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 Federal  Communications  Commission  DA  04-  2120 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 GREATER  BOSTON  RADIO,  INC. 
 Licensee  of  Station  WTKK(  FM),  Boston,  Massachusetts 

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 File  No.  EB-  04-  IH-  0181  Facility  ID  #  25050 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  July  13,  2004  Released:  July  14,  2004 
 By  the  Chief,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order,  we  deny  complaints  filed  against  Greater  Boston  Radio,  Inc.  (  Greater  Boston),  licensee  of  Station  WTKK(  FM),  Boston,  Massachusetts,  for  broadcasting 

 certain  comments  over  the  station  by  a  talk  show  host  by  which  he  allegedly  advocated  violence  against  Muslims.  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  type  of  commentary,  we  conclude  that 
 the  broadcast  in  question  does  not  warrant  enforcement  action  prior  to  an  adjudication  by  a  court  of  competent  jurisdiction  that  the  broadcast  posed  a  clear  and  present  danger. 

 II.  BACKGROUND 
 2.  This  matter  involves  a  number  of  similar  complaints  alleging  that,  on  or  about  April  22,  2004,  Station  WTKK(  FM)  broadcast  comments  by  a  talk  show  host  in  which  he  advocated  violence 

 against  Muslims.  3  Specifically,  the  complaints  allege  that  the  host  stated  over  the  air,  I  believe  that  Muslims  in  this  country  are  a  fifth  column  .  .  .  You  believe  that  we  should  befriend  them.  I  think  we 
 should  kill  them.  The  complaints  also  allege  that  the  host  advocated  dropping  bombs  in  the  Middle  East  to  kill  Muslims.  The  complainants  generally  express  outrage  that  Station  WTKK(  FM)  broadcast 
 such  inflammatory  speech,  and  many  of  them  request  that  the  Commission  assess  a  fine  against  the  station  and/  or  prohibit  future  broadcasts  of  such  language. 

 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  To  date,  the  Commission  has  received  approximately  eighty  complaints  concerning  this  broadcast. 
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 III.  DISCUSSION 
 3.  The  Federal  Communications  Commission  is  authorized  to  license  radio  and  television  broadcast  stations  and  is  responsible  for  enforcing  the  Commissions  rules  and  applicable  statutory 

 provisions  concerning  the  operation  of  those  stations.  However,  the  Commissions  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.  4 

 4.  Consistent  with  those  constraints,  the  Commission  has  previously  held: 
 It  is  the  judgment  of  the  Commission,  as  it  has  been  the  judgment  of  those  who  drafted  our  Constitution  and  of  the  overwhelming  majority  of  our  legislators  and  judges  over  the 
 years,  that  the  public  interest  is  best  served  by  permitting  the  expression  of  any  views  that  do  not  involve  a  clear  and  present  danger  of  serious  substantive  evil  that  rises  far  above 
 public  inconvenience,  annoyance,  or  unrest.  Terminiello  v.  Chicago,  337  US  1,  4  (1949);  Chaplinsky  v.  New  Hampshire,  315  US  568;  Ashton  v.  Kentucky,  384  US  195,  34 
 LW  4398  (1966).  This  most  assuredly  does  not  mean  that  those  who  uphold  this  principle  approve  of  the  opinions  that  are  expressed  under  its  protection.  On  the  contrary,  this 
 principle  insures  that  the  most  diverse  and  opposing  opinions  will  be  expressed,  many  of  which  may  be  even  highly  offensive  to  those  officials  who  thus  protect  the  rights  of 
 others  to  free  speech.  If  there  is  to  be  free  speech,  it  must  be  free  for  speech  that  we  abhor  and  hate  as  well  as  for  speech  that  we  find  tolerable  or  congenial.  5 

 5.  There  is  no  statutory  provision  or  Commission  rule  that  the  complained-  of  broadcast  would  appear  to  violate.  Instead,  the  only  issue  before  us  is  whether  the  broadcast  calls  to  question  the  basic 
 qualifications  of  Greater  Boston  to  be  and  remain  a  licensee  of  the  Commission.  In  light  of  Commission  precedent  on  point,  we  find  that  no  question  regarding  the  licensees  basic  qualifications  are  raised  in  the 
 absence  of  a  decision  by  a  court  of  competent  jurisdiction: 
 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. 

 4  U.  S.  CONST.,  amend.  I;  47  U.  S.  C.    326. 
 5  Anti-  Defamation  League  of  B'nai  B'rith,  4  FCC  2d  190,  191  (1966),  aff'd  sub  nom.  Anti-  Defamation  League  of 
 B'nai  B'rith  v.  FCC,  403  F.  2d  169  (D.  C.  Cir.  1968),  cert.  denied,  394  U.  S.  930  (1969);  see  also  In  re  Complaint  of  Julian  Bond,  Atlanta  NAACP,  69  FCC  2d  943  (Broadcast.  Bur.  1978). 
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 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.  6 
 6.  It  appears  that,  to  date,  no  local  court  of  competent  jurisdiction  has  found  that  any  of  the  material  aired  over  Station  WTKK(  FM)  that  is  the  subject  of  the  instant  complaints  met  the  clear  and 

 present  danger  test.  Indeed,  as  far  as  we  know,  no  civil  or  criminal  action  of  any  kind  has  been  brought  against  Greater  Boston  regarding  the  complained-  of  broadcast.  Viewing  these  circumstances  in  light  of 
 the  Commissions  clear  directive  regarding  treatment  of  broadcast  speech  that  allegedly  advocates  or  incites  violence,  we  conclude  that  no  substantial  question  exists  concerning  Greater  Bostons 
 qualifications  and  that  Commission  action  is  not  warranted. 
 IV.  ORDERING  CLAUSES 
 7.  ACCORDINGLY,  IT  IS  ORDERED,  pursuant  to  sections  0.111(  a)(  11)  and  0.311  of  the  Commissions  rules,  7  that  the  above-  described  complaints  filed  against  Greater  Boston  Radio,  Inc.  are 

 hereby  DENIED. 
 8.  IT  IS  FURTHER  ORDERED,  that  a  copy  of  this  Memorandum  Opinion  and  Order  be  sent  by  first  class  mail  or  e-  mail  to  each  of  the  complainants  for  which  the  Commission  has  a  return  or  e-  mail 

 address  and  to  Greater  Boston  Radio,  Inc.,  35  Braintree  Hill  Office  Park,  Suite  300,  Braintree,  Massachusetts  02184. 

 FEDERAL  COMMUNICATIONS  COMMISSION 
 David  H.  Solomon  Chief,  Enforcement  Bureau 

 6  Spanish  Radio  Network,  10  FCC  Rcd  9954,  9959,    21-  22  (1995). 
 7  47  C.  F.  R.    0.111(  a)(  11),  0.311. 
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