Before the.doc by zhaonedx


									                                       Before the


                               Washington, D.C. 20554

In re Application of                       )
KGAN Licensee, LLC                                         ) BRCT-20050930ALF
For renewal of KGAN-TV, Cedar Rapids, Iowa )

                                                                          20051223 1100
                         PETITION TO DENY RENEWAL

       We couldn't hire people with the kind of experience that was necessary to cover
       news because Sinclair would not pay them. The morale . . . was terrible. . . .
       [T]he kind of information being disseminated to the public was . . . embarrassing.
       I, as a trained journalist, could not in good faith and good conscience work for a
       company like that. . . .

       Commissioners, please, please, please pay attention because I worry, if this
       situation continues, what kind of information is going to be disseminated and how
       little of it there will be.

              -- Amy Johnson Boyle, former KGAN-TV anchor (excerpt from public
              presentation at October 5, 2005, “Town Meeting,” Iowa City, Iowa)1

  While she stands by her testimony, Ms. Boyle is not a member of Iowans for Better
Local Television, is not otherwise a petitioner, does not endorse this petition, did not
encourage it or participate in any way in its preparation, has not prepared the excerpts
from her statement used herein, and takes no position on the renewal of license of her
former employer, KGAN-TV. For Ms. Boyle’s impeccable credentials and experience as
a journalist, and a fuller excerpt from her October 5, 2005, statement, see Part II
(“KGAN-TV Does Not Serve the Public Interest”), subsection I. (“SBG’s business model
does not serve the public interest”), below. A complete transcript of the Town Meeting is
available as Appendix B: Exhibits (“Transcript of October 5, 2005, Town Meeting”) and
online as Free Press, "Town Meeting on the Future of Media" (Iowa City, Iowa, October
5, 2005), (last
visited December 9, 2005).

                                  Table of Contents

Summary [4]

Petitioners Have Standing [7]

KGAN-TV’s Violations [9]

       I. KGAN-TV has Committed Sufficient Serious Violations of the Commission’s
       Rules and Regulations to Constitute a Pattern of Abuse [9]

              A. SBG appears to have lied to the FCC [9]

              B. SBG violates the Commission’s ownership rules [11]

              C. KGAN-TV did not comply with the Commission’s DTV regulations

              D. KGAN-TV has failed to comply with the standards of Congress and the
              Commission regarding children’s programming [18]

                      1. KGAN-TV has failed to meet programming minimums [19]
                      2. KGAN-TV exceeds advertising maximums [21]
                      3. KGAN-TV’s programming fails not only the three hours weekly
                      standard but the “somewhat less” standard as well [22]
                      4. KGAN-TV does not supply children’s programming information
                      5. KGAN-TV’s children’s programming serves neither the needs
                      of the community nor those of its children [25]

              E. KGAN-TV’s public inspection file is deficient [28]

              F. KGAN-TV has broadcast indecent material [32]

       II. KGAN-TV Does Not Serve the Public Interest [36]

              A. KGAN-TV’s serious rules violations and pattern of abuse do not serve
              the public interest [36]

              B. KGAN-TV has failed to provide its viewing public with the minimal
              information about local public policy issues, challenges and opportunities
              that informed citizens need to maintain their democracy [40]

              C. KGAN-TV has an adverse impact on elected and other public officials

       D. SBG contributed to the loss of local news and the broken pledge to the
       citizens and television viewers in Dubuque, Iowa [51]

       E. KGAN-TV’s signal is not received by many in the “viewing area” [53]

       F. Safety of the viewing public [54]

       G. SBG provides virtually no community interaction and actually prevents
       local staff from interacting with the community [55]

       H. The lack of viewpoint balance [58]

       I. SBG’s business model does not serve the public interest [60]

       J. Amount of paid programming [65]

       K. General viewer comments [65]

III. Character Issues [66]

Conclusion: KGAN-TV’s License Renewal Should be Denied [69]

Certificate of Service [71]


         KGAN-TV, a CBS affiliate, operates on Channel 2 in Cedar Rapids, Iowa. The

licensee is KGAN-TV Licensee, LLC, a subsidiary of Sinclair Broadcast Group (SBG) in

Baltimore, Maryland.

         Iowans for Better Local Television (described in the next section) is filing this

Petition to Deny the renewal of KGAN-TV’s license because of the numerous categories

of FCC rules the station has violated, and promises to the FCC and its local viewers it has

broken, as well the numerous ways in which it has failed to perform in accordance with

the general “public interest” standard. 2 Indeed, the broad array and numerous examples

of the reasons why this license should not be renewed make any “summary” very difficult

indeed. The Table of Contents will provide some indication of the range of those


         The station’s joint operating agreement with KFXA-TV, Cedar Rapids, has

created SBG’s de facto ownership and operation of two stations in this market in

violation of FCC regulations. It has also deprived the stations’ viewers of the competition

and diversity of programming those regulations were designed to create.

         The Commission has actually had to admonish the station for its repeated failures

to get its DTV up and running.

         SBG may have lied to the Commission with regard to another of its stations in the

market, KDSM-TV in Des Moines. After promising the Commission it would never share

staff between them, thereby obtaining a waiver of the FCC’s rule prohibiting the common

    47 U.S.C. §§ 309(a) and (k) (2000).

ownership, it broke the promise and started broadcasting the same “local news” over both


        The station doesn’t provide the required quantity, quality and diversity of

children’s programming the law requires. And when it does, much of it is program length

commercials – along with Budweiser beer ads just before the children’s show Lazy Town.

        KGAN-TV devotes virtually no time to in-depth coverage (documentaries or

discussion programs) regarding major local issues. The mere three to six minutes of

actual local news in its “local news” programming is scandalous – but even that contains

little information of local consequence.

        Needless to say, its community relations are consistent: invited to a “Town

Meeting on the Future of Media” (attended by 500 other media and members of the

public), the station sent no one. Shockingly, it responded similarly to a well attended

meeting – deliberately held in Cedar Rapids – that included some of the most

distinguished elected public officials from every level of state and local government.

        Its business model of increasing profits notwithstanding declining revenues is

achieved through staff layoffs and joint operating agreements that, if its license is

renewed, will leave Iowa with poorer programming service from SGB than what would

be provided by almost any other American broadcaster.

        If KGAN-TV admits to these failings, and if this was a court proceeding, a

summary judgment would be warranted. Given the FCC’s procedure, clearly a hearing is

called for.

         If KGAN-TV wishes to challenge Petitioners’ assertions, that will clearly trigger

the requirement that when there are such questions the Commission “shall formally

designate the application for hearing . . .” (emphasis supplied).3

         There are three standards for renewal set forth in Section 309(k)(1).4 Petitioners

contend KGAN-TV has violated each of them. Therefore, they request the Commission

hold a Section 309(k)(2)5 hearing. Alternatively, if the Commission is unwilling to deny

the renewal, Petitioners request it issue a conditional or short-term renewal.6

  “If . . . a substantial and material question of fact is presented . . . it [the Commission]
shall formally designate the application for hearing . . ..” (emphasis supplied). 47 U.S.C.
§ 309(e) (2000). (This section applies because KGAN-TV broadcasts a single digital
signal. Insofar as KGAN-TV broadcasts an analog signal the identical provisions of
Section 309(d) apply.)
  “(1) Standards for renewal
If the licensee of a broadcast station submits an application to the Commission for
renewal of such license, the Commission shall grant the application if it finds, with
respect to that station, during the preceding term of its license--
         (A) the station has served the public interest, convenience, and necessity;
         (B) there have been no serious violations by the licensee of this chapter or the
         rules and regulations of the Commission; and
         (C) there have been no other violations by the licensee of this chapter or the rules
         and regulations of the Commission which, taken together, would constitute a
         pattern of abuse.
(2) Consequence of failure to meet standard
If any licensee of a broadcast station fails to meet the requirements of this subsection, the
Commission may deny the application for renewal in accordance with paragraph (3), or
grant such application on terms and conditions as are appropriate, including renewal for a
term less than the maximum otherwise permitted.” 47 U.S.C. § 309(k) (2000).
    47 U.S.C. § 309(k)(2) (2000).
 Id. Subsection (2) allows the Commission, after a finding that subsection (1) has not
been met, to fashion appropriate terms and conditions for a grant of license renewal, and
specifically mentions a short term renewal as an appropriate condition.

