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Naughty Stepchild

Alleged FCC violations could imperil the future of WAIF Community Radio

By Margo Pierce · May 3rd, 2006 · News
Naughty Stepchild
Woodrow J. Hinton

Naughty Stepchild


The closest most people get to being on the radio is calling a talk show or making a request for a song. A community radio station that gives locals an opportunity to program their own shows is a rare and valuable asset to any city.

Cincinnati is fortunate to have such a gem in WAIF (88.3 FM). It's a unique asset with an eclectic mix of programming that can't be found anywhere else in Cincinnati. Latin American, Italian and Greek programs are mixed in with "gumbo music," comedy, alternative healing and local bands. WAIF gives residents access to broadcasting in a way that no other station does.

A commercial radio station exercises complete control over its programming and as a for-profit corporation, does so in a way that will result in attracting listeners that advertisers will pay to reach by purchasing commercials. Beyond having paid staff and the resources to purchase and maintain state-of-the-art equipment, commercial stations have different FCC reporting requirements.

Non-commercial stations have to compete by providing unique or better programming. They're typically supported by members and underwriters who pay to be associated with a program or the station and can be non-profit.

Like any non-profit organization entirely operated by volunteers, WAIF has its weaknesses. Operating on a tight budget -- WAIF reported net assets of $164,000 in 2004 -- the station competes with larger commercial stations for listeners. In recent months WAIF has been riven by discord among its board of trustees, programmers and members who believe the station has drifted from its mission.

But most serious is a series of alleged violations of regulations promulgated by the Federal Communications Commission (FCC), which issues -- and can revoke -- WAIF's license. The station that describes itself as "What radio is meant to be" doesn't appear to be living up to its statutory obligations.

Having only limited access to station documents and volunteer leaders, CityBeat was able to identify at least seven alleged FCC violations. While the severity of these violations varies, what's most disturbing is the apparent lack of regard station management has for the rules and potential consequences for noncompliance.

In the most recent report available, for 2002, the FCC reported it had "taken over $28 million dollars in enforcement actions during this past year and we will continue to take strong actions that enhance enforcement, protect consumers, and promote public safety."

Knowing the rules
For those responsible for the operation of a community radio station, the burden of stewardship is great. In addition to housing and maintaining the expensive equipment necessary to access the airwaves, the leadership must oversee every aspect of the station's operation, ensuring public access.

That includes everything from emptying trashcans and replacing copier paper to programming and FCC compliance. At WAIF, all of those people are volunteers.

A purely regulatory body, the FCC doesn't provide training for people who operate radio stations, according to a prominent communications attorney based in North Carolina who wishes to remain nameless because of his ties to the industry in Ohio. He says the era of deregulation and reduction in government spending on regulatory compliance makes the FCC's role painfully simple.

"What would happen is, if someone files a complaint with the FCC, the FCC would investigate," he says. "They're complaint-driven primarily in their investigative approach. ... Radio is a regulated industry. There are a lot of government rules that must be complied with, and it doesn't shock me at all that there's a radio station in Cincinnati that's not perfectly in compliance with the rules. If you've got a rule violation, you've got a rule violation. You've got to deal with it. I deal with them every day, so it's kind of routine to me. What we say is, 'Anybody who gets cheap legal advice or cheap engineering advice who's in a regulated business has a fool for a client.' That's just the way it is."

Failure to stay informed and vigilant about compliance is the responsibility of the radio station's governing body. In the case of WAIF, that's the board of trustees. With annual elections by the membership, as dictated by the bylaws of The Real Stepchild Radio of Cincinnati Inc. -- the non-profit organization that holds WAIF's FCC license -- the makeup of the board can change every year.

The WAIF board doesn't have a committee to follow FCC regulations; that's the responsibility of the station's chief operator, according to former board member Al Ringshauser. Because the board chair, station manager and treasurer declined requests for interviews, CityBeat is unable to provide the name of that person.

"They don't really have any knowledge of what it takes to comply with FCC regulations," Ringshauser says.

He ought to know, because he completed an FCC electronics course while in the Air Force, making him one of the few volunteers with FCC training. He served a pair of two-year terms as a board member, acting at different times as secretary and treasurer.

