File No. EB-02-IH-0109
NAL/Acct. No. 200332080010
Facility ID #9618
Carl E. Person,
In the Matter of
Infinity Broadcasting Operations, Inc.
Licensee of Station WKRK-FM
Carl E. Person hereby declares, pursuant to the penalties of perjury under 28 U.S.C. Section 1746, that the following statements are true and correct:
1. I am the Petitioner to intervene in the above-captioned proceeding by the Commission against Infinity Broadcasting Operations, Inc. ("Infinity"), am fully familiar with the facts stated herein, and make this declaration in support of my Petition to Intervene.
2. For more than 10 years I have been, and continue to be, a regular member of the radio audience for the Howard Stern Show (the "Stern Show"), listening to the Stern Show as broadcast in New York City on WXRK 92.3 FM and, from time to time during the past several years, while driving out of town on various radio stations such as WPXC 102.9 FM (Cape Cod and Martha's Vineyard MA), WCCC 106.9 FM and 1290 AM (Hartford CT), WYSP 94.1 FM (Philadelphia PA, WIZN 106.7 FM (Burlington VT, and NH), KITS 105.3 FM (San Francisco CA), WWKX 106.3 FM or 102.7 FM (Providence RI), WJSE 102.7 FM (Atlantic City NJ).
3. I have made use of the Stern Show as a forum for a litigation client of mine, a Catholic priest, to have his criticism of and litigation against his church aired to the public (in which he complained years ago about rampant homosexuality in various parts of the religious organization).
4. Petitioner has been an advertiser from time to time on radio stations in New York and elsewhere throughout the United States. A copy of the text of a 29-minute radio infomercial of the Petitioner can be seen at www.lawmall.com/rpa/infomer6.html, and wants to have iconoclastic radio and television shows remain on the air as possible outlets for Petitioner's infomercial advertising. Petitioner is currently working on an infomercial projects involving Petitioner's minority views.
5. The Petitioner desires to have the Stern Show remain on the air and for others who have things to say which may be contrary to the political, social or religious viewpoints of persons who align themselves with the "religious right" in the United States or the current Bush Administration, whether the Petitioner agrees with views expressed on the Stern Show.
6. Petitioner seeks to intervene in and obtain a rehearing or reconsideration as to the above-captioned proceedings pursuant to which the Commission (i) issued a Forfeiture Order on December 8, 2003 assessing a monetary forfeiture against Infinity in the (maximum) amount of $27,500, and (ii) on March 5, 2004 released its Memorandum Opinion and Order denying Infinity's petition for reconsideration.
7. The Commission's order upholding the $27,500 fine assessed against Infinity was accompanied by a non-written provision, constituting Commission policy, that Infinity is not permitted to appeal from the Commission's orders to an appropriate United States Court of Appeals without retaliatory actions involving (i) refusal by the Commission to consider or approve the purchase by or sale to Infinity of any broadcast licenses; (ii) refusal by the Commission to renew any Infinity broadcast licenses which are up for renewal as long as the $27,500 fine has not been paid and the matter closed; and (iii) the grave risk that the Commission will cancel or refuse to renew one or more of Infinity's licenses during or after any appeal by Infinity, regardless of the outcome of any appeal.
8. By reason of such non-written component of the Commission's actions and orders against Infinity, Infinity has decided, or may decide, that to protect its multi-billion dollar investment in broadcast licenses it has to take the Howard Stern Show off the air and not risk the heavy threatened fines (currently and with pending legislative increases) and retaliatory activities by the Commission if Infinity lost before the Commission and had an appeal as its only recourse.
9. The FCC has 1,975 employees (or FTE's, "full-time equivalents) and an annual budget of about $250 million (4/9/01 FCC release for fiscal year 2002), whereas Viacom, Inc., owner of Infinity Broadcasting, has 122,770 employees (12/31/02) and a market capitalization of $65 billion (3/04/04); and Clear Channel Communications, Inc. has 29,500 employees (2/28/02) and a market capitalization of $28 billion (3/04/04). The Stern Show, it should be noted, has rewer than 25 employees (some of which are unpaid interns) and a net worth of Howard Stern estimated to be about $10,000,000 to $20,000,000.
10. The Howard Stern Show currently is being aired by Infinity and until recently was being aired by Clear Channel. Both broadcasters have the resources to afford any available judicial relief for the activities of the FCC, but the above-described policy of the FCC precludes Clear Channel and Viacom from pursuing judicial relief. The FCC policy which precludes seeking judicial relief is the FCC's threats to license holders (including Clear Channel and Infinity) that if they try to obtain any judicial relief (through appeal to the appropriate United States Court of Appeals) the FCC will refuse, and actually has refused, to permit Clear Channel and Infinity to (i) sell any of their broadcast licenses, (ii) buy any broadcast licenses from other licensees; and (iii) renew existing licenses when their usual 5-year licensing period has expired. Because of this, there is a substantial threat that if the above-captioned broadcasters appeal from any obscenity fines they could lose some or all of their broadcast licenses. Because of this prior restraint caused by the Commission's policy, the broadcasters have no business choice but to stop airing the Howard Stern Show, and to take such action without any appeal to the federal courts.