                                Petitioners Have Standing

       Elected officials representing all levels of Iowa state and local government have

signed declarations complaining of KGAN-TV’s failures. 7 Hundreds of Iowans have

signed online and hard copy petitions asking the FCC to hold hearings before

automatically renewing its license.8 Five hundred Iowans showed up at an unprecedented

“Town Meeting on the Future of Media” to voice their complaints about media in general

– some about KGAN-TV in particular. 9 The quote with which this petition begins from

  See Appendix A: Affidavits (“Public Officials”). In accordance with 47 C.F.R. § 1.16
(2004), modeled on 28 U.S.C. § 1746 (2005), Petitioners have used “affidavits” and
“declarations” interchangeably throughout this Petition and on the documents supporting
the facts it contains. Section 1746 provides in pertinent part: "Wherever, under any law of
the United States or . . . rule . . . any matter is required or permitted to be supported . . .
by the sworn . . . affidavit, in writing of the person making the same . . . such matter may,
with like force and effect, be supported . . . by the unsworn declaration . . . in writing of
such person . . . in substantially the following form: . . . (2) . . . "I declare . . . under
penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)."
  See Appendix B: Exhibits (“Signature Petition”). Petitioners wish to eliminate any
possible confusion between these hard copy and online “petition signatures” and the
Petitioners on this Petition to Deny. Those who signed the “petitions” are not parties to
this Petition to Deny. Thus, Petitioners need not, and do not, represent that each of the
individuals signing the “signature petition” would meet the “standing” requirements –
although Petitioners believe that the overwhelming number of them would. The list may,
however, contain some names (presumably entered online, a process over which
Petitioners obviously have no control) of individuals who appear to reside out of Iowa.
Petitioners believe all these signatories are relevant, however, as evidence that the
opposition to the automatic renewal of KGAN-TV’s license is widespread.
  A “Town Meeting on the Future of Media,” held in Iowa City, Iowa, on October 5,
2005, with over 500 in attendance, ran from 7:00 until after 11:00 p.m. with panelists and
the testimony of individuals within the KGAN-TV viewing area concerned about the
performance of local media. A transcript of that meeting is attached to this Petition. See
Appendix B: Exhibits (“Transcript of October 5, 2005, Town Meeting”). Because
Petitioners include a number of quotations from this transcript in their Petition (merely as
evidence that such statements were in fact made on that occasion), there is also included a
declaration from the individual at the professional transcription service who actually
prepared it, and was retained by Free Press for this purpose (a firm unaffiliated with
IBLTV) as to the accuracy of this transcript. See Appendix A: Affidavits (“Declaration of

Amy Johnson Boyle, former anchor at KGAN-TV, undoubtedly expresses concerns of

other past and present station employees.

       Thus, Iowans for Better Local Television (IBLTV) not only speaks for its

members, but has provided a voice for many other Iowans as well.10

       IBLTV is about as grassroots as an organization can be.11 No “outside agitators”

played a role in its formation. It’s not “front group” for some Washington organization.

Its modest expenses have been paid by its own members. Although it sought some

outside pro bono consultation regarding this petition12 most of the work has been done by

its members. It is unrepresented by counsel, representing itself in this filing in the person

of Trish Nelson, Chair. However, Petitioners also wish to thank Andrew Schwartzman, of

the Media Access Project. Although not representing IBLTV as counsel, he did kindly

Maria Bertallot”). IBLTV wishes to acknowledge the role of Free Press, and a dozen
other local organizations, in making this event possible.
   The depth of IBLTV members’ and other Iowans’ concerns are further evidenced by
the efforts represented in this petition. There were bi-monthly meetings of IBLTV for a
year, a dozen visits to KGAN-TV to examine its public inspection file, and dozens of
hours of KGAN-TV’s programming taped, watched and analyzed. Hundreds of public
comments were read. Without staff, IBLTV members have had to juggle career, family
and personal time – occasionally drawing down vacation time from work -- to complete
this project in which they believe.
  The IBLTV steering committee includes a former U.S. Marine who coaches the Cedar
Rapids Boxing Clubs, a first generation American whose father was a construction
worker, a small town Iowa boy who became the first in his extended family to attend and
graduate from college, the local Fiddlers’ Picnic Festival promoter, a small town Iowa
daughter of a factory worker who went on to become the first in her family to attend
college and now works as a clinical social worker, a woman who plays guitar for an
English Country Dance group and volunteers at the Cedar Rapids Free Clinic, and a
former championship swimmer . Many work as professionals. It is, in short, “pure Iowa.”
  The consultant was University of Iowa College of Law lecturer in communications
law, Nicholas Johnson. Mr. Johnson is not otherwise affiliated with IBLTV nor is he a
party to this petition.

agree to look over this Petition after it was drafted, made some suggestions, and provided

guidance regarding Commission procedures for filing. Any errors in the Petition are, of

course, the responsibility of IBLTV.

       Petitioners, Iowans for Better Local Television, and the broad range of KGAN-

TV viewers who share their concerns, clearly meet the requirements of standing.

       Petitioners meet the “party in interest” standard of § 309(d)13 insofar as: (a) they

reside in Iowa, (b) within the over-the-air and cable-carriage viewing area of KGAN-TV,

(c) have been viewers of the station, and (d) are knowledgeable as to its performance. (e)

Petitioners assert that they have been harmed personally, professionally, organizationally,

and as citizens in the participatory democracies of their respective local communities by

KGAN-TV’s numerous violations of the “public interest” standard,14 as detailed below,

and (f) as to which the attached affidavits attest.

                                  KGAN-TV’s Violations

I. KGAN-TV has Committed Sufficient Serious Violations of the Commission’s

Rules and Regulations to Constitute a Pattern of Abuse

                          A. SBG appears to have lied to the FCC

       As discussed below, SBG’s acquisition of KGAN-TV was a prima facie violation

of the Commission’s duopoly rule. Therefore, a waiver of that rule was requested by

SBG. The waiver was granted by the Commission – but with a condition. SBG promised

  “The petition shall contain specific allegations of fact sufficient to show that the
petitioner is a party in interest . . ..” 47 U.S.C. § 309(d) (2000).
  “[I]f the Commission . . . shall find that public interest, convenience, and necessity
would be served by the granting [of the “Application for Renewal of Broadcast Station
License”], it shall grant such application.” 47 U.S.C. § 309(a) (2000).

the Commission it would not share staff between KGAN-TV and SBG’s station in Des

Moines, KDSM-TV. The very next year, SBG announced plans to share news staff

between KDSM-TV and KGAN-TV.15

       Given the short amount of time between the grant of the KGAN-TV license to

SBG and the commencement of staff-sharing, it would appear that SBG may well have

had plans to share staff between the two stations at the very time its application was

before the Commission – in which SBG promised the Commission it would never do

anything of the sort. If in fact SBG did have such plans at the same time it was promising

the Commission the stations would not share staff, it would appear that SBG was clearly

in violation of Commission regulations requiring candor from licensees.16

       The Commission may deny licenses for misrepresentations of commission or

omission in any application or writing required by the Commission.17 SBG represented to

the Commission that it did not have plans to share staff, and promised that it would not

do so in the future. Even if SBG did not have plans to share staff at the time it made those

representations, the Commission should set KGAN-TV’s license renewal for hearing

   See Aimee Deeken, KDSM Sets Newscast, MEDIAWEEK, July 31, 2000, available at
&skeyword=&teaser= (last visited Dec. 2, 2005).
   Applicants before the Commission may not “[i]n any written or oral statement of fact,
intentionally provide material factual information that is incorrect or intentionally omit
material information that is necessary to prevent any material factual statement that is
made from being incorrect or misleading.” 47 C.F.R. § 1.17(1) (2004).
   “The Commission may revoke any station license or construction permit for false
statements knowingly made either in the application or in any statement of fact which
may be required pursuant to section 308 of this title.” 47 U.S.C. § 312(a)(1) (2000). If
SBG lied in the application for the license transfer by stating they would not share staff
while simultaneously planning to share staff, they knowingly made false statements in
their application.

because, without that promise, the Commission would not have granted the license in the

first place.18

                      B. SBG violates the Commission’s ownership rules

           Sinclair Broadcast Group violates the Commission’s ownership rules in two


           When the Commission approved SBG’s acquisition of the KGAN-TV license it

expressly recognized that SBG would be in violation of its rules regarding overlapping

signals.19 The Commission granted SBG a waiver on the condition that the two

overlapping SBG-owned stations, KGAN-TV and KDSM-TV, would operate

independently of each other and not share local sales, programming, news, or office


           SBG promptly violated that condition.21

   “The Commission may revoke any station license or construction permit because of
conditions coming to the attention of the Commission which would warrant it in refusing
to grant a license or permit on an original application.” 47 U.S.C. § 312(a)(2) (2000). The
Commission would not have granted the license transfer but for the promise not to share
staff. SBG shares staff, and therefore the license may be revoked.
  See 14 FCC Rcd. 6204, 6208 (1999), attached as Appendix B: Exhibits (“Grant of
License Transfer”) and Appendix B: Exhibits ("Assignee’s Exhibit C-1 from FCC Form
314, submitted 9/25/98" at p. 6).
   See Aimee Deeken, KDSM Sets Newscast, MEDIAWEEK, July 31, 2000, available at
& skeyword =&teaser= (last visited Dec. 2, 2005). KGAN-TV in fact shares staff with
KDSM-TV and has had plans to do so since at least July of 2000. KDSM-TVs local
newscast uses KGAN-TV staff.
See Appendix B: Exhibits (“Charles A. Miller, Sinclair and television news:
Reduction, centralization, and loss of local autonomy”). All of Charles A. Miller’s reports

           Petitioners contend SBG’s violation of this express condition nullifies the

Commission’s conditional waiver of SBG’s violation of its ownership rules, and that

SBG now stands in violation of those rules with no valid waiver. Because the conditions

of the license transfer have not been met – indeed SBG may have never intended to meet

them – the ill-gotten license should, at a minimum, not be renewed.

