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Petition to Deny Broadcast License of WTMJ - Journal Communications


Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554




In re renewal of broadcast license                              )
application                                                                  )
                                                                                   )
JOURNAL COMMUNICATIONS                                    )
                                                                                   )
                                                                                   )  
License of WTMJ-AM                                                  )
Facility  74098                                                             )
                                                                                   )                      
Milwaukee, WI                                                             )                                                
                                                                       
                                                                                   




PETITION TO DENY




                                                                       
                                                                                                                                        
MEDIA ACTION CENTER
Sue Wilson

Director 

                                                                        4354 Town Center Blvd #114-110
                                                                        El Dorado Hills, CA  95762
                                                                       




I.          JURISDICTION
            The Commission has personal jurisdiction over the applicants, and it has subject matter jurisdiction over the allegations in this Petition.
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This Petition contains “specific allegations of fact sufficient to show...that a grant of the application would be prima facie inconsistent with [the public interest, convenience and necessity].”  The allegations herein, except those of which official notice may be taken, are supported by the declarations under penalty of perjury of persons with knowledge of the facts alleged.
 .
            Appended hereto are the declarations under penalty of perjury from Ray Grosch and Randall Bryce, authorized members of MEDIA ACTION CENTER, identifying how they would be harmed by a grant of the Application.  Thus, MEDIA ACTION CENTER has administrative standing.             
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            This petition is timely and ripe for review, and it complies fully with the Commission’s rules governing pleadings, petitions to deny, and service of process.
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II.         SUMMARY
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The Media Action Center ("MAC") and local Milwaukee area residents and members of MAC Ray Grosch and Randall Bryce (declarations attached), oppose the renewal of the broadcast license of station WTMJ-AM  (“Station”) in Milwaukee, Wisconsin,  because existing management is failing to serve the public interest in the community, and is using the publicly owned airwaves with political intent which violates existing FCC rules.  Renewal of said license would detrimentally and irreparably harm the public.
 .
            Journal Communications' ("JC's") 50,000 watt WTMJ-AM in Milwaukee, Wisconsin, predominately airs "conservative" talk radio in this media market year round.  During the critical 60 day period prior to elections, Station is giving free airtime to supporters of one major political party to exclusively promote their candidates, but will not allow supporters of the other major political party any access to Station microphones unless they purchase airtime.   
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            Further, during the 60 days prior to elections, Station gives free airtime to supporters of one major political party to actively recruit volunteers for their candidates, but will not allow supporters of the other major political party access to the airwaves unless they pay for advertising time.  
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            Station's conduct violates existing FCC rules during campaign seasons. Station has been made aware of such rules by its own Wisconsin Association of Broadcasters, but still willfully violates them.   Further, Station's conduct violates the First Amendment rights of the community.    
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For these reasons, MAC believes the only appropriate course of action will be to deny the Station's application for license renewal.
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                                                            III.        PETITION TO DENY
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            Any traditional examination of broadcast regulation begins with the concept that the public “owns” the airwaves.  Since the public “owns” the airwaves, the public should have the right to say how this valuable resource will be used.  The Communications Act of 1934, as amended, 47 U.S.C §309(k), stipulates that a licensee (or prospective licensee) must operate in the public convenience, interest, or necessity.
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          Nowhere is the public interest more important than in the presentation of political viewpoints.  The public needs to have facts and diverse opinions to make informed decisions in the ballot box.
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            The Station broadcasts over 50,000 watts of power, and its local coverage area ranges from about 100 miles south, 150 miles north, and 90 miles east of the city limits of Milwaukee.  As such, communities throughout Southeastern Wisconsin are served and influenced by the Station.
 .