In addition to being a WAIF programmer for 12 years, Ringshauser volunteered to manage WAIF's FCC programmer and transmitter logs for 12 years. He received the station's Outstanding Volunteer of the Year award in 1998.

Despite his extensive knowledge of the station's operations, Ringshauser is no longer affiliated with WAIF. The reason for his departure -- the board suspended his show in February -- is unclear, even to him.

Unclear office hours
Established in 1934, the FCC regulates interstate and international communications by radio, television, wire, satellite and cable (visit www.fcc.gov). The agency issues different kinds of licenses for radio stations, with different regulations for each type of license. The FCC provides a summary of its regulations on its Web site.

Title 47 is the main section that governs FM radio station operations. Chapter 1 outlines what the FCC expects a radio station to do when it holds a license. Violations can result in fines or even the loss of a license, depending on the severity of the violation.

Like many government agencies charged with oversight of business concerns, the FCC has experienced a change in its duties and budget cuts. Instead of initiating investigations as it used to, the FCC Enforcement Bureau, responsible for enforcement of the Communications Act, mostly responds to complaints, according to the communications attorney.

Section 74.3 summarizes "inspections of stations" and states, "The logs and records required by this part for the particular class or type of station must be made available upon request to representatives of the FCC" (47.74.3(a)). If an inspector had walked into WAIF March 10, she would find the station unable to comply.

The first problem is that the inspector wouldn't know when anyone is at the station. WAIF doesn't post regular office hours on its front door or its Web site.

From 8 a.m.-3 p.m. weekdays during the school year, the Great Oaks Joint Vocational School District uses the frequency 88.3 FM to broadcast as WJVS, so there aren't typically any volunteers at WAIF during those hours, according Ringshauser. The rest of the time programmers are in the station on the air; but without regular business hours, it's impossible to know when the station manager or anyone else will be at the 1434 E. McMillan Ave. studio.

This is problematic for the public, should anyone wish to stop in the station to access any number of documents or information that WAIF is required to make available. All radio stations are required to maintain a public inspection file that is available to the public during business hours. This is not simply a technicality, but goes to the heart of the public purpose of radio stations.

"The idea is radio stations are outlets for local self-expression in a community," the North Carolina attorney says. "One of the ways localism is promoted by the FCC is regulations that require stations to make materials and information available to the public so they can interact with the licensees of the radio stations."

The FCC Public and Broadcasting booklet (www.fcc.gov/mb/audio/decdoc/public_and_broadcasting.html), published in 1999, says, "Stations have an obligation to serve their local community's needs and interests and to comply with certain programming and other rules. Because we do not monitor a station's programming, viewers and listeners are a vital source of information about the programming and possible rule violations. The documents in each station's public inspection file have information about the station that can assist the public in this important role."

A recent ruling indicates how important this is to the FCC. On Feb. 13 it fined Lebanon Educational Broadcasting Foundation in Lebanon, Mo., operator of KTTK, $4,000 for "willful violation of the public inspection file requirements (and) failure to make available for inspection all required items in the station's public inspection file during regular business hours."

The rules specify a list of required documents for public inspection -- several of which were missing from WAIF's file when CityBeat inspected it March 10. The FCC considers the required documents essential, but in practical terms the level of importance for each varies. The issues/programs list (73.353(e)(8)) is "...the station's most significant treatment of community issues during the preceding three-month period." This rule dates back to a time when there was only one radio station serving an entire community, says the communications attorney.

"The issues/programs list is a quarterly expression of the most important information broadcast on a station, concerning controversial issues of public importance or matters of interest to the local area," he says. "That rule is probably violated quite frequently. If you told me that there was a station that didn't have its issues/programs list properly prepared, I'd say, 'Uh-huh, and...'

"I would tell you that there's probably no radio station in American that's in compliance with all rules at all times.

It's not uncommon for there to be a minor violation of rules."

The fact that this happens a lot doesn't matter to the FCC. In 2004 WPWC of Dumfries-Triangle, Va. was hit with a $14,000 fine for "failure to place the most recent ownership report and list of programs that have provided WPWC's most significant treatment of community issues in the public inspection file." Noting that the station "willfully and repeatedly" violated these rules, the FCC said the fine wasn't excessive, as the station argued.