           Second, the Commission provides limits on the number of stations in which a

licensee may have a cognizable interest.22 KGAN-TV has entered into an operational

agreement with local station KFXA-TV that violates the Commission’s rules. This

agreement, which puts both stations under a single management scheme, results in SBG

having a “cognizable interest” in both KGAN-TV and KFXA-TV that violates the rule.23

           Because crucial portions of the operational agreement were missing or incomplete

in KGAN-TV’s public file,24 Petitioners request the FCC require KGAN-TV to replace

the missing portions of the Agreement in its public file and otherwise make them

available to Petitioners in order that SBG’s control over KFXA-TV can be determined.

are supported by his declaration, Appendix A: Affidavits (“Declaration of Charles A.
  No licensee may have a cognizable interest in two of the top four stations in any
market if the merger would result in the market containing less than 8 independently
owned and operated television broadcast stations. 47 C.F.R. § 73.3555(b)(2) (2004);
Prometheus Radio Project v. FCC, 373 F.3d 372, 412 (2004). KGAN-TV and KFXA-TV
are each within the top four stations in Cedar Rapids, Iowa, a market with fewer than 8
independent television stations.
  See Appendix A: Affidavits (“Affidavit of Dylan Thomas”); Appendix B: Exhibits
(“Items Missing from the KGAN-TV Public File”).

         From what Petitioners have been able to ascertain, the agreement consists of the


        KFXA-TV agrees to sell commercial time, and provide administrative functions

         such as traffic and billing, accounting, bookkeeping, monitoring and maintenance

         of both stations’ technical equipment and facilities.

        KGAN-TV allows KFXA-TV to use some of KGAN-TV’s equipment, the list of

         which is omitted from the public file.

        KGAN-TV has full access to KFXA-TV’s books.

        Mutual agreements are required for the setting of annual budgets, large

         expenditures, hiring and firing of key employees, retention of outside consultants,

         retention of key employees after they fail to meet specified standards of

         performance, and any change in the broadcast signal or transmission.

        Both stations agree to keep in employ a list of certain employees.

        There is an agreement to split expenditures, but these expenditures are not listed

         in the contract.

        When KFXA-TV employees are at KGAN-TV, they are to be supervised by


        KGAN-TV and KFXA-TV covenant not to take any action which would

         adversely affect either station.

  See Appendix B: Exhibits (“KGAN-TV/KFXA-TV Agreement”). All of the following
details are taken from so much of that Agreement, as was available in KGAN-TV’s
public inspection file.

         KFXA-TV agrees to run KFXB-TV (another broadcast station owned by KFXA-

          TV) as it has been running KFXA-TV. (Interestingly, there is also a

          confidentiality agreement that binds both parties not to reveal the terms of this


         KGAN-TV pays KFXA-TV for the services it provides.

         KFXA-TV pays KGAN-TV according to a monthly formula. The formula, and

          exactly what it is for which KFXA-TV is paying KGAN-TV, has been omitted.

         KFXA-TV takes a given amount out of accounts receivable each month and

          KGAN-TV takes the rest.

         There is a set, agreed upon budget for the employees’ salaries at both stations.

         Both stations are bound to get express written consent from the other station

          before selling their station.

         Upon termination of this agreement, KGAN-TV is obligated to hire all KFXA-TV

          employees who provide services solely to KGAN-TV.

          The consequences of this agreement put SBG in a position vis-à-vis KFXA-TV

that is the equivalent of that of a licensee.26 KGAN-TV runs KFXA-TV and keeps the

profits. It appears the stations co-mingle assets, profits, and staff. KGAN-TV simply

takes the profits over a certain rate of return allocated to for KFXA-TV. It is also evident

that KGAN-TV is the “supervisor” station because KFXA-TV employees are at least

partially under KGAN-TV control, KGAN-TV is obligated to hire any KFXA-TV

employees who worked solely for KGAN-TV, and KGAN-TV stands to take the profits

over KFXA-TV’s agreed upon rate of return. Thus, KGAN-TV/SBG has the incentive to

     See Appendix A: Affidavits (“Declaration of Nicholas Johnson”).

produce a profit at KFXA-TV and to keep both stations profitable. As well, there is

evidence in the KGAN-TV public viewer comment file that KGAN-TV controlled

KFXA-TV’s programming.27

         Petitioners contend that this operational agreement clearly constitutes

SBG/KGAN-TV’s “cognizable interest” in KFXA-TV.28 The agreement allows KGAN-

TV to operate and control at least part of KFXA-TV’s business. Petitioners further

contend that the agreement constitutes an ownership interest because KGAN-TV retains

KFXA-TV’s profits over a certain rate of return, thus providing KGAN-TV a financial

interest in the profits of KFXA-TV.

         The operational agreement between KGAN-TV and KFXA-TV provides for the

joint selling of broadcast and advertising time. Given that more than 15 percent of

KFXA-TV’s broadcasting and advertising time is sold by the same people under the same

process as KGAN-TV’s broadcasting and advertising time, and that the agreement puts

KGAN-TV in ultimate control of KFXA-TV’s finances, personnel and programming,

KGAN-TV has violated yet another Commission rule.29

     See Appendix B: Exhibits (“KGAN-TV Places Programs on Other Local Stations”).
   “The words ‘cognizable interest’ as used herein include any interest, direct or indirect,
that allows a person or entity to own, operate or control, or that otherwise provides an
attributable interest in, a broadcast station.” 47 C.F.R. § 73.3555 note 1 (2004).
   When there is a “time brokerage” relationship or a joint sales agreement in which one
station sells more than 15 percent of the broadcast time or advertising time of another
station, there must be a written agreement “verifying that [the other station] maintains
ultimate control over the station's facilities including, specifically, control over station
finances, personnel and programming.” 47 C.F.R. § 73.3555 notes 2(j) and 2(k) (2004).

         There are two emails sent to viewers in KGAN-TV’s public file declaring that

KGAN-TV “placed” a program on another local station, KWWF-TV.30 Petitioners are

unsure of the nature of KGAN-TV’s relationship with KWWF-TV. If there is a

programming, or other contractual, agreement between the two stations it is missing from

the public file. Petitioners request the Commission obtain from KGAN-TV any

documentation of its relationship with KWWF-TV. KGAN-TV’s apparent ability to

“place” programs on KWWF-TV indicates that KGAN-TV may have a cognizable

interest in KWWF-TV that would have violated 47 C.F.R. Section 73.3555.

         C. KGAN-TV did not comply with the Commission’s DTV regulations

         KGAN-TV was granted a digital television (DTV) construction permit on May

25, 2001, which was set to expire on May 1, 2002.31

         KGAN-TV’s planned tower was not adequate for its proposed DTV system.

Rather than construct an adequate antenna tower, KGAN-TV chose to contract with

another local station, KCRG-TV, to modify KCRG-TV’s tower to accommodate KGAN-

TV’s transition to DTV.32

         KGAN-TV asked the Commission for a series of extensions as it revised, and then

revised again, its estimated completion dates for the modified tower that would enable it

to comply with the Commission’s requirement of full power DTV transmissions.33

     See Appendix B: Exhibits (“KGAN-TV Places Programs on Other Local Stations”).
     Appendix B: Exhibits (“Construction Permit”).
     See Appendix B: Exhibits (“FCC Form 337 Applications,” February 28, 2002).
   See Appendix B: Exhibits (“FCC Form 337 Applications,” February 28, 2002, October
1, 2002; “Low Power STA Letters,” May 9, 2003, November 20, 2003 and May 20,

           In a letter from the FCC Media Bureau, dated June 14, 2002, KGAN-TV’s request

for an extension of time was denied and the station admonished for missing the


           For reasons unexplained by KGAN-TV, and based on Petitioners rather thorough

search, this letter would appear to have been missing from its public file. The existence of

the letter was only uncovered by Petitioners in the course of their search of FCC


           The missing letter also contains Commission findings that KGAN-TV had four

years to make arrangements to build its DTV facility. In other words, the extensions

should not have been required. The most charitable interpretation of these failures is that

they were simply the result of KGAN-TV’s poor planning and mismanagement of the

application and construction processes. While Petitioners have no way of knowing if

KGAN-TV’s claims that its facility would be operational by October 2002 were a

deliberate effort to mislead the Commission, clearly they had no reasonable basis in


           KGAN-TV was granted a special temporary authority (STA) to operate at low

power on June 3, 2003. It requested and was granted an extension of the STA on

December 4, 2003. It requested and was granted another extension on June 15, 2004.