            The Station broadcasts twelve hours every day, Monday through Friday, of "Conservative" Talk Radio programming.  Of those, six daily hours are locally produced with hosts Charlie Sykes and Jeff Wagner.   These hosts talk up local Republican candidates like Rep. Paul Ryan, (whose 1st District  in Wisconsin lies within Station's local coverage,) Gov. Scott Walker, and others, while talking down any and all Democrats. 
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            Anecdotally, Democrats in Southeastern Wisconsin have been saying for years that local Republican candidates have an unfair advantage, as there are two giant 50,000 watt stations in Milwaukee which broadcast "Conservative" Talk, but due to concentration of radio ownership in the Milwaukee market, no stations which even allow "Progressive" talk to be heard, even in the weeks just prior to elections.  They said Republicans were bragging they were winning, all because of their friends in Conservative Talk Radio. 
  .         
The anecdotes were quantified during the May/June 2012 recall election of Gov. Scott Walker.  A news story about Republicans specifically crediting Station with their electoral victories appeared just days before the official campaign season began. 
From http://news.heartland.org/newspaper-article/2012/05/02/wisconsin-employers-expand-reach-local-talk-radios-free-market-message
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May 2, 2012:
Wisconsin Employers Expand Reach of Local Talk Radio’s Free-Market Message
An ad hoc group of Wisconsin business leaders and free-market activists is hoping to prevent the recall of Gov. Scott Walker (R) and other pro-business legislators by spreading Milwaukee and Madison conservative talk radio programs to other parts of the state.
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“If you look at southeast Wisconsin, where local conservative talk radio is heard, the area has turned very conservative,” said Orville Seymer of Citizens for Responsible Government, a Milwaukee-based political action group that is working on the effort. “Senator Ron Johnson publicly credits [local hosts] Charlie Sykes and Vicki McKenna with helping him to get elected. Scott Walker gives a lot of credit to Milwaukee and Madison conservative talk radio for his election both as Milwaukee county executive and as governor.”
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The anecdotes were further quantified by the MAC's "Scott Walker Recall Talk Radio Monitoring Project" commencing May 9th, 2012, the first day of the twenty-eight day recall campaign, and ending May 24th, the sixteenth day of the campaign season.   Throughout that period, monitors recorded and listened to the three Station Monday through Friday local programs, and timed how many minutes the host or guest was specifically promoting and/or bashing the two major party candidates.   Monitors continued to record shows throughout the June 5th election day, but did not time comments, instead listening only to verify the one-sided trend did continue.
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Monitors were trained to time only those remarks which specifically supported or bashed a candidate. 
Examples:  "Scott Walker is coming on the show, yey! My governor is a Jedi!" 
        "Tom Barrett is an idiot.  Tom Barrett is a racist."
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MAC did not find that Station's local programs used their entire six daily hours for such specific political support.  Station's programs were documented to have give about 80 minutes free airtime, daily Monday through Friday, during the campaign to Republican supporters to promote their agendas and preferred candidates.  When local supporters of Democrats repeatedly wrote Station within the FCC's seven day rule and asked Station for comparable time under the FCC's Quasi-equal opportunities rule (Zapple,)  Station did not grant the time, and wrote listeners they did not have to grant such time. 
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In monetary terms, Station gave one major political party (Republican) free air time valued between $16,000 and $36,000 every day, and virtually nothing to the opposing party (Democratic.)  In effect, Station is exclusively subsidizing Republican candidates in its area of license, contrary to its duty to serve the entire public interest during campaign periods, and it showing clear political intent in so doing.   The amount of free airtime given to supporters of the first Party is so great, there is not enough airtime available for sale for supporters of the other Party, even if they should choose to buy time.
Station is clearly subsidizing one party's candidates over the other, grossly violating the intent of Section 315 of the Communications Act, and its clarifying FCC rule, the Quasi-Equal Opportunities rule, otherwise known as the Zapple Doctrine.  
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IV.        VIOLATION OF QUASI-EQUAL OPPORTUNITIES RULE
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The Zapple Doctrine closely relates to Section 315 (a) of the Communications Act, which imposes Equal Opportunities for candidates on broadcast stations. 
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Section 315 [47 U.S.C. §315] Facilities for candidates for public office.
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"(a)    If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section.  No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate.  Appearance by a legally qualified candidate on any –
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(1)    bona fide newscast,
(2)    bona fide news interview,
(3)    bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4)    on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),
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shall not be deemed to be use of a broadcasting station within the meaning of this subsection.  Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance."
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               The Zapple Doctrine is the FCC rule based on public interest standards which 
 