Missing documents
On March 10 two CityBeat reporters went to WAIF and asked for its public inspection file.

FCC rules require the station to make the public inspection file available to the public (73.3527(a)) during normal business hours (73.3527(c)(1)) and provide photocopies of any document requested (73.3527(c)(1)). Anyone who asks for documents in person, via mail or telephone (73.3527(c)(2)(i)) may be charged a "reasonable cost" (73.3527(c)(1)) for copies and the station may require payment in advance (73.3527(c)(1)). However, the station must pay any postage (73.3527(c)(2)(i)) and The Public and Broadcasting booklet is supposed to be free of charge (73.3527(c)(2)(ii)).

When CityBeat visited the station to view the file at 4:30 p.m. March 10, one of the programmers on-site, Victoria Straughn, said she didn't have access to the file because it was in a locked room she couldn't access. Straughn told the reporters to call the station manager, Howard Riley, to find out when he would be available to show the file.

Driving out of the station's parking lot, the reporters were hailed by Donald Shabazz, chair of the board of trustees, who said the station's office hours ended at 4 p.m., but he would make the file available.

The file was a stack of disorganized papers in a large manila folder, so it took a while to figure out what was there and what was missing. All the while, Shabazz peppered the reporters with questions, comments and criticisms about a previous article that ran in CityBeat. He demanded to know why the file was being requested. The reporters said, "Research."

When the reporters asked permission to make copies of certain documents, Shabazz refused to grant permission for use of the WAIF copier. The CityBeat staffers reminded him that the FCC required the station to make copies available. Shabazz said he would make the copies but, because WAIF is an all-volunteer station, it might take a while.

CityBeat sent a follow-up letter March 13, providing the same list of documents requested and citing the FCC regulation stating that the request had to be filled within seven days. When CityBeat returned to the station seven days later, on March 17, the station manager, Riley, was onsite and told the reporters that he had no idea what they were talking about.

Four days later, March 21, a letter arrived at CityBeat, dated March 16, in an envelope postmarked March 18, stating that a $50 deposit was required before the copies would be made. After delivery of a cashier's check, the copies were available seven days later.

The packet didn't include the requested receipt but did include 25 documents not requested. The charge of $50, divided by 193 pages, equaled 26 cents per page. The list of donors was missing. CityBeat wrote WAIF April 4, detailing the missing documents and requesting a receipt and a refund in the form of a cashier's check for $29.20 for the documents copied but not requested. The letter was addressed and sent to Shabazz.

A letter dated April 10 was the only response.

"Please be advised that I am in receipt of your recent letters addressed to me, and that the board of trustees has decided to forward your letters to our attorney for his review," Shabazz wrote. "Once we have received his response, we will act in accordance to his advice."

The refund hasn't been received as of this printing, more than a month later.

When the North Carolina communications attorney heard about this scenario, he was surprised and said the FCC would probably be interested in the lack of cooperation providing access to the public file.

"What I would do if I had that is I'd say, 'I know I live in a regulated industry, I'm going to have a conversation with this reporter and try to find a way to turn this into a positive thing about this station,' " the attorney said.

So far CityBeat has not received the following documents it requested, in spite of the fact that FCC regulations require them to be in the public inspection file:

Donor list

Complete 2004 public announcement materials (logs and announcement copy)

Complete issues and programs list

A visit to WVXU/WGUC, operated by Cincinnati Public Radio Inc., under similar circumstances -- stopping in at 4:45 p.m. on a Wednesday when their offices close at 5 -- was a different experience. After being told the station manager was gone for a day, another staffer was found to escort CityBeat to a room with two file cabinets.

Each station had a separate drawer with individual hanging folders for each kind of material required for the public inspection file. The documents were clearly marked, well organized and current.

Relying on Radio Shack
Of greater importance are announcements the FCC requires before and after a station files for license renewal. The FCC requires stations (73.3540(h)) "within 7 days of the last day of the broadcast of the required publication announcements, place in its public inspection file a statement clarifying compliance with Sec. 73.850, along with the dates and times of the pre-filing and post-filing notices were broadcast and the text thereof."