KGAN-TV finally commenced full power DTV transmission in December, 2004, in time

  The Commission required commercial stations to commence DTV transmission by
May 1, 2002. 47 C.F.R. § 73.624(d)(1)(iii) (2004). And see Appendix B: Exhibits (“17
FCC RCD. 17,151”) for an indication of the admonishment.

to air the Superbowl, following which it promptly requested yet another STA to operate

at low power.36 KGAN-TV received a substantial number of viewer complaints regarding

the lack of DTV transmission in the months leading up to the Superbowl.37 Viewers

wanted to receive DTV transmissions of NFL playoff games and primetime programs,

and were concerned that KGAN-TV might not air the Superbowl in DTV.38

           There are no records in the file of a Commission admonishment or fine for these

failures, but because Petitioner is aware of at least one admonishment which was not

disclosed, Petitioner asks that the Commission require KGAN-TV bring forward any

other admonishments or fines for review, including those levied upon other SBG stations.

D. KGAN-TV has failed to comply with the standards of Congress and the Commission

                              regarding children’s programming

           Congress has provided that in reviewing applications for license renewal the

Commission “shall . . . consider the extent to which the licensee . . . has served the

educational and informational needs of children.”39

   Appendix B: Exhibits (“Low Power STA Letters,” February 17, 2005). The tower
owner was concerned about the capacity of its antenna tower. KGAN-TV’s own tower
had been scrapped. Thus, its continued use of the KCRG-TV tower would put three
transmissions on a tower built to handle no more than two.
     See Appendix B: Exhibits (“Viewer DTV Complaints”).
  “[T]he Commission shall, in its review of any application for renewal of a television
broadcast license, consider the extent to which the licensee—(1) has complied with
[children’s educational programming] standards; and (2) has served the educational and
informational needs of children through the licensee's overall programming, including
programming specifically designed to serve such needs.” 47 U.S.C. § 303b (2000).

           Any impartial review of KGAN-TV’s record will make clear that the station’s

record in this regard falls woefully short of the spirit, and substantially short of the letter,

of what the Congress and Commission require. KGAN-TV has failed to meet

programming minimums, has exceeded advertising maximums, and has failed to serve

“the educational and informational needs of children.” 40

1. KGAN-TV has failed to meet programming minimums

           The Commission’s regulations provide that licensees failing to meet its children’s

programming requirements must be referred to the Commission.41 Because KGAN-TV

has not complied with those requirements, Petitioners request a hearing at which both

parties can present evidence bearing on KGAN-TV’s noncompliance.

           Licensees are required to air a minimum of three hours of “core programming”

for children each week, averaged over a 6-month period.42 For the following reasons,

KGAN-TV has failed to meet that minimum:

           Program-length commercials. What KGAN-TV represents to be children’s

“programming” is, in fact, little more than program-length commercials. Virtually all of

KGAN-TV’s so-called “core programming” is produced by Nickelodeon for its “Nick

Jr.” programs. During these programs commercials are run for Nick Jr. products, such as

     47 C.F.R. § 73.671 (2004).
  “Licensees that do not meet these processing guidelines will be referred to the
Commission, where they will have full opportunity to demonstrate compliance with the
[Children’s Television Act] CTA.” 47 C.F.R. § 73.671 (2004).

magazines and books.43 One program was used to sell tickets to staged productions of

that program.44 A TV program that features its sponsor’s products and characters within

its content is what the Commission characterizes as a “program-length commercial.”45

           “Regularly scheduled.” Many of the programs KGAN-TV claims as core

programming do not meet the requirement that they be “regularly scheduled weekly


           “Educational and informational.” As for “educational” and “informational,”

KGAN-TV has aired at least two programs, The New Tales from the Cryptkeeper and

Wheel of Fortune 2000, that are clearly neither.47 In fact, The New Tales from the

   See Appendix A: Affidavits (“Selected Results from Petitioner’s Monitoring of
KGAN-TV’s Children’s Programming” for June 18, 2005). Petitioners contend
promotional items for Nick Jr. programs are properly considered commercial matter
insofar as they are not intended to educate or inform children. They are not even intended
to inform parents about the program. Their purpose is to persuade children to watch other
“Nick Jr.” shows and view the advertising run during those programs.
   See “FCC Consumer Facts,” at
(last visited Dec. 21, 2005) for information on the Commission’s treatment of host-selling
and program-length commercials.
   47 C.F.R. § 73.671 (2004). KGAN-TV often preempts its “regularly scheduled core
programming” for children and has preempted 77 shows since 1998, or what averages out
to approximately 2.5 preemptions per quarter. See Appendix A: Affidavits (“KGAN-TV
Preemptions of Children’s Programming”) for a list of the number of preemptions
KGAN-TV has reported on its FFC 398 Forms. Obviously, core programming that is
regularly preempted cannot, in good faith, be represented to have been “regularly
scheduled.” Petitioners contend that this amount of preemption is excessive and not
within the letter or spirit of the Commission’s rules.
  Eliminating these programs from KGAN-TV’s core programming results in KGAN-
TV airing less than 3 hours of core programming per week from 1/1/98 to 9/30/00. See
KGAN-TV FCC form 398 submissions for 1/1/98 to 9/30/00. See Appendix B: Exhibits
(“Wheel of Fortune 2000 Descriptions” and “The New Tales From the Cryptkeeper

Cryptkeeper is actually detrimental to children insofar as it contains violence and

encourages children to seek out the adult material on which this show is based.48

2. KGAN-TV exceeds advertising maximums

           Congress requires that “each commercial television broadcast licensee shall limit

the duration of advertising in children's television programming to not more than 10.5

minutes per hour on weekends and not more than 12 minutes per hour on weekdays.”49

Petitioners’ monitoring of KGAN-TV’s children’s programming has revealed instances

in which the station has exceeded these statutory limits.50

           Even if the Commission finds that KGAN-TV’s core programming does not

constitute program-length commercials, KGAN-TV has run as much as 17 minutes and

18 seconds of commercials during one of its hours of children’s programs. This has taken

the form of advertising, station identification, and public service announcements not a

part of the program during that one hour.51 KGAN-TV has aired as much as 10 minutes

and 48 seconds of commercials during its half-hour children’s programming.52

Descriptions”) for descriptions of the two shows that indicate that the shows are not
educational or informational.
  The New Tales from the Cryptkeeper is based on the adult HBO show Tales from the
Crypt which features gore, violence, nudity, and sex. See Appendix B: Exhibits (“The
New Tales From the Cryptkeeper Descriptions”).
     47 U.S.C. § 303a(b) (2000).
 See Appendix A: Affidavits (“Selected Results from Petitioners’ Monitoring of
KGAN-TV’s Children’s Programming” for May 28, 2005, and June 4, 2005).

3. KGAN-TV’s programming fails not only the three hours weekly standard but the

“somewhat less” standard as well

          The Commission requires licensees to “air” a minimum of three hours of core

programming per week.53 KGAN-TV does not meet this minimum requirement because it

only “scheduled” three hours of weekly core programming during the license term, and

then proceeded to preempt a significant proportion of that scheduled programming. This

necessarily resulted in the station having “aired” less than the three hours of “scheduled,”

and required, programming.54

          The Commission provides that those licensees who program “somewhat less”

than the mandatory three hours per week may be permitted to make up the time with

specials, short-form programs, and regularly scheduled non-weekly programs that have as

a significant purpose the “educating and informing” of children55 KGAN-TV’s children’s

programming does not meet even this more flexible standard.56

  “A licensee that has aired at least three hours per week of Core Programming. . .will be
deemed to have satisfied its obligation to air such programming . . . .” 47 C.F.R. §
73.671(d) (2004).
   See Appendix A: Affidavits (“KGAN-TV Preemptions of Children’s Programming”)
for a list of preemptions. For each preemption, that week did not air three hours of
regularly scheduled core programming, and because in any given week, KGAN-TV only
airs at most 3 hours of core programming, the average weekly airing of core
programming for any 6-month period containing a preempted show does not meet the
     47 C.F.R. § 73.671(d) (2004).
  There may be substitutions for core programming by stations if their children’s
programming is only “somewhat less” than what is required. 47 C.F.R. § 73.671 (2004).
Petitioners contend that the amount of time by which KGAN-TV falls short of the
minimum should be found by the Commission to be too much to be considered only
“somewhat less” than 3 hours. More significant, to Petitioner’s knowledge, KGAN-TV

       Wild America, which is aired early Sunday mornings, does not fit within the

“substitution exception” because it is not a children’s special, short-form program, or

regularly scheduled non-weekly program. Moreover, it is aired at 6:00 a.m. Sunday

mornings – which is, of course, outside of the Commission’s acceptable time range,57 and

is book-ended by paid programming.58 While that should be the end of the matter, since

KGAN-TV lists the program as partial satisfaction of its children’s programming

requirements, additional comment is in order.

