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Safe Appeals FM Ruling To FCC
t;i‘Tl}e owner oftg 'l‘r}ilon broad
cas corporation has asked
the‘fufil Federal Communica
tions Commission (FCC) to
overturn an earlier decision to
g::t an FM license to another
Safe Broadcasting Corp.,
owned by Terry Adag)s, filiped
the ;pé:eal last Thursday with
the FCC, It seeks to overturn
an FCC Review Board's deci
sion to grant an FM license to
Tri-State Broadcasting Corp.,
owner of WGTA-KM in
Summerville.
Safe formerly owned
WSAF-AM in Trion.
The FCC'’s review panel on
Nov. 13 said that an ad
ministrative law judge with the
FCC had ruled gfl)erly when
he granted the license to
Tri-State and not to Safe.
LONGER
The review board said it
awarded the license to Tri-
State because its owner,
William Farrar, had been in
volved in community and civic
affairs lo than Xdams and
because %Earrar has more
broadcast experience than
Adams.
It rejected Safe’s conten
tion that Tri-State has misled
the FCC by listing on its logs
the names of programs that it
no longgr broadcast. The
review board said the listings
were errors and didn’t show
evidence that Tri-State
“engaged in intentional decep
tion.”
In its appeal to the full FCC
of the review board decision,
Safe said the administrative
law judge and review panel
both failed to take into account
several issues.
Safe stated the following in
part:
‘“...Notwithstanding
clear and convincing evidence
that Tri-State's issues/pro
grams lists were nothing more
than photocopies, and, thus,
were never prepared by Tri-
State for years, and included
references to %-gegrams which
had long since been withdrawn
from distribution by the pro
grams’ producers, the
q‘x:siding officer found that
i-State had comglied with
the commission’s public inspec
tion file rule, had not sought to
mislead the commission or the
general public that specific
issue responsive programming
describego theregl g:\d been
broadcast, and found Tri-State
to be comparatively superior to
Safe. The review board, large
ly quot.i:;f from the supplemen
tal initial decision’s own flaw::
:ed findings and erroneous con
clusions, affirmed. Safe
respectfully submits that both
the presidindg officer and the
review board adopted findings
not supported by substantial
evidence in the record as a
whole, committed prejudicial
errors of substantive and (fro
cedural law, and rendered deci
sions which were arbitrary,
capricious, and in direct con
flict with existing commission
policy. The decision of the
review - board must be
reversed ... ; -
““The issues/programs lists
which/Tri-State placed in its
&Jblic ‘inspection file - for
VGTA were not flrepared in
compl.iance with the commis
sion’s rules. As the record
reflects, they were not compil
ed as the review board’s deci
sion holds. The lists were
nothinimore than photocopies
with c anged dates. Indeed,
many of the lists included a
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common typographical error in
connection with the issues
listed. b’lrhti co'in‘:llgsion is in
escapable that Tri-State engag
ed in a deliberate and inten
tional attempt to create the im
pression that it had prepared
separate, independent records
of programming information
which would be relied upon by
the public to evaluate its per
formance. Indeed, the evidence
at hearing established that Tri-
State must have manufactured
certain annual lists subsequent
to their dates, due to the fact
that such lists would have
predated the commission’s
adoption of the re%uirement.
Speclficallx, although Tri-State
{)_resente issues/grograms
ists it claimed had been
;[)‘t;?pared from 1975 forward,
-State could not possibly
have contemporaneously
prepared such lists. The com
mission’s first announcement
that such lists would be re
quired did not occur until six
years later in 1981 . . . Neither
the review board nor the
presiding officer below even ad
dressed this important fact,
despite Safe’s request to do so.
‘‘Regarding the issues
which apgear on each of the
lists, Tri-State claimed that no
changes had occurred since the
issues were first “‘ascertained”
in 1978, some 12 years before
hearing. Tri-State later admit
ted, however, that the issues it
had originally ascertained at
that time were in fact different
from the issues it included on
its issues/programs lists. Thus,
the rationalization that
Fhotocopies were appropriate
or the “issues” portion of the
lists must be rejected. The
review board, however, blindly
accepted Tri-State’s claim that
the issues had not changed,
thereby justifying its use of
photocopies as contem
poraneous lists of issues pur
portedly receiving programm-
Ing treatment.
