Exactly three weeks ago, Entercom EVP/General Counsel Andrew Sutor received a letter from Robert L. Baker, the Policy Division Assistant Chief in the FCC’s Media Bureau, in regard to an investigation of the political programming practices at three of its stations in the Buffalo-Niagara Falls market.
As a result, all 7 stations in the cluster are now under the Political Programming Staff’s microscope, with the following question in front of regional manager Mark Hannon and SVP/Market Manager Greg Ried: Did Entercom fail to timely upload information to its online political files about requests for the purchase of broadcast time “made by or on behalf of a legally qualified candidate for public office?”
If so, were these willful and repeated violations?
It’s a matter that has been under scrutiny for several weeks. On February 26, Entercom’s top legal counsel responded to a first letter of inquiry on the matter. What was the reaction from Baker and his team?
While no decision was reached in the investigation, Entercom’s February 26 response led the Political Programming Staff to expand its investigation in two ways.
First, the investigation is moving beyond Sports WGR-AM 550, News/Talk WBEN-AM and Hot AC WTSS-FM “Star 102.5” to include Alternative WLKK-FM 104.7/107.7, Urban Oldies WWWK-AM 1400/FM 107.3, ESPN Radio affiliate WWKB-AM 1520, and CHR/Pop WKSE-FM 98.5 “Kiss.”
Did each of these seven Entercom stations fail to timely upload information to the online political files about each request they received “which communicated a message relating to any political matter of national importance?”
Entercom has until Thursday, April 4, to provide documents and information as requested in an attachment sent along with the letter from Baker.
The inquiries cover the period of January 1, 2018 to the present. Entercom is asked to state whether WGR, WBEN and/or WTSS “received any request for the purchase of broadcast time in calendar year 2018 that communicated a message relating to any political matter of national importance, including a legally qualified candidate, an election to Federal office, or a national legislative issue of public importance.”
These are non-candidate “issue” ads.
Did these stations air any such advertisement without charge? The FCC wants to know.
The newly expanded inquiry asks the same of WKSE, WWKB, WWWS, or WLKK, while also looking into whether any or all of the four stations received any request for the purchase of broadcast time that was made by or on behalf of any legally qualified candidate for public office running in a primary or general election in calendar year 2018.
Entercom at 11pm Tuesday responded to RBR+TVBR‘s request for comment by stating, “We are working directly with the FCC on this matter. We will not be commenting further.”
The same statement was issued to other news organizations including the Buffalo News, which broke the story in Monday’s edition.
The Media Division’s Policy Division Political Programming Staff began its inquiry with a January 28 letter sent to Sutor in which an alleged former U.S. Congressional candidate, Jackie Drost, was billed for more than the “lowest unit rate” on Entercom’s Buffalo stations during the 2018 election cycle.
Drost’s complaint led the Staff to examine the political files for WTSS, WBEN and WGR.
“That examination revealed that Entercom apparently had not uploaded any records of
requests for the purchase of broadcast time by or on behalf of legally qualified candidates running in Federal, State or local elections in 2018,” Baker said in his first letter to Sutor.
Who is Jackie Drost? That’s exactly what everyone is asking — namely Entercom EVP/General Counel Sutor, local Market Manager Ried and LOI response signee Laura Berman, Entercom’s senior counsel.
“As explained below, Licensee has no record of Ms. Drost purchasing any time on the Stations,” Berman wrote in her response. “Moreover, Licensee has found no record that Ms. Drost was a candidate for United States Congress during the 2018 election.”
While that is intriguing, Entercom/Buffalo’s problems go way beyond the mystery whistle-blower, and if Drost was indeed a candidate seeking Federal office in Western New York in 2018.
Berman provided the FCC with information regarding advertisements on WGR for three political campaigns: Pat Burke for State Assembly, Friends of [Assemblyman] Ray Walter and Nate McMurray for Congress.
Documentation was not uploaded, Entercom admits, to WGR’s public file until January 2019 “due to an inadvertent oversight.” This “inadvertent oversight” extended to WBEN, which ran a greater number of political ads than WGR, and music-focused WTSS, which aired ads for the Walter and McMurray campaigns.
