Federal Communications Commission
Washington, D.C. 20554
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
The Petitioner, as a member of the public and a member of the radio audience for the Howard Stern Show, submits his Petition to Intervene and for a Rehearing in the proceedings by the Federal Communications Commission (the "Commission") to impose fines or other penalties against licensee Infinity Broadcasting Operations, Inc. (owned by Viacom, Inc.) ("Infinity") because of specific instances of alleged obscene or other offensive statements during the airing of one or more shows on Infinity's radio stations.
The Petitioner was not aware of these proceedings for assessing a fine against Infinity until the past few days (i.e., Friday, 3/5/04) and, accordingly, had no opportunity to intervene earlier to participate in the proceedings prior to this Petition to Intervene. Furthermore, Petitioner was never aware of the Commission's unwritten policy as described in the accompanying declaration in support, until Friday, March 5, 2004, when such policy was disclosed on the Howard Stern Show.
The supporting declaration sets forth the factual basis on which Petitioner bases his Petition, and instead of trying to summarize the declaration the reader is respectfully referred to the entire declaration.
PETITIONER HAS STANDING AS AN INTERESTED PERSON AND
A RIGHT TO INTERVENE AND SEEK RELIEF UNDER
47 CFR SECTION 1.1 AND AS AN AGGRIEVED PARTY UNDER 28 U.S.C SECTION 2344
The Petitioner has standing to contest the unwritten rules and decisions of the Commission which are being used to take current shows off the air without any recourse to the courts. As explained in the supporting declaration, the licensees themselves are unable to seek judicial review of the Commission's decisions for fear, created by the Commission, that the licensees will lose their valuable licenses if they try to appeal from the decisions of the Commission, at least in the area of obscenity and indecency. As a result, 3 persons in the United States (namely, 3 Commissioners, including Michael K. Powell), have taken for themselves the power to impose their own political standards of morality on broadcasters and prevent Petitioner and other members of the radio audience from having these standards and applications reviewed by the judiciary, unless Petitioner's standing is recognized, and his Petition granted. The deliberate disabling of licensees from seeking judicial review requires that someone else seek judicial review of these issues.
The Petitioner has a right to intervene, seek a rehearing and then (if appropriate) appeal as an "aggrieved party" under 28 U.S.C. Section 2344. In re Chicago, Milwaukee, St. Paul and Pacific Railroad Co., 799 F.2d 317, 123 (1986, CA7, Ill), cert. den. 481 U.S. 1068, 95 L.Ed.2d 869, 107 S.Ct. 2460 (1997).
THE ACTIVITIES OF THE COMMISSION AMOUNT TO EXTORTION
OF THE COMMISSION'S LICENSEES FOR A PURELY POLITICAL
PURPOSE, OF CURRYING FAVOR OF THE RELIGIOUS RIGHT
AND IMPROVING THE CHANCES OF PRESIDENT BUSH
TO WIN REELECTION IN THE FORTHCOMING ELECTIONS
The Commission has been requiring its licensees, including the above-captioned licensee, not to appeal from Commission Orders assessing fines against the licensees or have all licensing activities stopped by the Commission, including license renewals, and license sales and purchases, with a severe threat of loss of all licensees for disobedience of this unwritten policy.
Such activities, although perhaps not known to those persons who are performing such activities, amount to unlawful extortion and in the context of a public agency, which makes the activity more reprehensible. Extortion exists when unlawful demands are made "under color of official right". Evans v. United States, 504 U.S. 255, 258, 1992 U.S. LEXIS 3122, * (1992) ("The coercive nature of the official office provides all the inducement necessary."). The Third Circuit in United States v. Jannotti, 673 F.2d 578, 625, 1982 U.S. App. LEXIS 21883, *155 (3rd. Cir. 1982) (in banc), cert. denied, 457 U.S. 1106, 73 L. Ed. 2d 1315, 102 S. Ct. 2906 (1982) stated: "In Rindone, a municipal inspector extorted payments from an electrical contractor by threatening to prosecute code violations and thus force the contractor out of business." The Hobbs Act, 18 U.S.C.S. Section 1951, making extortion as defined illegal, expanded the commonlaw definition of extortion to prohibit additional coercive activities. See Scheidler v. NOW, Inc., 537 U.S. 393 (2003).