       Even with the addition of this non-qualifying extra half-hour show, KGAN-TV’s

package of children’s programming would still be less than three hours per week.59

has not aired any children’s specials, short-form programs, or regularly scheduled non-
weekly programs with a significant purpose of educating and informing as substitution
  Core programming must be aired between the hours of 7:00 am and 10:00 pm. 47
C.F.R. § 73.671 (2004). Wild America airs at 6:00 am.
  See Appendix B: Exhibits ( “KGAN-TV’s Program Schedule”) for KGAN-TV’s
Sunday morning programming.
   Should it be found that adding the half-hour show puts total airtime above the three-
hour-per-week threshold, KGAN-TV does not air a “package of different types of
educational and informational programming that . . . demonstrates a level of commitment
to educating and informing children that is at least equivalent to airing three hours per
week of Core Programming.” KGAN-TV’s core programming is not “a package of
different types” of programming. Wild America is the same type of program as KGAN-
TV’s claimed “core programming.” It is a weekly half-hour show; it is not a special, non-
weekly show, or short-form program.
        Even if Wild America were to be found to be a different type of show than
KGAN-TV’s claimed “core programming,” KGAN-TV still does not air a “package of
different types” of programming sufficient to satisfy the standard. KGAN-TV’s package
is quite homogenous. Of KGAN-TV’s “core programming,” five of seven shows are
intended for children aged two to five. The other two programs are intended for ages two
to eleven years. Of KGAN-TV’s core programming, there are no shows intended for
children aged twelve to sixteen years, and there are only two shows intended for children
over the age of five. KGAN-TV’s “core programming” is predominantly geared to the
youngest set.

4. KGAN-TV does not supply children’s programming information

          Commission regulations require that licensees provide publishers of program

guides with information identifying programming specifically designed to educate and

inform children, including the age group for which each show is intended.60 Petitioners

have not found a single publication that identifies which KGAN-TV programs are

specifically designed to educate and inform children and that identifies the age range for

which each program is intended. While these findings may not be dispositive, at a

minimum they cast serious doubt upon KGAN-TV’s claim that it actually supplied

publishers this programming information.61 Thus, KGAN-TV’s compliance is a

substantial and material question of fact that must be designated for hearing.62

        What’s more, to the best of Petitioners’ knowledge, all of KGAN-TV’s children’s
shows are produced by the same company for the Nickelodeon cable network’s grouping
referred to as “Nick Jr.” Nick Jr. programs are all non-local animated shows featuring
fictional young characters and geared to a very young audience for whom Nickelodeon’s
normal programming is deemed too old. While these shows may or may not be “quality”
programs, they are not varied enough in either their intended audience or format and
content to be considered “different types” of educational programming. Each show in
KGAN-TV’s core programming is in fact the same type of programming. Adding
KGAN-TV’s Sunday morning non-core children’s educational program, Wild America,
which is intended for children aged 13 to 16, adds one more type of programming to
KGAN-TV’s package. This type is a non-local non-animated nature show hosted by an
adult and intended for an older audience. Having two types of programs, the second type
consisting of one program, hardly constitutes a “package of different types” of
programming as contemplated by 47 C.F.R. § 73.671 (2004).
     47 C.F.R. § 73.673 (2004).
   See Appendix B: Exhibits (“Efforts to Find Publications of KGAN-TV’s Children’s
Programming”). One source identified the grade-in-school ranges for the programs, but
as KGAN-TV does not supply grade ranges, but age ranges, that publication most likely
did not get its published information from KGAN-TV, and although grade ranges are
similar to age ranges, there are significant differences and Congress has chosen to have
stations identify age, not grade.
     47 U.S.C. § 309(e) (2000).

5. KGAN-TV’s children’s programming serves neither the needs of the community

nor those of its children

        KGAN-TV has failed to serve the children that constitute that most vulnerable

and impressionable portion of its viewing audience and the highest of its “public interest”


        Petitioners do not accept KGAN-TV’s claim that it airs the required three hours of

“core programming.” However the Commission may resolve that dispute, beyond

whatever core programming the station does air, and its half-hour of non-qualifying early

Sunday morning programming, KGAN-TV does not air programming designed for

children. The typical child in KGAN-TV’s viewing area watches more hours of (mostly

adult) television in one day than all of the hours of programming specifically designed for

children that the station airs in one week of days combined.63

        Mary Mascher, a Representative in the Iowa Legislature from Iowa’s House

District 77 and a teacher in the Iowa City Community School District, spoke at the

October 5, 2005 “Town Meeting” about the state of educational programming from

KGAN-TV. Here is an excerpt from her testimony: 64

  See the statement of Mary Mascher, text immediately below, for an informal survey of
local children’s television viewing habits.
   Although Representative Mary Mascher has signed a declaration accompanying this
petition as an elected official, she is not a member of Iowans for Better Local Television,
a petitioner, has not otherwise endorsed this petition as such nor taken a formal position
on the renewal of KGAN-TV’s license. A transcript of the Town Meeting is available as
Appendix B: Exhibits (“Transcript of October 5, 2005, Town Meeting”) and online as
Free Press, "Town Meeting on the Future of Media" (Iowa City, Iowa, October 5, 2005), (last visited
December 9, 2005).

               I was going to speak as a legislator tonight but I shifted gears. I'm really
       and truly an educator in that I have taught in the elementary schools in Iowa City
       for the last 29 years.
               I wanted to start by just saying that big media doesn't serve local
       communities and it certainly doesn't serve our children. . . .65
               So what are they watching? Ninety percent of the time our kids are
       watching television that is not specifically designed for them; 90% of the time!
       And it's not because they don't want it. It's just not there! Not at the local level,
       not at the national level, it's just not there! And it's an enormous problem. . . .66

It seems indisputable to Petitioners that KGAN-TV has not demonstrated a commitment

of funds, time and creativity, above and beyond the Congressional and Commission

requirements, that one might fairly expect to be the result of a genuine caring for

children. Petitioners believe they have also demonstrated that KGAN-TV has not even

met the very minimal standards required by the letter of the law and regulations.

       But this is not just a case of nonfeasance, it is malfeasance as well.

   Ms. Mascher continued, “My students have told me that, with their television viewing
habits, I am saddened to hear that they are watching more television than reading books.
They are watching more television than they are playing outside. They are watching more
television than they are talking to their parents. Now that's a concern . . . for all of us, in
terms of what that means. They are getting a lot of information from television and it's
not always good. Many of them are watching from 3.5 to 4 hours per day, and up to 23
hours per week. Multiply that by months and years, and you can get a sense of where our
kids are spending their time.” Id.
  Ms. Mascher continued, “I ask my kids: ‘OK, so what do you want?’ And this is what
they said. ‘Mrs. Mascher, I don't think they should be putting so many shows on for kids
that are cartoons, unless they are younger kids.’ They don't think that's appropriate. ‘I
would like them to play more educational shows, like shows that use computer
animation.’ Remember, they're the technology generation. ‘It would make historical
events really cool.’ They are thinking about that. ‘Less soap operas.’ They don't want that
on there. . . . So those are just some of the things that they've been telling us. We are not
getting that in our local diet here. And it certainly is a problem and a concern for many
parents who are also seeking help from the national media.” Id.

         KGAN-TV demonstrates daily that it is quite willing even to harm children by

airing material designed for adults during times when many children are unsupervised,

such as after school before parents are home from work.67

         And it gets worse. KGAN-TV often runs inappropriate commercials adjacent to

what it represents to be children’s programming. For example, on June 18, 2005, KGAN-

TV ran an ad for Budweiser beer immediately preceding the beginning of Lazy Town, one

of what KGAN-TV represents to be its core programs.68 This is not to say that the steady

diet of commercials the station regularly pitches to children for what SBG management

apparently believes are children’s two basic food groups – “sweet grease” and “salty

grease” – are much better by comparison.69 But selling beer to children does rather nicely

  Between the hours of 3:00 pm and 5:30 pm, KGAN-TV airs the programs, Judge Judy,
The Ellen DeGeneres Show, and EXTRA. See Appendix B: Exhibits (“KGAN-TV’s
Program Schedule”). Although these shows are presumably appropriate for an adult
audience, a child audience is more susceptible to the advertising and implicit cultural
assumptions these shows make. EXTRA is the worst of these three shows, celebrating
superficial entertainment “news” and personalities, and containing, as complained about
by at least one KGAN-TV viewer, sexual content. See Appendix B: Exhibits (“Viewer
Indecency Complaints”).
     See Appendix A: Affidavits (“Children’s Programming Analysis June 18, 2005”).
  Id. During the October 5 “Town Meeting” Katie Ramo voiced this concern for her

         I've got a four year old granddaughter and I think about what she is learning when
         she watches television and what she is learning to value and what she is learning
         to fear. She is learning to value smooth skin and physical beauty and she is
         learning to want things that nobody really needs. She is not learning critical
         thinking. She is not learning the value of good citizenry or collective action. She
         is learning to fear things like West Nile disease and child predators . . .. But she's
         not learning to fear corporate greed and she's not learning to fear warmongering
         leadership and she's not learning to fear the loss of our jobs overseas.

To the best of Petitioners’ knowledge Katie Ramo is not a member of Iowans for Better
Local Television, a petitioner, has not otherwise endorsed this petition as such nor taken a

dramatize the point that SBG cares not at all for the children for whose welfare it bears

great responsibility.