Berman then goes on the defense for Entercom, noting how it “takes its public file obligation very seriously.” She explains, “There are procedures in place to ensure that employees understand, and comply with, the public file requirement.”
For example, as part of the stations’ transition to the online public file in March 2018, Entercom required employees with public file responsibilities to watch an online public file training that the company conducted and the three stations were reminded of the documents required to be uploaded to the online file, including political file documents.
The response from the Media Bureau shows that is perhaps inconsequential, given the absence of the political files across all 7 Entercom/Buffalo stations.
Then, there is the lowest unit charge claim, which Entercom insists it is not in violation of (section 31 S(b) of the Communications Act) as Drost was not a candidate.
According to the Buffalo News, McMurray received an “anonymous note” with information suggesting Entercom/Buffalo overcharged his campaign for ads running on its stations during the 2018 election campaign. McMurray is the Town Supervisor of Grand Island, N.Y., a residential community sandwiched between Buffalo and Niagara Falls. He lost his campaign to Rep. Chris Collins. On the day before Election Day 2018, campaigns for McMurray and Collins each paid $110 for :60 ads that aired between 4pm and 9pm on WBEN, documents provided by Entercom to the FCC show.
Meanwhile, the newspaper sent an email inquiry to the account used to file the FCC complaint. It didn’t receive a reply.
Is there a Jackie Drost? Maybe. Maybe not. What’s clear is that the FCC couldn’t verify the complaint because WBEN, WGR and WTSS had no records of any kind for political advertisements in 2018 uploaded until January — possibly in reaction to the Letter of Inquiry.
THE POTENTIAL PENALTY
One of the most frequent inquiries received by RBR+TVBR featured columnist and Alternative FCC Compliance Certification Inspector Ken Benner is the following question, “What are the most frequent violations found during the inspections you conduct?”
For those who have attended his compliance seminars, a 28-page summary of his program is handed out.
“These figures are reasonably good estimates of the total percentages of items found in serious or questionable compliance and thus obviously are not intended to total 100%,” he says by providing the following finding — public file violations are the most common for broadcast media companies.
In fact, some 35% of total compliance issues for Benner include missing issue and program reports, STL and RPU licenses, political documentation, updated ownership reports, updated edition of Public and Broadcasting, EEO filings, and such.
But, is the FCC making it “much more complicated” for radio and TV stations to air political ads? Scott Flick, a partner at Pillsbury Winthrop Shaw Pittman LLP, suggested in January 2017 that this is the case.
In an RBR+TVBR column, Flick noted how the FCC “rushed out” an order admonishing stations for alleged recordkeeping violations which originated from complaints sitting at the FCC since mid-2014. Why the haste? “Perhaps because it also ‘clarifies’ that the admittedly vague rules on political ad recordkeeping require much more expansive political file records than most anyone has previously suggested (at least anyone who wasn’t trying to use the records for other than their intended purpose; for example, as a proxy for overall political ad expenditures).”
Much of what Flick wrote about focused on what the political file must contain and that as of January 2017 the Commission would seek to second-guess whether a political ad disclosure lists every “political matter of national importance” mentioned in the ad.
But, there were missing files at Entercom/Buffalo.
A check made payable to the FCC, or perhaps to the U.S. Treasury if a Consent Decree emerges, will likely resolve the stations’ transgressions. How costly would it be to Entercom?
Consider this: In July 2013, an AM-FM combo serving a rural area to the northeast of Grand Junction, Colo., told the Commission that issues and programs lists for the two stations were inadvertently transported to a co-owned station in the same market.
At the time of an FCC inspection, they should each have had 27 of the issues/programs lists in their files; each was 20 short.
That wasn’t acceptable, and KRGS-AM in Rifle, Colo., and KRVG-FM in Glenwood Springs, Colo., under licensee Western Slope Communications, received a $25,000 Notice of Apparent Liability for Forfeiture. This reflects a $12,500 fine for each station, nudged up from $10,000.
Given Entercom’s possible transgressions in Western New York, a financial penalty of between $70,000 and $87,500 could be coming soon.
For now, it’s up to the Media Bureau to decide how to move forward — and if Drost’s campaign indeed existed, putting Entercom further at risk of forfeiture payments.