Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | * | File No. BR-970508YB         |
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| Tabback Broadcasting Company     | ) |                              |
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| for Renewal of License of        | * |                              |
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| Station KAZM(AM), Sedona,        | * |                              |
| Arizona                          | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: June 23, 2000 Released: June 30, 2000**

By the Commission:

1.  The Commission has before it an April 9, 1999, Application for
    Review filed by Fairness in Radio Broadcasting Committee (\"FRBC\")
    and related responsive pleadings. FRBC seeks review of a March 10,
    1999, letter ruling by the Chief, Audio Services Division, Mass
    Media Bureau. *Letter to Tabback Broadcasting Co.*, Ref. No.
    1800B3-JR (Audio Services Division, March 10, 1999) (\"letter
    ruling\"). The letter ruling treated FRBC\'s Petition to Deny
    Tabback Broadcasting Company's (\"TBC\") above captioned application
    for the renewal of license of station KAZM(AM), Sedona, Arizona, as
    an informal objection for lack of standing, denied the informal
    objection, and granted the renewal. The letter ruling also
    admonished TBC for denying unrestricted access to the local public
    inspection file on two occasions in violation of 47 C.F.R. §
    73.3526(c),[^1] for failing to file annual ownership reports with
    the Commission in violation of 47 C.F.R. § 73.3615(a), and for
    failing to maintain copies of those records in the local public
    inspection file in violation of 47 C.F.R. § 73.3526.

2.  FRBC argues that the staff, which treated FRBC's filing as an
    informal objection because FRBC did not claim to represent actual
    listeners of the station, erred in finding that FRBC lacked standing
    to file a petition to deny. FRBC charges that this alleged
    procedural error permitted the staff to disregard the pleading cycle
    limitations associated with the petition to deny process and "led
    directly to the denial of \[FRBC's\] . . . Motion to Strike
    \[supplementary material filed by TBC outside of the time limits and
    pleading restrictions set forth in 47 C.F.R. § § 73.3584 and
    1.45\]." FRBC believes that consideration of that material was
    prejudicial.

3.  Substantively, FRBC repeats essentially the same arguments here as
    it raised in the informal objection, alleging misrepresentation in
    reporting employment statistics, discrimination in hiring,[^2]
    broadcasting of allegedly racist views, and violation of the
    personal attack rule. FRBC argues that the staff did not adequately
    consider the evidence and erred in its findings. Additionally, FRBC
    repeats its arguments concerning the public file violations and
    asserts that the admonishments for these violations were
    insufficient. FRBC also reiterates TBC's alleged misrepresentation
    in certifying to the Commission that the public file was complete.
    Lastly, FRBC asserts that each of the issues raised warrants a
    hearing or alternatively the issuance of a monetary forfeiture.

4.  We affirm the staff\'s determination that FRBC, under then
    applicable precedent, lacked standing to file a petition to deny
    where it failed to affirmatively state in an affidavit that at least
    one of its members was a resident of the station\'s primary service
    area *and* an actual listener of the station.[^3] The staff found
    that FRBC lacked standing because it only asserted residency and not
    actual listener status. The staff correctly treated FRBC's pleading
    as an informal objection. As the limitations on the number and
    timing of pleadings filed in response to petitions to deny are
    inapplicable to informal objections, the staff\'s consideration of
    TBC's supplement to its opposition was neither improper nor
    prejudicial. *See* 47 C.F.R. § 73.3587 (concerning informal
    objections). However, we note that even in proceedings where the
    strict time limitations associated with the petition to deny process
    apply, the Commission has the discretion to request or authorize the
    filing of additional material, such as material it believes relevant
    to making a public interest determination. *See* 47 C.F.R. §
    1.45(e). Since TBS's supplement, consisting of letters of support
    from the station\'s listeners concerned KAZM\'s license renewal, we
    might have properly exercised such discretion even had the
    limitations of 47 C.F.R. § 73.3584, concerning petitions to deny,
    been relevant here.

5.  On substantive matters, we find that FRBC\'s arguments were
    thoroughly considered and properly resolved by the staff, and we
    uphold the staff decision for the reasons stated therein, including
    the staff's finding that there was no intent to deceive, necessary
    to establish misrepresentation. There is no reason to disturb it.
    *See, e.g., WAMC, Inc.*, 10 FCC Rcd 12219 (1995) (denying
    application for review raising essentially the same arguments as in
    petition for reconsideration). We concur that there were no
    substantial and material questions of fact as to TBC's
    qualifications to remain a Commission licensee, and therefore that a
    hearing on TBC\'s license renewal application is not warranted. 47
    U.S.C. §§ 309(d), (e). Regarding the specific issue as to whether
    TBC's refusal on two occasions to permit unrestricted access to its
    public file and omission of annual ownership reports from the file
    warranted a forfeiture rather than an admonishment, we find that the
    staff appropriately exercised its discretion in admonishing TBC.
    *See, e.g.* *EZ New Orleans, Inc.*, FCC 99-259 (rel. Oct. 1, 1999)
    (licensee admonished where it conceded that, on at least one
    occasion, it had not fully complied with 47 C.F.R. § 73.3526);
    *Sarkes Tarzian, Inc*., 65 FCC 2d 127 (1977) (licensee admonished
    for isolated and inadvertent public file rule violations where
    errors \"freely conceded and corrected\"). *Compare KLDT-TV 55,
    Inc*., 10 FCC Rcd 3198, 3200 (1995) (forfeiture assessed for missing
    three entire categories of documents in the public file).

6.  Accordingly, IT IS ORDERED that the Application for Review filed by
    Fairness in Radio Broadcasting Committee, IS HEREBY DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]:     ^?^ At the time of the letter ruling, this public inspection
    file rule was set forth as 47 C.F.R. § 73.3526(d). It was
    subsequently revised and renumbered in *Review of the Commission\'s
    Rules Regarding the Main Studio and Local Public Inspection files of
    Broadcast Television and Radio Stations*, 13 FCC Rcd 15691, 15733
    (1998) (\"*Main Studio Order*\").

[^2]: ^?^ In *Lutheran Church-Missouri Synod v. FCC*, 141 F.3d 344 (D.C.
    Cir. 1998), *petition for reh\'g denied*, 154 F.3d 487 (D.C. Cir.
    1998), *petition for reh\'g en banc denied*, 154 F.3d 494 (D.C. Cir.
    1998), the Court of Appeals remanded to the Commission the issue of
    whether it has authority to promulgate an employment
    non-discrimination rule for broadcasters. In *Review of the
    Commission\'s Broadcast and Cable Equal Employment Opportunity Rules
    and Policies and Termination of the EEO Streamlining Proceeding*, 15
    FCC Rcd 2329 (2000), we concluded that the Commission has authority
    to retain such a rule.

[^3]: ^    ?^ Subsequently, the requirements for standing to file a
    petition to deny were modified and applied prospectively. We now
    accord party-in-interest status to a petitioner who demonstrates
    either that it is a resident of the station\'s service area *or*
    that the petitioner listens to or views the station regularly, and
    that such listening or viewing is not the result of transient
    contacts with the station. *See Maumee Valley Broadcasting, Inc.*,
    12 FCC Rcd 3487, 3488-3489 (1997), *as modified by CHET-5
    Broadcasting, L.P.*, 14 FCC Rcd 13041 (1999). However, a petitioner
    must still satisfy the procedural requirements of 47 U.S.C. §
    309(d)(1) and 47 C.F.R. § 73.3584.