The requirements for local public notice of filing of license applications (73.3580(7)(c)(1)) are specific down to the dates, times, frequency and content of these announcements and apply to all forms of media requesting an FCC license.

WAIF provides the public with a copy of the programmers' log from April 16 through May 16, 2004 -- the period before its application for license renewal was submitted. What the log reveals is that two pre-filing announcements were missed, and there's no evidence of any post-filing announcements. Nor is the text of either announcement provided.

Ringshauser says that, in addition to informing the board of the need for the announcements and that two were missed, he drafted the pre- and post-filing announcements for WAIF. He also says that no post-filing announcements were ever made. The documentation, or lack thereof, in the WAIF public inspection file supports his observations.

Another apparent failure of WAIF is maintaining an operational Emergency Alert System (EAS). Formerly known as the Emergency Broadcast System, used to warn citizens of air raids by enemy attackers, the EAS is primarily used for weather alerts such as tornado warnings and severe thunderstorm watches.

All licensed stations are supposed to maintain an Emergency Alert System. Title 47 Telecommunications, subpart 11.52 says, "All broadcast stations must install and operate, during their hours of operation, equipment capable of receiving and decoding, either automatically or manually, the EAS header codes, emergency messages and EOM codes."

WAIF's Emergency Alert System isn't operational, according to Ringshauser. When the board refused requests for an interview, CityBeat was unable to confirm or deny this charge. Long-time programmer Bill Polak agreed to verify the status of the EAS.

"The room where the receivers are supposedly stored is locked," he says.

At the time Polak was the programmer on duty but didn't have a key, despite WAIF's rule that the programmer on site is "responsible for the station; this includes the security of the station, its contents and anyone in the station."

What he did find didn't seem to comply with FCC regulations.

"There's a Radio Shack weather radio plugged into the wall," Polak says. "If there's an emergency alert, I don't know that this radio would sound this alarm. I assume that it would, but I don't know that it would."

The FCC didn't respond to repeated requests for information that would verify whether or not WAIF is in compliance with this or any other FCC regulation. CityBeat was directed to file a complaint that would result in an investigation. This is the response for all questions regarding licensees.

However, in 2005 the FCC made two rulings regarding EAS with hefty fines attached. KTCM of Kingman, Kan. was fined $10,000 for "failure to maintain operational ... EAS equipment and failure to maintain a complete public inspection file." FCC cited KNSX of Missouri for "failure to maintain ... EAS equipment in operational readiness, failure to maintain a main studio in compliance with Rules and failure to maintain a complete public inspection file." The total due was $18,000.

Illegal ad?
As a non-commercial station, WAIF holds an educational FM broadcast license that limits the kind of advertising it can do. Part of the station's disclosure requirements includes informing the public of the identity of its donors. These are companies or individuals that give WAIF money in exchange for on-air mentions or announcements.

Unlike a member's thank you given during a membership drive, these contributions are specifically earmarked as underwriting and donor acknowledgments.

Section 73.3533(e)(9) of the public inspection file requires "lists of donors supporting specific programs." When asked for this list, Board Chair Shabazz refused.

"We're a membership organization," he said during a telephone interview. "On the advice of counsel, we will not provide a list."

The communications attorney says the point of the donor list is to ensure transparency.

"The theory is that the public should know by whom they're being persuaded, and that should be transparent," he says. "That, I can tell you is fundamental, rock-hard policy."

The money trail matters, especially when a distinction is made between commercial and non-commercial stations.

"Technically, non-commercial radio stations aren't supposed to run commercials," the attorney says. "They can run donor acknowledgements that aren't specific and don't use value-laden adjectives to describe products. Which is why, on a public radio station, you'd see, 'This program brought to you by XYZ Corporation,' and they can't say, 'Purveyor of fine petroleum products.' They are allowed to say whatever their slogan is. If their slogan is 'Energy for the world,' then they could say, 'Energy for the world.' But they couldn't say, 'The best energy for the world.' "

Recognizing that public broadcast stations struggle to balance their non-commercial service with financial limitations, the FCC changed its policy to allow a broader definition of donor acknowledegment on the air.