NOT CONFIRMED
““The record also establish
ed that Tri-State had not in
fact confirmed that the pro
grams portion of its lists ac
tually addressed the issues
claimed to have received pro
gramming treatment. Tri-State
attempted to show that it had
done so by referring to the list
of public affairs programs
maintained by a Tri-State
employee which included the
subject matter of each pro
gram. The fact is that Tri-State
never documented the subject
matter of its public affairs pro
‘grams. Further, the fact is that
Tri-State did not<in fact con
firm the accurat(:f' of thg lists.
It merely stuffed its public in
spection file with photocopies
whose dates had been altered
in order to a[ipear to have been
independently ?repa.red. The
individual who claimed to have
prepared the lists admitted
that she had done nothing to
determine whether the issues
listed had been even mention
ed by the programs identified
on Tri-State’s issu'es/pr(:frams
lists and reviewed no
documents when making the
hotocopies. Tri-State’s owner
Eept no record of any issue ac
tually discussed by such pro
grams either.
“Tri-State’s allusion that it
had addressed its identified
issues was shattered when Safe
obtained copies of the lists and
forced Tri-§tate to admit that
at least two programs had been
included in Tri-State’s lists as
broadcast through Dec. 31,
1988, even though one pro
gram had not been broadcast
since Aug. 29, 1987 and
another since March 26, 1985.
Although never, admitted by
Tri-State or mentioned by the
residing officer or the review
Eo‘ard,"t evidence adduced at
hearing established that public
service announcements
devoted to disabled veterans,
while claimed to have been
broadcast on the lists, were in
fact not broadcast from June,
1987 through Decembe’i‘. 1988.
LISTS |
“As set forth 'in its
‘Deregulation Orders,’ both the
commission and the United
States Court of Ap%ga for the
District of Columbia Circuit
have emphasizéd the
significance of a 'licensee’s
issues/programs /lists in
assisting the public to evaluate
a station's performance. The
review board’s holding that
Tri-State's conduct complied
with the commigsion’s rules
reduces a licenseg’s obligation
to describe broadcast program
mmaf which actually addresses
local issues to a meaningless,
cgnical joke. Tri-State had no
idea whether the proifams it
listed ever mentioned the never
changing issues as represented
on the lists, much less whether
the programs constituted the
station’s most significant
treatment thereof. It did not
even bother to deletz‘rrograms
no longer distributed by their
producers. Safe respectfully
submits that the Commission’s
Eolicy riguiring broadcast
icensees t 0 describe in writing
how specific issues receive pro-
Fram treatment would be total
g undermined by the Review
oard’s view that WGTA's
public inspection file was pro
perly maintained. ..
“Even if everK one of the
firograms listed by Tri-State
ad on one occasion.in the past
mentioned, indeed discussed in
the great detail, the issues
liste(f,r Tri-State’s photocopies
represent to the general pu%lic
and the commission that the
programs discussed the same
issues day after day, quarter
after guarter, year after year,
until Safe complained in this
proceeding . . .
, “MEANINGLESS”
“Tri-State did not stop at
simfily stuffing its public file
wit meaninfiless and er
roneous issues proErams lists
for review by the general
public. It submitted such lists
under oath to the commission
as proof of the matters
asserted therein. Moreover,
even after Safe had literally
challenged the accuracy of the
lists in opposing Tri-State’s
showing of superior past
broadcast record, Tri-State
refused to admit the falsig of
its lists until Safe later filed its
motion to “enlarge issues
against Tri-State. Tri-State
was clearly obligated to admit
the facts long before it did so.
“Both before and after the
review board added the issues
against Tri-State, Tri-State
averred that an employee had
gre%ared the lists, and that Tri
tate’s owner, William Farrar,
had not been involved.