                        E. KGAN-TV’s public inspection file is deficient

       In a regulatory scheme heavily dependent upon public complaints and petitions,

the Commission has properly recognized the essential role played by its requirement that

each station maintain a “public file” of designated documents and public comments.70

       KGAN-TV has failed to comply with the Commission’s public file requirements

in a number of particulars.

       (1) KGAN-TV has not allowed the degree of access required by the

Commission.71 There were two occasions on which Petitioner Trish Nelson requested

access to portions of KGAN-TV’s public file and she was not provided with the entirety

of the portions requested.72

       (2) KGAN-TV keeps its public file in a room that is inaccessible by the public,

and opts to have an employee, Melissa Hubbard, carry out by hand portions of the public

formal position on the renewal of KGAN-TV’s license. A transcript of the Town Meeting
at which she spoke, and from which this excerpt has been taken, is available as Appendix
B: Exhibits (“Transcript of October 5, 2005, Town Meeting”) and online as Free Press,
"Town Meeting on the Future of Media" (Iowa City, Iowa, October 5, 2005), (last visited
December 9, 2005).
    See generally 47 C.F.R. § 73.3526. Petitioners have examined KGAN-TV’s public
file. See, e.g., Appendix A: Affidavits (“Affidavit of David Rust”) for one Petitioner’s
analysis of the public comments it contains.
  “The [station’s public] file shall be available for public inspection at any time during
regular business hours.” 47 C.F.R. § 73.3526(c)(1).
  See Appendix A: Affidavits (“Affidavit of Trish Nelson”) for a description of which
parts of the public file were not offered. See also Appendix A: Affidavits (“Affidavit of
Dylan Thomas”).

file specifically requested. This arrangement makes it socially awkward to request to see

the entire public file because such a request would entail Ms. Hubbard, who is a small,

older woman, lifting and carrying thousands of pages of documents (constituting a great

weight and requiring significant physical effort) back and forth across the station.

        (3) At 25 cents per page, the amount KGAN-TV charges for copies of public file

documents is unreasonable. As a result of those excessive charges, it was simply not

financially viable for Petitioners to ask KGAN-TV to copy the entire public file of

thousands of pages. Such prices – three to five times commercial rates in the area –

would seem to make this a clear violation of the Commission’s rule that such charges be

“reasonable.”73 Whether KGAN-TV’s purpose in charging such rates is to discourage

public access to the public file or not, that clearly is the result. At the very least, accessing

the entire public file was much more difficult than the spirit, if not the letter, of the law


        (4) The contents of KGAN-TV’s public file fail to include many of the items

expressly required by the Commission. Many of the exhibits and attachments to FCC

forms are missing, as well as some of the contracts with other entities, in violation of the

  KGAN-TV charged 25 cents per page for copies, even though they used their own
equipment and made the copies while Petitioners were viewing the public file. See
Appendix A: Affidavits (“Affidavit of Trish Nelson”). The typical charge for copies at
commercial copy centers within the station’s market area is in the range of 4 to 8 cents a
copy (depending on quantities, quality of paper, contracts, and promotions). Obviously,
even these prices provide an adequate profit. KGAN-TV uses its own equipment and has
no employee work time lost besides that already incurred from the public’s viewing of
the original documents. Presumably its marginal cost for an additional copy is minimal.
See Appendix A: Affidavits (“Affidavit of Anthony Buhr”). KGAN-TV is required to
charge no more than “the reasonable cost” of copies. 47 C.F.R. § 73.3526(c)(1) (2004).
KGAN-TV’s reasonable cost would be well below 25 cents per page.

Commission’s regulation.74 To the best of Petitioner’s knowledge, KGAN-TV does not

comply with the Commission’s requirement that it keep the most recent version of “The

Public and Broadcasting” in its public file.75 KGAN-TV’s public file is also missing at

least one of the required retransmission consent documents of which Petitioner is


    The public file must contain “A copy of any application tendered for filing with the
FCC, together with all related material . . ..” 47 C.F.R. § 73.3526(e)(2) (2004). Note 2 to
paragraph (e) states, “For purposes of this section, the term ‘all related material’ includes
all exhibits, letters, and other documents tendered for filing with the FCC as part of an
application, report, or other document, all amendments to the application, report, or other
document, copies of all documents incorporated therein by reference and not already
maintained in the public inspection file, and all correspondence between the FCC and the
applicant pertaining to the application, report, or other document, which according to the
provisions of Secs. 0.451 through 0.461 of this part are open for public inspection at the
offices of the FCC.” KGAN-TV has simply failed to include much of the “related
material” that takes the form of attachments and exhibits. An itemization is provided in
Appendix B: Exhibits (“Items Missing From the KGAN-TV Public File”). See also
Appendix A: Affidavits (“Affidavit of Dylan Thomas”).
  “At all times, a copy of the most recent version of the manual entitled ‘The Public and
Broadcasting’” is to be contained in every station’s public file. 47 C.F.R. § 73.3526(e)(8)
(2004). See Appendix A: Affidavits (“Affidavit of Dylan Thomas”), stating that in
reviewing the public file the manual was not found.
   The public file is required to contain, “Statements of a commercial television or Class
A television station's election with respect to either must-carry or re-transmission
consent, as defined in §§ 76.64 and 76.1608 of this chapter. These records shall be
retained for the duration of the three year election period to which the statement applies.”
47 C.F.R. § 73.3526(e)(15) (2004). See Affidavit of Dylan Thomas, supra note 74,
affirming that Dish Network, a satellite television company, re-transmits KGAN-TV and
that there is no record of retransmission consent in the public file. This omission is
particularly detrimental to viewers of KGAN-TV who receive their signal via Dish
Network. KGAN-TV aired a crawl informing viewers that they may lose their KGAN-
TV signal if they subscribe to Dish Network. Apparently, SBG and Dish Network were
unable to reach an agreement on retransmission. But because there was no record in the
public file of their relationship, viewers were unable to learn about the agreement.
KGAN-TV employees would not divulge any information beyond what the crawl stated.
See also, “Appendix B: Exhibits (“KGAN-TV Crawl Regarding SBG/Dish Network”).

       (5) KGAN-TV does not provide the required material with which one could

substantiate KGAN-TV’s certification of compliance with children’s programming

commercial limits.77 KGAN-TV’s F.C.C. Form 398 reports, the children’s programming

quarterly filings with the Commission, were in some cases produced before the quarter

was up and before all the children’s programming was aired.78 Some of these reports are

dated over two weeks before the end of the quarter. This means that the information in

these reports for the last two weeks of the quarter is false and that the certifications are

false because they refer to events which, at the time of printing, had not yet happened.

       KGAN-TV may have submitted these Form 398 reports to the Commission after

the expiration of the quarter but, if so, in that case KGAN-TV did not include what was

submitted to the FCC in the public file. If the latter is what happened, the station has

violated both the reporting and the public file requirements.79 It also appears that, if

  “For commercial TV and Class A TV broadcast stations, records sufficient to permit
substantiation of the station's certification, in its license renewal application, of
compliance with the commercial limits on children's programming [must be included in
the station’s public file].” 47 C.F.R. § 73.3526(e)(11)(ii) . See Affidavit of Dylan
Thomas, supra 74, for support as to the absence of any substantiating records.
  See Affidavit of Dylan Thomas, supra 74, for a list of the quarterly F.C.C. Form 398
reports produced before the end of the quarter.
  “For commercial TV broadcast stations, both analog and digital, on a quarterly basis, a
completed Children's Television Programming Report ("Report"), on FCC Form 398,
reflecting efforts made by the licensee during the preceding quarter, and efforts planned
for the next quarter, to serve the educational and informational needs of children [must be
included in the public file]. The Report for each quarter is to be placed in the public
inspection file by the tenth day of the succeeding calendar quarter. By this date, a copy of
the Report for each quarter is also to be filed electronically with the FCC.” 47 C.F.R. §
73.3526(e)(11)(iii) (2004). Thus, if KGAN-TV is putting a different Form 398 report in
the public file from the one it submits to the FCC, then it is not making public a “copy”
of the report it has filed with FCC, as the rule requires.

KGAN-TV was producing these reports before the end of the quarter, it may have been

certifying compliance with the law before it had actually complied. If KGAN-TV

submitted these Form 398 reports to the Commission before the end of the respective

quarters, the certifications are false.

        (6) KGAN-TV either does not keep in its public file, or keeps but denies the

public access to, material that substantiates the certification by KGAN-TV that it does, in

fact, charge the lowest unit rate to bona fide candidates for public office.80 Because

Petitioners were unable to determine if KGAN-TV has consistently charged candidates

the lowest unit rate, Petitioners request the Commission to require that KGAN-TV bring

forward evidence that substantiates its claim of compliance.

                       F. KGAN-TV has broadcast indecent material

        Given the Commission’s long history of concern about “indecency” in over-the-

air radio and television programming, Petitioners assert that KGAN-TV’s performance

should be evaluated from this perspective as well.