requires broadcasters to provide comparable time, not just for candidates themselves, but to 
 
supporters of those candidates.  Also known as the quasi-equal opportunities rule, this applies only to 
 
supporters of major party candidates.  The FCC has interpreted Zapple to mean that if supporters of 
 
one political party receives paid or free time, supporters of the other political party must also receive 
 
paid or free time.   From a speech by former FCC Chairman William Kennard, 
( http://transition.fcc.gov/Speeches/Kennard/Statements/stwek809.txt )
 
          "In Nicholas Zapple, 23 FCC 2d 707 (1970), the Commission held that supporters of a candidate must be provided 
           equal opportunities if supporters of an opposing candidate were given or sold time on a station."
 
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STATION is, or should be, well aware of the Zapple rule requiring stations to provide

comparable time in the 60 days prior to an election.  Nor may it argue that the rule is no longer in

effect due to the abolition of the Fairness Doctrine.  Indeed, attorneys for STATION's own

Wisconsin's Broadcasters' Association, in its Political Manual, 2008, which was the guiding 

document during the Walker recall election, clearly delineated stations' Zapple responsibilities during 

the critical 60 days prior to campaigns: 
(http://www.gklaw.com/resources/documents/2008%20Political%20Broadcasting%20Manual.pdf )
 .          
"In addition to the equal opportunities rule, there is also a concept known as the 'Quasi-equal opportunities' doctrine. When a station sells time to supporters of one candidate to support that candidate or to criticize an opponent, the broadcaster must afford comparable time to supporters of the candidate's opponent.  Nicholas Zapple, 23 FCC 2d 707 (1970)  Commonly known as the 'Zapple Doctrine,' this requirement does not apply outside campaign periods or to appearances by a candidate's supporters that are exempt from the equal opportunity rule, such as those in news programming.
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The Zapple doctrine applies only to broadcasts concerning major party candidates -1st Fairness Report, 36 FCC 2d 40 (1972).  It does not require that free time be given to the opposing side when the first side paid for its broadcast time, nor is time sold to supporters under the Zapple doctrine subject to lowest unit charge requirements.  If the first side received free time, the Zapple doctrine requires that the other side also receive free time."
 .
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STATION, knowing full well that its public service obligations require it to provide comparable time to supporters of both political parties, intentionally and willfully defied both the FCC and the intent of Section 315.  In so doing, STATION is showing clear political intent during campaign seasons, a clear violation of FCC rules. 
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The intent of Section 315 is clear:  unless a radio or TV show is a "bonafide news" program, in the narrow period just preceding an election, equal opportunities for candidates must be afforded to candidates of both political parties.  STATION may not argue that its talk format programs qualify for the "bonafide news" exemption. 
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According to the FCC, programs must meet three tests to be considered "bonafide news."  The program must be regularly scheduled, producers must be in control of guests and content, and the program must be non-partisan, not supporting any candidates.
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Both of STATION's local talk programs meet the requirements of being regularly scheduled and having producers in control of guests and content.  The question remains whether the programs are non-partisan and not supporting candidates.  MAC monitoring showed that on this test, both programs failed. 
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Hosts and guests routinely identified themselves as supporters of Scott Walker and the GOP, they routinely urged listeners to vote for Walker and GOP candidates.   This continued even on Election Day itself, as documented by local writer James Rowen: 
( http://www.jsonline.com/blogs/purple-wisconsin/157244905.html#!page=2&pageSize=10&sort=newestfirst )
It's 11:45 a.m. on recall election day in Wisconsin, and it's already been a busy morning at the office for Wisconsin conservative talkers determined to drive up Scott Walker's vote total.
AM 620 WTMJ morning righty talker Charlie Sykes is now into his fourth straight hour of pro-Walker, anti-Barrett voter encouragement.
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Along with airing a live interview with Republican national committee chair Reince Priebus and conservative voter polling place testimonials, Sykes has managed to call Barrett a "crappy" Mayor. Sykes has also broadcast rumors of voting fraudsters on their way to Wisconsin by bus from Michigan and intimated that more ballot shenanigans will happen tonight in Milwaukee, Madison and Kenosha.
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!2:45 p.m. update - - And is now into this monotopic's fifth straight hour.
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When does WTMJ change its call letters to WGOP?
Every election day, conservative talk radio in Wisconsin gives Republican candidates a tremendous boost, but its value does not show up in any accounting of campaign support.
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Such deliberate misuse of the publicly owned airwaves and the public trust shows the character of STATION ownership and management is unfit for JC to continue to hold a license to broadcast over this frequency in Milwaukee.
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V.         VIOLATION OF FIRST AMENDMENT RIGHTS
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It is the belief of MEDIA ACTION CENTER that Station ownership radio personalities enjoy the same freedom of speech under the First Amendment which everyone else does. 
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            Broadcasting is unique in that scientifically, there are a limited number of frequencies in the air over which stations may broadcast.  Those physical airwaves are owned by the public; in essence, there is a public/  private partnership in broadcasting, where the people own the airwaves and broadcasters own the technical equipment necessary to transmit sound or video.  Broadcasters receive renewable licenses to use the peoples' frequencies – free of charge.  In return for the privilege of making great potential financial profits, all licensees agree to "serve the public interest, convenience, and necessity." 