"In March 1984, we relaxed our non-commercial policy to allow public broadcasters to expand or 'enhance' the scope of donor and underwriter acknowledgements to include (1) logograms or slogans which identify and do not promote, (2) location information, (3) value neutral descriptions of a product line or service and (4) brand and trade names and product or service listings." (www.fcc.gov/mb/audio/nature.html)

Again, WAIF's failure to remain current with FCC regulations became apparent with the announcements made on-air in February for Speedy Refund. A copy of the announcement titled "Speedy Refund Radio Ad 2006," obtained by CityBeat, includes the dates the announcement was made and language that clearly violates the admonition to avoid promotion and use neutral descriptions.

"The choice is obvious, there's absolutely NO reason to go anywhere else," the spot said.

A quick look at the FCC Web site would have made it clear to WAIF that the announcement violates some of the most obvious examples provided: "Several examples of announcements that would clearly violate the rule may be helpful: A. Announcements containing price information are not permissible: '7.7 percent interest rate available now.' "

In apparent violation, WAIF's Speedy Refund spot said, "Speedy Refund saves you 20 percent or more on your tax preparation fees and you get so much more!"

The FCC gives another example: "B. Announcements containing a call to action are not permissible: 'Try product X next time you buy oil.' "

In apparent violation, WAIF's Speedy Refund spot said, "Speedy Refund has 14 convenient office locations in the Greater Cincinnati Area. Just call 591-1040 for the location nearest to you."

This kind of violation doesn't surprise the communications attorney.

"What you find a lot these days with non-commercial radio stations is there's a bunch of young people running this stuff that don't have any idea what the rules are," he says. "And so they just violate them all the time. Then, when somebody calls them on it, they get hammered -- and then they learn, and it's a very expensive lesson."

Another difficult lesson can come in the form of self-reporting. During the license renewal process the FCC will ask a station if it's been compliant with all of the rules and regulations for the previous seven years. This self-reporting is taken seriously by the FCC, according to the communications attorney.

"Anybody who's trying to be a decent steward of an asset or a resource would try to take pains to solve their problems," he says.

It all comes down to the management of the station. Using television as an example, the attorney says the right kind of stewardship, including FCC compliance, can make an outlet successful in its market space and revenue generation.

"One company can own 20 television stations -- let's call them X Corporation," he says. "And another company we'll call Y Corporation can own 20 television stations. They're all in the big markets around the country. One network and its stations make $40 million, and the other loses $20 million. The difference is management and programming judgment. The hard assets are exactly the same. It's all about creativity, ideas, vision and what you put up there and about management of people and the creative folks who create the product."

Purging the critics
In a recent interview, Shabazz characterized having a program on WAIF as a "privilege" and not a right. The same can be said of the FCC license granted to The Real Stepchild Radio of Cincinnati Inc.

A recent letter sent to WAIF membership makes it clear that the board of trustees is looking outside its ranks to place blame for real or imagined threats to the station. Referring to the installation of security cameras in the programming booths, Shabazz thanked supporters for recognizing that the cameras are about security, not spying, then launched into a conspiracy theory about challenges to the cameras (see "Watching at WAIF," issue of Feb. 22-28).

"I am sad to say that we have a handful of programmers and non-programmers who are attempting to use this false issue to portray WAIF as (sic) its BOT (Board of Trustees) in a false light," Shabazz wrote. "Some of these individuals who call themselves 'Bloggers' and secret E-Groups, appear to have one goal in mind, and that is to damage or destroy WAIF. Their first tactic is to try and undermine your trust in the BOT by spending (sic) lies, innuendos, mis-information, and making threats on their so-called Blog-Sites within their E-Groups.

"Considering these Bloggers and Secret E-Mailers all out effort to put 'WAIF's internal business in the streets' show their true intentions and motivations. My question is, are these individuals the 'agents' of another organization whose mission and purpose is to destroy WAIF?

"Or are they so blind that they can not see the ultimate consequences of their actions and 'smear tactics' will only result in damaging or harming WAIF. I hope that you agree with me, that the way to bring about any needed changes is not by trying to 'destroy our beloved station.' Therefore I am asking all of you who love WAIF to support the BOT in our efforts to protect WAIF from those who are trying to destroy it."

