Non-reply to protester leaves KDWB vulnerable to FCC complaint


On Friday, a protester outside of KDWB-FM didn’t get an answer to his request. Now the radio station may be the target of an FCC complaint because of it.

During Friday’s impromptu meeting with protesters upset over KDWB’s airing of a song that makes fun of the Hmong community, St. Paul Community Leader John Slade asks the station representatives if they could inspect the station’s public file-a file that contains comments from the public on KDWB’s programming as well as many other things the Federal Communication Commission requires.

Present was KDWB President and Marketing Manager Mike Crusham, KDWB Director of Sales Art Morales and Media Lawyer Amy Rotenberg who was also representing the station. As you can hear from the audio, the request from Slade to examine the public file was clear and easy to hear. In the video none of the station representatives acknowledges or replies to the request.

KDWB President Mike Crusham says he heard the request from the Slade, but “didn’t know how to answer” since it was during a protest. Crusham says the public file is available on a kiosk inside the KDWB offices. However with Crusham present, building management told protesters they would not be allowed in the building. Asked later what was preventing him from letting one person into the building to examine the public file Crusham says “nothing”.

FCC rules say that denying a member of the public access to the station’s public file is against the rules. The suggested fine for such a violation is $10,000.

Slade says he is mulling over filing a complaint with the FCC for the public file request violation. He is familiar with broadcast public files the FCC complaint process. He helped co-found a group called the Counter Propaganda Coalition, which reviewed station public files and challenged the licenses of a radio and a TV station.

The FCC has fined stations in the past for using security as an excuse to prevent people from examining the public file. Most recently TV station KCET in Los Angeles was ordered to pay a $10,000 fine when a security guard prevented an FCC inspector from entering the the station to examine the public file because he didn’t make an appointment ahead of time. The order against KCET notes that while “brief, security-related delays to access a public file are reasonable”, denying access is a big no-no.

Slade said wanted to to see if the station the letters, email, and other communication that they’ve gotten “since their racist radio outburst late last month.”

Slade has not heard from KDWB-FM about his request to view the public file. That may be partly because KDWB President Crusham thought the request came from Dan McGrath of Take Action Minnesota. Slade hasn’t decided if he is going to go back to the station. KDWB’s Crusham told The UpTake anyone is welcome to view the public file during business hours.

Would KDWB be fined?

Should a complaint be filed, the FCC would need to determine whether three station representatives not responding to a clear request is the same as a denial and if it makes any difference that the person making the request was a protester. The FCC will fine a station if it “willingly and repeatedly” violates the rules. In past decisions the FCC has decided that “willingly” means that the station knew about it. Crusham already admits the request for the public file was ignored. However, the request from the protesters on Friday was made only once, so it would be hard for the FCC to see that as “repeatedly”. But should it happen again, the possibility of a fine is there.

The FCC takes restricting access to public files very seriously. Davis Wright Tremaine LLP is a legal firm that offers advice to broadcast stations on complying with FCC regulations. On it’s website, the company is pretty emphatic that radio stations need to be proactive when it comes to letting the public see what’s in the file.

The public inspection file must be made available to anyone who comes to the studio and asks to see it. Before a station grants access to its public inspection file, it may ask a party requesting access to provide his or her name and address, but the station may not require the person to identify the organization on whose behalf he or she is requesting access, or the reason that he or she is asking to see it.

Stations should ensure that every employee (even temporary or substitute employees) who will be greeting members of the public is aware of the location of the public file and the procedures for reviewing that file. Members of the public asking to view the file should not be made to wait until someone from “management” is available to be there. The file should be provided immediately, upon requests made during normal business hours. Station employees should not ask why someone wants to see the file, and should not be perceived as attempting to look over the shoulder of the person inspecting the file in an attempt to decipher the reason for the inspection. Station employees should observe the inspection only to the extent necessary to ensure the security of the file.

What is a public file and why is it important?