 .
            It is the very scarcity of the airwaves which allows limited Government regulation of broadcasters.  As affirmed in Prometheus v FCC, 2011,
Deregulatory Petitioners ask us to overturn the scarcity doctrine. That doctrine establishes that - In light of [their] physical scarcity, Government allocation and regulation of broadcast frequencies are essential ... We continue to decline [Deregulatory Petitioners'] invitation to disregard precedent ... The abundance of non-broadcast media does not render the broadcast spectrum any less scarce. The Supreme Court's justification for the scarcity doctrine remains as true today as it was in 2004 --- indeed, in 1975 --- many more people would like to access the [broadcast spectrum] than can be accommodated.
We agree with the FCC that the rules do not violate the First Amendment because they are rationally related to substantial government interests in promoting competition and protecting viewpoint diversity.
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This highly unusual public/private partnership has resulted in two key decisions form the United States Supreme Court regarding First Amendment rights in the broadcasting industry.  Both are from Red Lion Broadcasting v. FCC, (1969) and remain the law of the land to this day.
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(a) The First Amendment is relevant to public broadcasting, but it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount.  
(b) The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others.
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The role of government in broadcasting is unique in that government must regulate the gatekeepers (license holders) to ensure that the First Amendment rights of the public are intact.  In radio, this may only be construed as ensuring members of both major political parties in the local community of service have comparable access to the microphones which broadcast into their own communities during campaign seasons. 
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STATION fails that test.  The gross imbalance of providing 80 minutes of free airtime daily to the GOP and none to the opposing party does not reflect the interest of the public which needs to hear varied voices in the public square of radio during campaign seasons.   The refusal of STATION to allow the supporters of the opposing party on the air is clearly private censorship, which the Supreme Court has deemed to violate the First Amendment rights of the community to be served.
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In effect, because an entire broad spectrum of political thought is not allowed access to the
radio microphones in the  community, the First Amendment rights of PETITIONERS and the majority
of the community are being violated.   
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Zapple Doctrine enhances First Amendment Rights of the People
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The Zapple Doctrine refers many times both to Section 315 (a) of the Communications Act, and to the application of the Fairness Doctrine. 
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The Fairness Doctrine, which required broadcasters to provide a reasonable opportunity for contrasting viewpoints on issues of importance, was abolished for practical purposes in 1987, and formally abolished in 2011.  It was unwieldy, difficult to enforce, and applied to all broadcast programs.  (Norman Lear, for example, was sued under the Fairness Doctrine because his fictional character "Maude" had an abortion on a TV program.  Opponents sued, saying the broadcaster must air a program where a character did not have an abortion.)  Broadcasters complained that the Fairness Doctrine chilled free speech.  The Commission ultimately decided that the Fairness Doctrine had the effect of reducing rather than enhancing speech, which they said did not serve the public interest as required by law, and abolished it.
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The Zapple Rule has never been abolished.  Unlike the Fairness Doctrine, Zapple does not impose blanket rules on stations 365 days a year concerning the discussion of issues or topics.  It merely, in the critical 60 days prior to an election, provides that supporters of both major political party candidates have a comparable opportunity to express their own freedom of speech on public airwaves which belong to all the people, therefore keeping with the intent of the Communications Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance, elements that remain the law today.   Zapple merely provides supporters of both major political parties access to the airwaves to make any attacks they wish during the course of campaigns, thereby enhancing speech.   Zapple guards against reducing free speech in the critical 60 day period before an election, keeping with the intent of Section 315 (a.) 
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The Personal Attack and Political Editorial rules are not now considered to not be in effect, although they were never formally repealed. The NAB and RTNDA sued to relinquish these rules, and asked the United States Court of Appeals for the D.C. Circuit to throw them out.  The court sent the rules back to the FCC, giving the agency a chance to justify their existence. The FCC responded by suspending the rules for 60 days to gather new information.  The court said the FCC had many opportunities over years to gather more facts and develop a legal justification for the rules.  So the court threw the rules but because the FCC took too long to act to justify them  - but not because they were found to be unconstitutional. 
 .
The Personal Attack rule dealt specifically with broadcasters to give notice and free response time to individuals or groups whose "honesty, character or integrity" was attacked in a broadcast.  Statements made by legally qualified candidates or their spokespersons during the course of a political campaign were exempted, as were bona fide news programs, which is precisely the intent of Section 315.  The Personal Attack rule, like the Fairness Doctrine, was applicable year round, and dealt with narrow statements which could be challenged, thereby chilling free speech.  
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The Political Editorial Rule required broadcasters endorsing or opposing a political candidate in an editorial to notify and give free rebuttal time to that candidate's political rival. Broadcasters said they were discouraged from airing editorials concerning political races, again chilling free speech.  Broadcasters argued this rule prevented station ownership from exercising its free speech right to editorialize. 