Also, it is a violation of the 1st, 5th and 14th Amendment rights of the broadcasters and Petitioner for these important issues of obscenity and indecency to be prevented from being heard by the nation's judiciary. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 199 (1971) (upholding a direct constitutional right to sue federal officials for a 4th Amendment infringement).
Threats by the FCC to take away license interests (by purchase and sale prohibitions and denial of license renewals) as to licensees attempting to obtain judicial review from an FCC order are violative of the 1st Amendment rights of the licensees, the Petitioner and the public generally. The 1st Amendment guarantees licensees (i) the right to freedom of speech and (ii) access to the courts - to obtain relief from oppressive or other illegal actions of the FCC, with the same constitutional right for Petitioner and the public generally to have the courts determine whether the FCC is acting lawfully, instead of letting 3 out of 5 Commissioners make that determination for everyone involved. The activities of the FTC have prevented Clear Channel, Infinity, other broadcasters, the Petitioner, and the public generally from enjoying their 1st Amendment rights, as described above. See Lindsey v. Normet, 405 U.S. 56; 92 S. Ct. 862; 31 L. Ed. 2d 36; 1972 U.S. LEXIS 91 (unlawful for state to have law doubling a judgment if an appeal fails); also, see Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71; 108 S. Ct. 1645, 1654; 100 L. Ed. 2d 62; 1988 U.S. LEXIS 2204 (1988) which distinguished the Lindsey decision.
THE COMMISSION IS FOLLOWING RULES WHICH
IT HAS NOT DULY PROMULGATED, AND WHICH COULD
NOT BE UPHELD EVEN IF FORMALLY ADOPTED
The illegal policy of the Commission, as described, constitutes a non-promulgated rule which is unlawful for the Commission to follow. Furthermore, because the non-published rule is not even in writing, the licensed broadcasters are unable to know how to comply with the rule without adopting a policy of "overkill", which means that to avoid trouble with the Commission the nation's largest broadcasters are now taking shows off the air without regard to their right to air such shows, but merely because 3 members of the Commission claim that it is in the best interests of the country for shows they do not like to be taken off the air, or have the broadcasters' licenses be taken away by the same 3 Commissioners. These Commissioners and the Commission have no authority to act as they are doing and an extraordinary writ of "Quo Warranto" (similar to impeachment) may be appropriate to test their right to remain in office. Nixon and Watergate was miniscule (no, smaller than miniscule) compared to what the Commission is now doing. As to Writs of Quo Warranto see Whitson v. Agnew, 414 U.S. 815; 94 S. Ct. 154; 38 L. Ed. 2d 127; 1973 U.S. LEXIS 281 (1973) (writ of Quo Warranto denied); Pulliam v. Allen, 466 U.S. 522, 532-533; 104 S. Ct. 1970; 80 l. Ed. 2d 565; 1984 U.S. LEXIS 75 (1984) (history of prerogative writs including the writ of Quo Warranto); Kissinger v. Sweigert, 334 U.S. 817; 68 S. Ct. 1077; 92 L. Ed. 1747; 1948 U.S. LEXIS 2180 (1948) (writ of Quo Warranto granted). The Commission is not only an administrative agency, it includes an administrative judicial system, and Quo Warranto should apply. The purpose of the writ of Quo Warranto is to determine "whether the exercise of the power in question contravenes any laws of the State". First National Bank v. Fellows, 244 U.S. 416, 37 S. Ct. 734, 61 L. Ed. 1233; 1917 U.S. LEXIS 1654 (1917).
The Petitioner asks, in light of the above, that he be permitted to intervene and seek a rehearing in each of the FCC actions and proceedings described above, and as to any fines or penalties which have already been voted, agreed to, paid or otherwise ordered or imposed, the Petitioner also requests a rehearing, to enable the FCC to take the foregoing into account when reconsidering its actions, and to permit the Petitioner to maintain any appeals as an aggrieved party from any subsequent adverse decisions by the FCC.
For the reasons set forth above, it is respectfully submitted that the Petitioner's Petition to Intervene and for a Rehearing be granted in its entirety.
/s/ CARL E. PERSON
Carl E. Person, Petitioner-Proposed Intervenor
325 W. 45th Street - Suite 201
New York NY 10036-3803