*., Memorandum Opinion and Order, 11 FCC Rcd
    10779, 10780 (1996) (denying standing to individual who viewed
    WNBC-TV on frequent travels to New York City; the Commission accords
    standing to those who reside in the service area, not to
    transients); *CHET-5 Broadcasting, L.P.*, Memorandum Opinion and
    Order, 14 FCC Rcd 13041, 13042 (1997) (standing accorded to both
    residents of a station's service area and non-residents who are
    regular viewers or listeners, but not to transients).

[^8]: Objection at first-second unnumbered pages.

[^9]: Reply, Document \# 2 at first-second unnumbered pages, Document \#
    3 at first unnumbered page.

[^10]: *Id*. at first unnumbered page.

[^11]: 47 U.S.C. § 309(d)(1) ("The petitioner shall serve a copy of such
    petition on the applicant.")

[^12]: 47 C.F.R. § 0.459.

[^13]: 47 U.S.C. § 309(d)(1) ("Such allegations of fact shall, except
    for those of which official notice may be taken, be supported by
    affidavit of a person or persons with personal knowledge thereof.")
    *See also* 47 C.F.R. § 1.16 (allowing unsworn declaration under
    penalty of perjury in lieu of a sworn affidavit in certain
    circumstances).

[^14]: 47 C.F.R. § 73.3587. Because we may consider Myers's pleading as
    an informal objection, we will deny Lout's Motion to Strike the
    Objection.

[^15]: 47 U.S.C. § 309(d); 47 C.F.R. § 73.5006(b).

[^16]: *Citizens for Jazz on WRVR v. F.C.C.*, 775 F.2d 392, 395 (D.C.
    Cir. 1985). *See also* 47 U.S.C. § 309(d)(1) ("The petition shall
    contain specific allegations of fact sufficient to show that . . .
    grant of the application would be *prima facie* inconsistent with
    \[Section 309(a)\]. Such allegations of fact shall, except for those
    of which official notice may be taken, be supported by affidavit of
    a person or persons with personal knowledge thereof."); 47 C.F.R. §
    73.3584(b).

[^17]: *Astroline Communications Co. v. F.C.C.*, 857 F.2d 1556, 1561
    (D.C. Cir. 1988). *See also Rocky Mountain Radio Co., LLP*,
    Memorandum Opinion and Order, 15 FCC Rcd 7166, 7167 (1999).

[^18]: Objection at second-third unnumbered pages.

[^19]: Objection at third unnumbered page.

[^20]: *Id*.

[^21]: *See Policy Regarding Character Qualifications in Broadcast
    Licensing*, Policy Statement and Order, 5 FCC Rcd 3252 (1990),
    *modified*, 6 FCC Rcd 3448 (1991), *further modified*, 7 FCC Rcd
    6564 (1992).

[^22]: Objection at third unnumbered page.

[^23]: *Id*. at fourth unnumbered page.

[^24]: *Id*.

[^25]: *Id*. at fifth unnumbered page.

[^26]: *Repeal or Modification of the Personal Attack and Political
    Editorial Rules*, Order, 15 FCC Rcd 20697 (2000).

[^27]: Myers produced no evidence that Lout's on-air statements had been
    adjudicated as defamatory.

[^28]: *See generally* 47 U.S.C. § 315, 47 C.F.R. §§ 73.4185, 73.4190.

[^29]: Objection at third unnumbered page.

[^30]: Reply, Document \# 2 at second unnumbered page.

[^31]: *Id*.

[^32]: *See* *Pinelands, Inc. and BHC Communications, Inc.*, Memorandum
    Opinion and Order, 7 FCC Rcd 6058, 6058 n.2 (1992) (denying request
    for investigation based solely on speculation). *See also* *Mr.
    Lawrence E. Steelman, Capstar TX Limited Partnership, Mr. Stanley
    Daniels*, Letter, 22 FCC Rcd 4866, 4869 (MB 2007) (petition for
    reconsideration "was an amalgam of conclusion, speculation,
    supposition, trade press articles, and other material that did not
    raise a substantial and material question of fact," thus no
    evidentiary hearing was required); *Mr. Benjamin L. Stratemeyer and
    Ms. Janet Jensen*, Letter, 21 FCC Rcd 11715, 11716 (MB 2006).

[^33]: File No. BNPH-20070502ABN.