          .
Zapple does not prevent stations from editorializing.  If Station management goes on the air promoting or opposing a candidate, saying "these are the views of this station," we do not argue that their station is in violation.  Station may argue that anytime one of their hosts go on the air, they are also representing the views of the station. We challenge this assertion.  Station management does not typically know what their hosts will say on the air, so how can it sanction every candidate promotion made by a host? In addition, guests and callers clearly cannot represent station viewpoints, as they are not employed by the stations. 
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In short, the Zapple Doctrine differs greatly from the Fairness Doctrine and the Personal Attack Rule and the Political Editorial rules.  Those reasonably can be argued to restrict free speech.  In contrast, Zapple seeks to enhance free speech, and guards against reducing it, in the critical 60 day period before an election. 
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Zapple honors the intent of Section 315 (a), and is especially relevant in this modern day of media consolidation, where a few licensees may dominate the community's airwaves, as is the case in the Milwaukee market.
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 "Bonafide news" Exemptions Not Applicable
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The intent of Section 315 is clear:  unless a radio or TV show is a "bonafide news" program, in the narrow period just preceding an election, equal opportunities for candidates must be afforded to candidates of both political parties. 
 .
According to the FCC, programs must meet three tests to be considered "bonafide news."  The program must be regularly scheduled, producers must be in control of guests and content, and the program must be non-partisan, not supporting any candidates.
 .
All programs meet the requirements of being regularly scheduled and having producers in control of guests and content.  The question remains whether the programs are non-partisan and not supporting candidates.  The monitoring showed that on this test, all programs failed, some more spectacularly than others. 
As to whether the shows were non-partisan and not being used in support of any candidates, MAC has identified many examples of partisanship on all three programs. 
 .
In addition to the actual number of minutes provided to supporters of GOP candidates, the number of guests invited on the three programs were exclusively tilted toward the GOP side.   Hosts and guests routinely identify themselves as supporters of Scott Walker and the GOP, and they specifically urge listeners to vote for Walker and GOP candidates. 
 .
            JC's STATION is clearly willfully denying a major segment of the community its First Amendment rights to exercise free speech over the publicly owned airwaves during campaigns.  There can be no greater violation of the public trust.
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VI.  INSUFFICIENT CHARACTER TO HOLD LICENSE
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Research has shown that Governor Scott Walker routinely provides talking points for STATION talker Charlie Sykes to repeat over WTMJ's air.  While this may not violate rules in normal circumstances, during the 60 days prior to elections, this clearly violates FCC rules and the public trust.  Examples of such coordination between STATION and the GOP governor are shown here:   http://bdgrdemocracy.wordpress.com/2012/08/28/scott-walker-is-controlling-the-message-literally/
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            While we do not know whether WTMJ specifically coordinated with Scott Walker's office for talking points in the 60 days prior to the recall election, it is clear that, given the evidence, real persons in the community cannot trust the character of station ownership and management to fairly operate in the entire public interest during critical election periods.
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STATION is showing clear political intent by providing one major political party free airtime, but denying access to the other political party.   This violates the public trust, and is grounds for denying the station's license.  Clearly, the character of WTMJ station management is such that it can no longer be trusted to operate in the public interest within the greater Milwaukee radio market.
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CONCLUSION AND REQUEST TO DENY
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On May 24, 2012 MAC filed a formal complaint over this abuse of the publicly owned airwaves with the Political Division of the FCC.  Despite the urgent political nature of the complaint, the FCC has not yet responded.  
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Full details of the monitoring study and results may be found in said complaint in reference to this Petition to Deny and at http://www.mediaactioncenter.net . 
        .
By denying supporters of Democrats any access to STATION's microphones during campaign seasons while promoting exclusively Republicans, JC's Station is willfully defying FCC rules, while denying the fair presentation of political viewpoints, arguably the stations most important obligation.   
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This harms the local community by denying the rights of alternative political voices their First Amendment rights to free speech by denying them access to the microphones on the publicly owned airwaves of Milwaukee.
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The renewal of this license would result in the continued domination of one political voice in the public square of radio during campaign seasons. 
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For all of these reasons, the petition to renew the license of WTMJ- AM currently held by Journal Communications should be denied.
                                                                        .
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 .Respectfully submitted,
                                                                .        
                                                                        Sue Wilson
                                                                        MEDIA ACTION CENTER
                                                                        4354 Town Center Blvd  #114-110
                                                                        El Dorado Hills, CA  95762
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