        The law prohibits the broadcast of “obscene, indecent or profane” material.81

There are numerous instances of KGAN-TV broadcasts of indecent programming and


  Making time available to candidates at the “lowest unit charge” is required by 47
U.S.C. § 315 (2000).
  “Whoever utters any obscene, indecent, or profane language by means of radio
communication shall be fined under this title or imprisoned not more than two years, or
both.” 18 U.S.C. § 1464 (2000).
   Petitioners urge the Commission to apply its “indecency” standards equally to
commercials and programs alike. There is no legal basis for a distinction between the two
in terms of television’s pervasiveness, intrusion into the privacy of the home, the easy
access of children to programming, and the considerations underlying “channeling” and

          KGAN-TV is a CBS affiliate. Following the Janet Jackson incident, the

Commission did not find sufficient culpability on the part of CBS’ affiliates (as

distinguished from the network) to fine them for the indecent Super Bowl Halftime Show

broadcast by CBS on February 1, 2004. But the Commission did urge greater caution on

the part of those affiliates to avoid airing such indecent material in the future.83

          KGAN-TV has received numerous viewer complaints regarding the indecent

material it has broadcast.84

          “The Commission defines indecent speech as language that, in context, depicts or

describes sexual or excretory activities or organs in terms patently offensive as measured

by contemporary community standards for the broadcast medium.”85 Viewers have

complained about five instances in which KGAN-TV has aired indecent material –

sometimes repeatedly. These five instances all occurred between 6:00 a.m. and 10:00


“safe havens” – all arguments used to justify the regulation of this otherwise
constitutionally-protected material when broadcast.
  Complaints Against Various Television Licensees Concerning their February 1, 2004,
Broadcast of the Super Bowl XXXVIII Halftime Show, 19 FCC RCD. 19,230 at 19,240-
41 (2004).
     Appendix B: Exhibits (“Viewer Indecency Complaints”).
     Complaints, supra note 83, at 19,234.
  It is unclear whether the Playboy photos were shown during the 5:00 p.m., 6:00 p.m.,
or 10:00 p.m. news. Because KGAN-TV airs many of the same stories on its successive
newscasts, it is a fair assumption that the story aired on more than one newscast between
6:00 a.m. and 10:00 p.m. The other items were aired during the afternoon or during prime

       KGAN-TV aired an ad featuring hotel heiress Paris Hilton doing what one viewer

described as “hosing down herself and a car, and then ‘ejaculating’ in the middle of the

ad” [sic; presumably meaning “simulating an orgasm”]. The viewer went on to say that,

       [t]his advertisement is more than vulgar, more than tasteless, more than
       degrading, more than absent any measure of common morals and even common
       sense – it is pornography, short and simple! . . . I would hope that your station
       will re-think the airing of this prurient monstrosity and get it off the air
       immediately. Otherwise, I can only believe that you care absolutely nothing for
       your neighbors, who just happen to also be your viewers and your clients, nor for
       your own integrity” (bolding in original).87

Another viewer also considers this ad to be “soft porn,” and says that she has stopped

watching KGAN-TV because, “it’s worth not being embarrassed by this smut coming

into my living room when children are here.”88 This ad falls into the category of indecent

material because it depicts sexual activities or organs in terms patently offensive by

contemporary community standards for the broadcast medium.89

 Appendix B: Exhibits (“Viewer Indecency Complaints” “Letter from Linda Jernigan to
KGAN-TV,” July 7, 2005).
 Appendix B: Exhibits (“Viewer Indecency Complaints” “Email from Betty Mark to
KGAN-TV,” July 13, 2005).
  The visual depiction of Paris Hilton writhing around with a flowing hose constitutes
something “patently offensive as measured by contemporary community standards for the
broadcast medium.” Although the Commission looks to national rather than local
“standards,” it is at least relevant that these viewer comments indicate the commercial
was offensive to the contemporary community standards of the KGAN-TV viewing area.
Paris Hilton’s suggestive movements, coupled with the obvious visual metaphor of the
hose, and the scant covering of her breasts, make the commercial indistinguishable, for
purposes of its categorization as “indecency,” from the Super Bowl Halftime show --
which at least had the redeeming quality of choreographed dancing.

       KGAN-TV also received complaints about the erectile dysfunction drug ads run

during sports programs when children are in the audience.90 These ads most certainly

relate to a sexual activity – getting and maintaining an erection in order to perform

sexual intercourse – and, as indicated by the emails, are offensive to viewers in the

KGAN-TV coverage area.

       A program aired by KGAN-TV, Victoria’s Secret Fashion Show, caused viewer

complaints as well, including one from the Parents Television Council.91 This show was

described by one viewer as featuring, “a parade of scantily-clad models sashaying down

the runway in push-up bras, thong underwear, teddies, bustiers and the like. This

broadcast was patently offensive and violated contemporary community broadcast


       One viewer complained about indecency broadcast during KGAN-TV’s local

news, and criticized the station for pandering to prurient interests.93 KGAN-TV aired a

story about a University of Iowa student who was featured in Playboy magazine.

Allegedly, the story included pictures of the student from the magazine.94 Whether or not

  Appendix B: Exhibits (“Viewer Indecency Complaints”); see especially emails dated
January 11 and 24, 2004.
  Appendix B: Exhibits (“Viewer Indecency Complaints,” “Letter from the Parents
Television Council to KGAN-TV,” November 17, 2003).
 Appendix B: Exhibits (“Viewer Indecency Complaints,” “Letter from Lori Nordine to
KGAN-TV,” November 20, 2003).
 Appendix B: Exhibits (“Viewer Indecency Complaints” “Julie Marshall Email,”
August 29, 2003).
  Although the email does not elaborate in detail as to the pictures presented during the
newscast, Petitioners assume that they involved either at least partial nudity or were
otherwise sexually suggestive.

this story meets the Commission’s definition of “indecency” it does illustrate (a) viewers’

dissatisfaction with the station’s good judgment, and (b) KGAN-TV’s willingness to

pander to the audience with sexually suggestive material rather than do the tough,

expensive job of reporting on the truly significant local news and issues confronting its


          There was also a complaint about a Teri Hatcher commercial.95

                     II. KGAN-TV Does Not Serve the Public Interest

A. KGAN-TV’s serious rules violations and pattern of abuse do not serve the public


          For over 75 years, since the creation of the Radio Commission in 1927, the

standard for the grant, and renewal, of broadcast licenses has been “the public

convenience, interest and necessity.”96

          The public trustee concept has likewise remained unchanged, notwithstanding the

occasional Commission lengthening of license terms. The opening section of the 1934

Act provides:

          It is the purpose of this chapter, among other things, to maintain the control of the
          United States over all the channels of radio transmission; and to provide for the
          use of such channels, but not the ownership thereof, by persons for limited
          periods of time, under licenses granted by Federal authority, and no such license
          shall be construed to create any right, beyond the terms, conditions, and periods of
          the license.97

     See Appendix B: Exhibits (“Viewer Indecency Complaints”).
     See, e.g., 47 U.S.C. §§ 307(a), 309(a) and (k) (2000).
     47 U.S.C. § 301 (2000).

Of course, the meaning of “public interest” – not entirely unambiguous on its face – has

taken on a variety of meanings over the past century in a substantial body of writing from

the courts, congress, Commission, and commentators.98

       However, there are three propositions that Petitioners believe to be irrefutable as

minimal meanings of “the public interest.”

       1. Clearly, “the public interest” must mean something more than “profit-

maximizing behavior.” Had Congress thought the public would be optimally served by a

licensee’s desire to maximize its profits in the marketplace every minute of its 24-hour

broadcast day there would have been little need for Congress to legislate a standard of

any kind, “public interest” or otherwise.

       2. The minimal requisite service to persons in a station’s broadcast area requires

that the licensee offer something more than unrelieved propaganda advancing the

licensee’s political, ideological, economic or other personal interests. There are no limits

   By way of examples, these have included what ultimately came to be called the
“Fairness Doctrine,” minimal requirements of news, public affairs, and other
programming, and the election coverage rights of candidates embodied in Sections 315,
and later 312, of the Communications Act. The “personal attack,” “political editorial” and
public service announcement requirements are other examples. These programming
obligations were spelled out in some detail by the Commission in the early 1940s in what
is generally referred to as the Blue Book. Later there were requirements for community
ascertainment of local issues and programming needs, along with reports of programming
to meet those needs.

       From time to time these requirements have been modified, repealed or added to.
For example, at one time the Commission forbid licensees to editorialize. It later
encouraged them to do so. In this instance, when Congress sought to limit public
broadcasting stations’ editorializing, the Supreme Court found the limitation
unconstitutional. In so doing it noted that virtually all of the other congressional and
Commission regulation of broadcasters’ speech – as to which there was no constitutional
question – was distinguishable because it involved an “enhancing” of the public’s First
Amendment rights rather than the “abridging” of broadcasters’ freedom of speech. See
FCC v. League of Women Voters of California, 468 U.S. 364 (1984).

on what the licensee can communicate; there is no requirement for “equal time” for other

views;99 and the Commission has eliminated the citizens’ administrative remedy of a

Fairness Doctrine complaint as such. But, by definition, “the public interest” requires, at

a minimum, something more than “personal interest.”