The board has removed or is in the process of revoking several people's WAIF memberships in apparent retaliation for their connection to this and a previous story in CityBeat. Jason Haap, a local blogger (www.cincinnatibeacon.com) who calls himself "the Dean of Cincinnati," told CityBeat his membership might be revoked at a special meeting at 7 p.m. Wednesday.

"I thought you may find some of their allegations against me interesting," Haap wrote in an e-mail. "#3. You have attempted to foment strife between WAIF and Cincinnati CityBeat magazine (sic). #5. You have willfully, and with malice, disseminated false, misleading, and slanderous allegations of others, which has exposed WAIF, its staff, and its board of trustees, to public opprobrium. #6. You have attempted to undermine the trust and confidence of WAIF programmers, membership, and supporters in WAIF's staff, and board of trustees by portraying said individuals in a negative and false light and by exposing WAIF to public ridicule."

Derrick Blassingame didn't have his membership revoked; however, the 19-year-old was identified as a threat to WAIF after the first CityBeat story appeared. Blassingame's name didn't appear in that article. In a letter to the editor, not published, he presented the explanation he was given for his removal.

"Most recently I was removed from the board of trustees for alleged, 'conduct unbecoming a member,' " he says.

Among the charges, Blassingame wrote, was "tipping the CityBeat article and providing your paper with information."

"On March 1, 2006 I was 'removed from the Board, my program terminated, and banned from the station,' " Blassingame wrote.

In February the board revoked Ringshauser's membership, canceled his show and banned him from the station. A letter from the board secretary informed Ringshauser his punishment was for contacting the WAIF attorney. Years earlier the non-profit entity running WAIF lost its original name -- Stepchild Radio -- when it failed to submit renewal documents with Ohio Secretary of State. The board was upset about the loss and changed to The Real Stepchild Radio of Cincinnati Inc.

When Ringshauser learned the original name would be available again, he initiated the paperwork necessary to reclaim the name for WAIF in 2004. He says that when he presented the paperwork to the board with his desire to turn the name back over to them, they accused him of trying to steal the name. So Rinsgshauser contacted the attorney to make sure all of the paperwork was in order. He was told he did everything correctly.

How many other members and volunteers the board will remove is unknown. What is clear is that Shabazz is correct in his assessment that the board is responsible for protecting the station. Article 4 of the by-laws provides that authority.

What Shabazz neglects to note in his communications is that, as the holder of an FCC license, the board is also responsible for compliance with the regulations. If the FCC comes calling, it isn't going to wonder about who did what.

The people responsible for running the radio station and charged with maintaining FCC compliance are the board of trustees. Given the number of violations found by CityBeat in the records available to the public and the limited access we had to the station, it begs the question, what would the FCC find?

WAIF Responds

April 24, 2006

CityBeat
C/O Margo Pierce
811 Race St., Fifth Floor
Cincinnati, Ohio 45202

RE: Request for Interview

Dear Ms. Pierce

I am writing to inform you that Howard Riley, Mike Wood, and myself, have decided to decline you request for an interview for the following reasons.

First, you are well aware that the board of trustees (BOT) has retained legal counsel to represent WAIF in this matter with respect to CityBeat and its witch hunt against WAIF. Second, your attempt to circumvent our attorney by going around him, and posing your questions directly to us, rather than our legal counsel. Third, your failure to respond to, or answer questions our attorney posed to you in his letter dated April 5, 2006. Fourth, your false and preconceived notion that WAIF's Public File is not in compliance with FCC regulations. Fifth, personally speaking, CityBeat's failure to print my written response (enclosed herewith) to your one-sided, and defamatory article, "Watching at WAIF."

This letter is also to advise you, that the BOT and our legal counsel are going to scrutinize every word of any future article that you or CityBeat might write regarding WAIF or its BOT. And if we find a single libelous, false, or defamatory word, we will not hesitate to sue you and your employer for both actual and punitive damages. Finally, please address any future questions and comments to our attorney.

Dr. Donald A. Shabazz, JD, chairman
WAIF, Board of Trustees

CC: All Members, BOT
CityBeat Editor
Enclosure:

Editor's Note: CityBeat received no April 5 letter from an attorney for WAIF. This letter, like previous letters from Shabazz, didn't name the attorney. This letter contained no enclosure.

 
 
 
 

 

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