Radio stations don’t own a frequency, they license it from the Federal government. For the exclusive right to use that public frequency, radio stations are required to be transparent about important items such as who really owns the station, how it hires people, and the comments it gets from the public. This information is kept in what is called a “public file”.

§ 73.3526 Rules on what is kept in a public file and how the public can look at it .

(e) Contents of the file. The material to be retained in the public inspection file is as follows:

(1) Authorization. A copy of the current FCC authorization to construct or operate the station, as well as any other documents necessary to reflect any modifications thereto or any conditions that the FCC has placed on the authorization. These materials shall be retained until replaced by a new authorization, at which time a copy of the new authorization and any related materials shall be placed in the file.

(2) Applications and related materials. A copy of any application tendered for filing with the FCC, together with all related material, and copies of Initial Decisions and Final Decisions in hearing cases pertaining thereto. If petitions to deny are filed against the application and have been served on the applicant, a statement that such a petition has been filed shall be maintained in the file together with the name and address of the party filing the petition. Applications shall be retained in the public inspection file until final action has been taken on the application, except that applications for a new construction permit granted pursuant to a waiver showing and applications for assignment or transfer of license granted pursuant to a waiver showing shall be retained for as long as the waiver is in effect. In addition, license renewal applications granted on a short-term basis shall be retained until final action has been taken on the license renewal application filed immediately following the shortened license term.

(3) Citizen agreements. A copy of every written citizen agreement. These agreements shall be retained for the term of the agreement, including any renewal or extension thereof.

Note to paragraph (e)(3): For purposes of this section, a citizen agreement is a written agreement between a broadcast applicant, permittee, or licensee, and one or more citizens or citizen groups, entered for primarily noncommercial purposes. This definition includes those agreements that deal with goals or proposed practices directly or indirectly affecting station operations in the public interest, in areas such as-but not limited to-programming and employment. It excludes common commercial agreements such as advertising contracts; union, employment, and personal services contracts; network affiliation, syndication, program supply contracts, etc. However, the mere inclusion of commercial terms in a primarily noncommercial agreement-such as a provision for payment of fees for future services of the citizen-parties (see “Report and Order,” Docket 19518, 57 FCC 2d 494 (1976))-would not cause the agreement to be considered commercial for purposes of this section.

(4) Contour maps. A copy of any service contour maps, submitted with any application tendered for filing with the FCC, together with any other information in the application showing service contours and/or main studio and transmitter location (State, county, city, street address, or other identifying information). These documents shall be retained for as long as they reflect current, accurate information regarding the station.

(5) Ownership reports and related materials. A copy of the most recent, complete ownership report filed with the FCC for the station, together with any statements filed with the FCC certifying that the current report is accurate, and together with all related material. These materials shall be retained until a new, complete ownership report is filed with the FCC, at which time a copy of the new report and any related materials shall be placed in the file. The permittee or licensee must retain in the public file either a copy of the contracts listed in such reports in accordance with §73.3615(a)(4)(i), or an up-to-date list of such contracts. Licensees or permittees who choose to retain a list of contracts must provide a copy of any contracts to requesting parties within 7 days.

(6) Political file. Such records as are required by §73.1943 to be kept concerning broadcasts by candidates for public office. These records shall be retained for the period specified in §73.1943 (2 years).

(7) Equal Employment Opportunity file. Such information as is required by §73.2080 to be kept in the public inspection file. These materials shall be retained until final action has been taken on the station’s next license renewal application.

(8) The public and broadcasting. At all times, a copy of the most recent version of the manual entitled “The Public and Broadcasting.”

(9) Letters and e-mail from the public. (i) All written comments and suggestions received from the public regarding operation of the station, unless the letter writer has requested that the letter not be made public or when the licensee feels that it should be excluded from public inspection because of the nature of its content, such as a defamatory or obscene letter. Letters and electronic mail messages shall be retained for a period of three years from the date on which they are received by the licensee.

Read more:
FCC rules say the suggested fine for violation of the public file rules is $10,000

Video by Bill Sorem