However, when Safe’s owner,
Terry Adams, obtained copies
of the lists from WGTA, that
same employee advised that
Farrar had Rrei;red the lists
and that she knew nothing
about them. During cross
examination, Farrar admitted
his continuing personal par
ticipation in the conduct at
issue, explaining that his
earlier testimony may not be
the whole truth. The review
board was clearly wrong in
describing the numerous incon
sistencies within Tri-State’s
testimony as, insignificant dif
ferences as to events surroun
ding Adams’ visit to WGTA to
inspect the public file. (Deci
sion at 19). Deception was
most certainly attempted by
Tri-State when seeking a com
parative rreference based upon
meaningless issues/programs
lists that were nothing short of
pure fiction as to their intend
ed purpose. . .
“Trion, the proposed com
munity of license in this pro
ceeding, and Summerville,
Georgia are not contiguous.
The community of Pennville
lies equidistant between them.
While Safe’s owner, Terry
Adams, resided in the com
munity of license from birth
until age 5 and from 1983
through 1987, for five (not four)
consecutive years, Tri-State’s
owner, Willlam Farrar, has
neither lived inside Trion nor
belonged to a civic or communi
ty organization based or head
quartered within Trion. The on
ly civic activities for which Tri
gtate supplied dates or dura
tion of participation were
membership on the county
board of e£lcation from 1953
through 1959, membershig on
the county library board from
1974 through 1986 and &Mi
dent of the countly chamber of
commerce from 1981 through
1982.
COMMUNITY
“Safe established that its
owner, Terry Adams, has ac
tively participated in numerous
community affairs and civic ac
tivities both inside Trion and
surrounding areas since 1985,
and for 10 years from 1973
through 1983. Safe provided
detailed information as to ac
tivities, dates, and durations of
Mr. Adams’ civic activities, not
simply that Adams held
membershl;fs in organizations.
The record thus establishes
that Safe is entitled to a com
parative preference for the past
residence/civic activities of
Terry Adams . . . Safe is entitl
ed to a comparative preference
for past residence and par-
t.iclisation in civic affairs, which
could not be overcome by the
longer duration of Tri-State’s
broadcast experience, the least
significant qualitative enhance
ment factor considered by the
Commission.
““The review board literally
overlooked Safe’s own showing
of os'?erior %ast broadcast
rec filed Feb. 22, 1989.
Therein, Safe demonstrated its
devotion of unusual attention
to the public’s needs and in
terests, and its sEeclal sen
sitivity to the public’s chang
ing needs through broadcast
programming. Programs, pro
gram series, and an
nouncements were described
which re;:?onded to issues
ascertained by Safe. Safe com
pared its efforts to other sta
tions and demonstrated the
commonalit;tr gs o_wnixifhip and
management during the opera
tion ?)%eSafe’s WSAF, licensed
to Trion, and Safe’s proposed
. R
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FM station. Safe’s threshold
showing should therefore have
beengranted...’l‘herresxdmg' i
officer's denial of Safe's
threshold showinfi because its
issues/;irograms ists did not
themselves contain duration,
frequency, type, or source of
Programming had no basis in
aw or fact.
“The review board commit
ted reversible error in finding
that Tri-State propergv main
tained its public file and did not
attempt to deceive the Com
mission or the public regarding
the means by which it
documented its issue respon
sive programming. Moreover,
on a comparative basis, Safe
should have been preferred
even without considering
Safe’s superior past broadcast
record. I‘r)xeany event, Safe's
sué)erior past broadcast record
establishes it as the clearly
superior applicant in this pro
ceeding...”
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Alan Ratliff, left, accepts con%ratulations
from Monk Groover, head of the North
Georgia Cruisers, on Ratliff's wife,
Melanie, winning a storage building. It
The Summerville News, Thursday, January 2, 1992
Wins Storage Building
was given away by the classic and anti
que car club as part of its annual fund
raising effort. (Staff Photo By Earl
McConnell).
9-A