11. Because of this FCC Policy, of requiring or threatening license forfeiture as a price for attempting to obtain judicial review of the FCC actions, including fines and other penalties, the FCC has made it financially impossible for its licensees, mainly its largest and publicly-held licensees such as Clear Channel and Viacom (Infinity), from obtaining any judicial review of FCC-imposed fines.
12. This FCC Policy enables the FCC to set its own rules without any oversight by the appellate courts, and requires licensed broadcasters to do whatever the FCC wants for fear of license forfeiture and loss of ten of billions of dollar in market value for each of Clear Channel and Viacom (Infinity).
13. In the prior proceedings, Infinity has argued that the obscenity standards are unconstitutional, an argument which Petitioner makes as well. Also, the Commission is unconstitutionally selective in determining that Infinity has violated the obscenity standards because (i) during the period from 10:00 p.m. to 6:00 a.m. anything is permitted and there are no enforcement proceedings to stop broadcasts of the type charged to The Howard Stern Show; and (ii) other broadcasters are airing shows of a similar nature (e.g., the Jerry Springer Show during the protected hours of 6:00 a.m. to 10:00 p.m.) without any fines.
14. Also, the Petitioner wants to raise the issue of the Commission's use of its powers to support the reelection of President Bush and to stop the airing of material which the "religious right" finds offensive. A significant part of the constituency of President Bush comes from the religious right.
15. The Petitioner and other members of the public are deprived of their 1st Amendment constitutional rights as a result, the right to have the nation's airwaves containing lawful broadcasts, not just the broadcasts which one or more FCC Commissioners restrict broadcasters to through the illegal, unconstitutional FCC Policy described above.
16. The FCC appears to have no standards for obscenity which the FCC applies across the board to radio and television broadcasters, so that the FCC's current threat to levy fines against Infinity as to its broadcast of one or more Stern Shows has been selective, arbitrary and discriminatory. Other radio or television broadcasts have been as "obscene" and without redeeming value as the Stern Show broadcasts are (falsely) alleged to be.
17. Without any clear obscenity standards consistently and fairly applied, the FCC is currently forcing broadcasters (large and small) to overreact by cutting back on programming content to ensure that whatever standards the FCC creates on its ad hoc basis are not violated by the licensees. This operates as a prior restraint on the 1st Amendment right to freedom of speech for the licensees as well as the Petitioner's corresponding right as a member of the radio audience to hear programs without such prior restraint.
18. An important fact which has been overlooked (perhaps deliberately) by the Commission and above-captioned licensees is that by reason of the Commission's and nation's policy of permitting the acquisition of increasing numbers of broadcast stations into the hands of fewer and fewer persons the Commission has increasingly obtained power over its licensees for various reasons including: (i) the Commission can adversely affect 1,200 licenses with a single NAL, in contrast to issuing and proceeding with 1,200 NAL's if at the other extreme each station was independently owned; (ii) the single owner of 1,200 stations is far more vulnerable to doing whatever the Commission demands because of the prospect of loss of 1,200 broadcast licenses simultaneously, on a single decision, wholly unlike the situation of each of 1,200 separate license holders, with little likelihood of being singled out among a total of 12,000 or so licensed radio stations; (iii) the appointment by President Bush on 1/22/01 of Michael K. Powell as Chairman of the Commission, a supposedly independent regulating body, 2 days after Commissioner Powell's father, Colin Powell, was sworn in as Secretary of State (on 1/20/01), and became 4th in line of succession to the Presidency, 3 USC <185> 19), to harness the awsome power of the Commission in favor of the "religious right" constituency of President Bush, especially during the 1-year period preceeding the national elections; and (iv) the caving in of Clear Channel to the Commission's demands immediately after Stern became critical on his show of President Bush, by taking the Stern Show off the air without any reason other than Stern's public shift away from supporting President Bush, and the dictatorial, political pressure by the politically-motivated Commission to force Clear Channel and Infinity to take the Stern Show off the air or risk imposition of tens of thousands of $500,000 NAL's and fines and loss of many or all of their broadcast licenses.
19. The details about the FCC's unwritten policy as described above became known to the Petitioner on Friday, March 5, 2004, listening to the Howard Stern Show. Also, details about the levying of fines against Clear Channel and Infinity and their impact on the Howard Stern Show were also revealed during the same show. Previously, this material information was not known to the Petitioner and has resulted in Petitioner's filing of the within Petition.
20. The Petitioner asks, in light of the above, that he be permitted to intervene in the above-captioned FCC proceeding, and obtain a rehearing or reconsideration of the Commission's Orders, to enable the Petitioner to maintain any appeals as an aggrieved party from any subsequent adverse decisions by the Commission relating to the above-captioned proceeding.
21. Also, Petitioner requests that he be added as an Interested Party to any Commission issuances of NAL's or commencement of any other proceedings involving the Howard Stern Show.
Executed this 8th day of March, 2004, at New York, New York.