Over the weekend, Dan Morain, editorial page editor at Sacramento Bee, wrote an article about what I've been working on, and writing about here at The BRAD BLOG and elsewhere, for many years now.
Morain's article starts this way:
Sue from Fiddletown won, on our behalf. You can hear the sound of that victory at the end of the FM radio dial in Sacramento. Where there once was commercial pop music, hooting deejays and stupid radio stunts, there’s static.
"We the People own the air waves," she said, and repeats: "We the People."
It's a very nice article, that begins with a tragic story. That story, however, now has at least a somewhat encouraging ending for, yes, We the People.
Here's what happened...
Ten years ago, a Sacramento mother of three died at the hands of an out of control radio station seeking to boost ratings and profits. Her family's attorney, Roger Dreyer, wrote to the Federal Communications Commission asking that the broadcast license of Entercom Sacramento's KDND 107.9 "The End", be revoked due to their tragic stunt, a live, on air, "Hold Your Wee for a Wii" contest.
In 2009, upon winning a civil trial and a $16 million award against the station, Dreyer dropped that request.
As a former broadcaster turned Public Interest advocate, I believed the FCC, which hasn't actually revoked a broadcasters' license in anyone's memory, needed to make a statement to the radio industry. Because the airwaves belong to the public, and since radio spectrums are so scarce (there are only so many frequencies in any one geographic area, therefore competition is extremely limited), broadcasters make a deal with We the People: they may operate only if they "serve the public interest."
Having covered the trial, I learned that KDND lured listeners into a contest the station knew was deadly, then obfuscated that threat, then made fun of contestants as they became violently ill, then abandoned Jennifer Strange after she cried for help. Then, upon learning Mrs. Strange had died, chose to call attorneys rather than other contestants who may have needed medical attention.
Was that "serving the public interest"? Clearly not. The DMV takes drivers' licenses for reckless driving; if ever there was a case for denying a broadcaster's license, this was it. Otherwise, why have licensing or a process for revoking it at all?
Licenses to operate Radio stations come up for renewal just once every eight years; the FCC does not act on Petitions to Deny the renewal of such licenses until the end of the license period, which, in this case, was 2013. For 4 years after the trial, I sought assistance from national media reform organizations and public interest FCC attorneys nationwide. Common Cause and the local Sacramento Media Group helped; Roger Smith filed an informal objection to the license renewal. The others wished me luck, but would not assist, saying I was on a Quixotic endeavor I was certain to lose.
So using my own Media Action Center moniker, I wrote the 21-page legal Petition myself. (This was not a signature gathering petition, but rather a detailed legal brief with dozens of pages of evidence.) I tried to convince contestants to put their names on it; some agreed, but backed out because it was just too traumatic. In theory, I had legal standing myself, as a resident of KDND's license area and a listener. So with Washington DC attorney Art Belendiuck's review, I filed the Petition to Deny KDND's license on the last day allowable, October 31, 2013.
I thought that was the end of it; I planned to give it some time, prod the FCC, then write a snarky article for The BRAD BLOG, pointing out how ineffective the FCC really is, as I have so many times before.
But the FCC surprised me.
On October 26 last year, I received a call from Belendiuck, advising me the FCC had taken my case and was bringing Entercom to trial to defend its license. The scathing 36-page Hearing Designation Order [PDF] stated the burden of proof would fall on Entercom. It would be up to them to demonstrate why they should be allowed to keep their license to broadcast over 107.9 in Sacramento.
Belendiuck couldn't take the case personally, so again I reached out to D.C. public interest attorneys. Again, although this was now a real case, the likes of which had not been seen in 40 years, none would take it on. Entercom had amassed a team of six lawyers when, much to my relief, Bay Area attorney Michael Couzens stepped up, and together we filed motion after motion, preparing to take it all the way to the Supreme Court.
Then, on February 2, Entercom announced its merger with another broadcast behemoth, CBS Radio. How, I wondered, would Entercom get approval for the merger from the FCC at the same time they would be fighting my case at the same agency? The answer came the next day: Entercom announced it was "surrendering" the $13.5 million license of KDND, couching it as normal business practice. It was anything but.
Now, when people go to 107.9, all they hear is static. "The End" programming moved over to another Entercom-owned frequency, 106.5, replacing the lower rated rock programming once found on KUDL.
Many will ask what has been gained from this exercise. It's certainly not money. The FCC will not allow Petitioners (me, in this case) any financial incentive; the purpose of such a petition must be to act in the public interest. I recently reached a settlement agreement with Entercom to recoup my expenses, but I will not be compensated for the hundreds of hours of my time.
Although the case never went to trial, the judge, in approving the settlement, wrote, "Entercom has avoided the Commission hearing process by surrendering its license for KDND(FM). … Finally, Entercom has willingly accepted the severest penalty of a renewal case by surrendering forever its license to operate KDND(FM), Sacramento, California."
In dollars, aside from the judgement owed to Jennifer Strange's family, which Entercom's insurance company paid, the cost of giving up KDND's frequency, according to the company, was $13.5 million. That was the estimated value of that very popular station. And, although they placed their programming on another station, they have lost the right to program on a 50,000 watt powerhouse of a frequency and listeners must surf around to find the programming they once heard on 107.9. They also completely lost the revenue from the 106.5 station they once programmed. It's not chump change.
The big takeaway, though, is that there is finally a clear message from the FCC to the broadcast industry that indeed, there is a public interest obligation in broadcasting over our public airwaves, something that "conservatives" have long argued does not exist. It is interesting to note that all five FCC commissioners gave their stamp of approval to having this case heard. (I'm told there is almost always a partisan split. But not this time.) The mere fact that this was headed to trial at all is --- or should be --- a wakeup call for the radio industry. I'm told it has been 40 years since the FCC called a hearing (trial) on a license renewal like this. The hearing designation order [PDF] itself is a scathing indictment of Entercom. Over and over again, it cites Entercom's failure to serve the public interest, words we have not heard in a long time, words which are treated like "indecency": I don't know how to define it, but I know it when I see it.
Industry media covered this process extensively, so there is no question that radio operators throughout the US finally understand that their licenses to use our public airwaves must not be taken for granted, and can be taken away if they do not serve the public interest.
Unfortunately, the FCC order does not discuss the character of the Entercom corporation, which we had included in the original Petition to Deny. That's a big deal because, if Entercom does not have the character to run one station, they don't have the character to run any. Our motion to expand the license challenge into issues of character is one reason the company settled. Another is that Entercom would be fighting me in a trial at the FCC at the same time they would be trying to get the FCC to approve their merger with CBS.
The bad news is that, in exchange for settling the case (so I could pay my attorney) I am unable to go up against the still-pending CBS Radio merger, "directly or indirectly." Somebody should, but I don't think anyone will. Everyone advised me that I wouldn't win anyway, but they said that about the J. Strange case also.
The good news is that a 50,000 watt frequency will be coming to auction, and I want to put together a group to buy it and do real radio in this state capital of California. It will be a rare opportunity to score a huge radio station that won't be programmed by and for the corporate media giants.
I have asked many times over the years --- in my documentary film Broadcast Blues and in my volumes of writing on this topic --- "Can a radio station actually kill a woman and retain its license to broadcast?" Thankfully, the answer is no, it cannot.
Sue Wilson is an Emmy and AP award winning broadcast journalist turned media reform activist, director of the media reform documentary Broadcast Blues, and founder of the Media Action Center. You can reach her at firstname.lastname@example.org or on Twitter at @sueblueswilson.