FCC Admonishes Cumulus for Violating Ex Parte Rules

RADIO ONLINE | Monday, September 10, 2018

FCC

The FCC has granted in part, and deny in part, the Petition for Order to Show Cause filed last May 24 by WKNG LLC, the licensee of Classic Hits WWGA-FM/Tallapoosa, GA. WKNG alleged that Cumulus, the licensee of FM translator W255CJ (99X), had violated the Commission's ex parte rules by improperly soliciting ex parte presentations. The agency found that Cumulus violated the ex parte rules and admonished it to avoid future violations, but otherwise denied the petition.

The alleged ex parte violation relates to an action by the Media Bureau ordering 99X to cease operation in response to WKNG's complaint that 99X caused interference to WWGA-FM on 98.9 MHz. WKNG asserted that Cumulus posted a notice on its website informing listeners of the Media Bureau's action. According to WKNG, the notice indicated that Cumulus was disputing the interference finding and that listeners "can help" by emailing the five FCC Commissioners and five of their legal advisors.

WKNG further indicated that the notice asked listeners to send a courtesy copy of their email to Cumulus to enable Cumulus to track the number of emails sent to the Commission. WKNG indicates that no comments resulting from the website posting were served on WKNG.

WKNG contends that Cumulus's conduct is similar to that found to violate the ex parte rules in Columbia Union College Broadcasting. In that case, CUCB, an FM broadcaster, asserted that Stu-Comm, a broadcaster on the same channel, had asked its listeners to complain to the Commission that the facilities specified in CUCB's license modification application caused interference to Stu-Comm's station. The Associate General Counsel found that Stu-Comm had violated the rules by soliciting public comments on CUCB's modification application (as well as a congressional letter) that were not served on CUCB.

Of crucial importance, the Associate General Counsel found that the listener comments did not fall within an exemption to ex parte restrictions for viewer/listener comments on pending broadcast applications, since Stu-Comm had solicited its own station's listeners and not the listeners of CUCB's station, which was the subject of the pending application being commented on. The Associate General Counsel admonished Stu-Comm for soliciting listener (and congressional) ex parte presentations but took no other action.

According to WKNG, an admonition here would be an insufficient sanction for Cumulus's conduct, and it urged that Cumulus's pending renewal application for 99X be dismissed. But, as WKNG pointed out, the facts of this case resemble those of the CUCB case, in which the violator received an admonition. The FCC saw no other reason to treat Cumulus differently, and it admonished it to comply with the ex parte rules, but ruled there was no basis for issuing an order to show cause why Cumulus's renewal application should not be dismissed.