       3. Petitioners support the Commission’s interpretation of the “public interest”

standard articulated in the EchoStar case.100

       In making this [“public interest”] determination, we first assess whether the
       proposed transaction complies with the specific provisions of the Act, other
       applicable statutes, and the Commission’s rules. The public interest standards . . .
       involve a balancing process that weighs the potential public interest harm of the
       proposed transactions against the potential public interest benefits. The Applicants
       bear the burden of proving, by a preponderance of the evidence, that the proposed
       transaction, on balance, serves the public interest.

After referring to the Department of Justice’s Clayton Act standards in antitrust cases, the

opinion continues,

       the standards governing the Commission’s review differ from those of DOJ. . . .
       The Commission . . . is charged with determining whether the transfer of licenses
       serves the broader public interest.

In short, there is a “public interest” responsibility of Commission licensees that, while it

encompasses compliance with laws and regulations, goes well beyond.

       In the view of Petitioners, KGAN-TV’s violations of law and regulations are

sufficient, taken alone, to compel a Commission finding that it has failed the “public

interest” standard.

  The “equal opportunity” (not “equal time”) doctrine, with its origins in 47 U.S.C. § 315
(2000), applies to political campaigns, but not otherwise to issues programming as such.

  In re Echostar Communications Corp., 17 FCC Rcd. 20,559, 20,574-20,575


       As for KGAN-TV’s “burden of proving, by a preponderance of the evidence,”

above and beyond that, “that the [license renewal] on balance, serves the public interest,”

Petitioners would urge that this should require – as the Commission “weighs the potential

public interest harm of the proposed [renewal] against the potential public interest

benefits” – that KGAN-TV demonstrate how the “public interest” will be improved by its

continued operation. Compared with other stations in the market, indeed compared with

other broadcasting licensees throughout the country, Petitioners believe this is a burden

SBG simply cannot meet, that the “harms” from its continued operation clearly outweigh

any “benefits.”

       Moreover, Petitioners would urge that while it is possible for the Commission to

“deregulate” prior specific regulations for any one of a variety of rationally supported

reasons, prior regulations and judicial decisions remain relevant in evaluating a station’s

license renewal under the “public interest” standard.

       For example, the mere fact that the Commission will no longer receive Fairness

Doctrine complaints, as such, should not mean that a pattern of one-sided presentations of

local issues – or, worse yet, a failure to program about them at all – can make a positive

contribution to a licensee’s demonstration of compliance with the “public interest”

standard. Given KGAN-TV’s record, Petitioners need not address the minimal number of

violations of prior standards that will put a licensee’s renewal in jeopardy. The

seriousness, range, and consistency of KGAN-TV’s behavior have constituted, by any

standard, a violation of “the public interest.”

       In short, Petitioners do not urge that any single, isolated “violation” of a prior

regulation should be grounds for denial of license. They do urge that when there is a

pattern of such violations, or a cumulative impact of licensee irresponsibility over a broad

spectrum of former Commission regulations, that this behavior should go to an evaluation

of the licensee’s compliance with the public interest standard. The fact that the

Commission has chosen, for administrative or other reasons, to deregulate a particular

rule should not provide an excuse for the licensee’s behavior at license renewal time – let

alone magically transform that behavior into a performance suddenly found to be

consistent with, or even advancing, “the public interest.”101

       B. KGAN-TV has failed to provide its viewing public with the minimal

information about local public policy issues, challenges and opportunities that

informed citizens need to maintain their democracy

       Petitioners would like to call the special attention of the Commission and its staff

to the analysis and report of KGAN-TV’s “local news” coverage prepared by Charles A.

Miller.102 The report compares the performance of KGAN-TV with that of KCRG-TV –

   See generally Nat’l Broad. Co. v. U.S., 319 U.S. 190 (1943); Red Lion Broad. Co. v.
FCC, 395 U.S. 367 (1969); CBS v. DNC, 412 U.S. 94 (1973); FCC v. League of Women
Voters of California, 468 U.S. 364 (1984); Broadcast Localism, F.C.C., July 1, 2004;
Final Report of the Advisory Committee on Public Interest Obligations of Digital
Television Broadcasters, Charting the Digital Broadcasting Future, Section II “The
Public Interest Standard in Television Broadcasting,” (1998).
    Appendix B: Exhibits (“Charles A. Miller, Comparison of the Local News Programs
Produced by the Two Television Stations Serving the Cedar Rapids/Iowa City Region”
(Iowans for Better Local Television, October 30, 2005)”). Sadly, it appears that KGAN’s
failure to provide adequate coverage of local news and public affairs is not unique to
SBG’s Cedar Rapids station. This may well be the result of SBG corporate direction that
impacts all SBG stations around the country. See, e.g., the Senate testimony of media
expert Mr. Dean Martin Kaplan regarding another SBG station he indicated was failing to
provide adequate local news coverage and thereby failing to live up to the public interest
in localism. See Appendix B: Exhibits (“Testimony of Mr. Dean Martin Kaplan given at
the Full U.S. Senate Committee on Commerce, Science, and Transportation Hearing on
Public Interest and Localism”).

also located in Cedar Rapids and operating as Iowa’s only remaining locally owned

station. The contrasts are stark, especially with regard to the percentages of “local news”

devoted to nationally distributed material compared with genuine local news.

       Petitioners do not contend that KCRG-TV’s performance is a model to be

emulated. There is much more that station could do. However, Petitioners believe this

data does at least demonstrate two points. (1) Clearly KGAN-TV could do much better. It

is not only theoretically possible to do so in the Cedar Rapids market, KCRG-TV’s

performance provides the evidence that it is actually being done. (2) The Commission

may want to take note of these disparities as yet one more bit of evidence of the

nationwide consequences for local communities of the Commission’s relaxation of its

limits on concentration of media ownership.

       The results of Petitioners’ monitoring103 of KGAN-TV’s “local news” are

consistent with, and support, the findings of the Miller report. Among the report’s

findings is that KGAN-TV airs approximately three-to-five minutes of news in any way

related to the local area during its so-called “local news” programs. Moreover, even these

brief bits seldom deal with serious issues confronting Eastern Iowa; indeed, some of them

don’t even deal with the area at all, they come from Des Moines or other areas of the

   Petitioners have done a substantial amount of recording and monitoring of KGAN-TV
programming that substantiates the assertions in this petition. Much of it is documented
and referred to throughout this petition. See “Appendix A: Affidavits (“Affidavit of
Dylan Thomas”).

state.104 As if that were not enough, KGAN-TV has cancelled its 5:00 p.m. news

broadcast entirely.105

          Obviously no one has a complete transcript of everything KGAN-TV has

broadcast over an 8-year license term; not the station, not the FCC, and certainly not the

Petitioners. Petitioners have done some taping, monitoring and analysis of KGAN-TV’s

programming. They believe it to be representative. Petitioners have certainly not culled

from their research results the worst examples they could find. Their results are fully and

fairly presented here. Petitioners recognize that it is possible (though they do not know it

to be true) that KGAN-TV, possibly knowing that this petition was coming, may have

made efforts during the months prior to the expiration of its 8-year license to temporarily

modify its schedule or otherwise improve its performance. If that has been the case,

Petitioners’ position is that KGAN-TV’s performance for purposes of license renewal

must encompass the entirety of that license term, and that the Commission should look

with considerable skepticism on any end-of-term efforts to bolster the station’s shoddy


          Most of the station’s “half-hour” of “local news” consists of: (a) nationally-

distributed news from the network with which KGAN-TV is affiliated (CBS) or other

sources. (The fact that the introduction to a nationally distributed story is read by a local

      See Appendix B: Exhibits (“Viewer Des Moines Coverage Complaints”).
   See Appendix B: Exhibits ("KGAN-TVs Program Schedule”) for evidence that
KGAN TV does not currently air a 5:00 pm local news program and see Appendix A:
Affidavits ("Declaration of Dylan Thomas") and Appendix B: Exhibits (Charles A.
Miller, Comparison of the Local News Programs Produced by the Two Television
Stations Serving the Cedar Rapids/Iowa City Region (Iowans for Better Local
Television, October 30, 2005)) for affirmation that KGAN-TV used to air a 5:00 pm local
news program.

anchor cannot, of course, turn national news content into “local news.”) There are also

(b) clips disguised as news designed to promote its network’s entertainment programs (in

addition to the promotional commercials it runs for this purpose);106 (c) promotional

material for products or services (not designated as “commercials”);107 (d) weather

reports, often consisting of little more than the temperatures in a significant number of

Iowa towns (all within a couple of degrees of each other); (e) scores and other items from

major commercial sports teams and, for example, tennis or golf matches; (f) what seem to

many viewers an excessive number of commercials; (g) SBG corporate executive Mark

Hyman’s commentary;108 and (h) idle “happy talk.”

          Thus, comparing the amount of time each week that KGAN-TV is either off the

air entirely or is for all practical purposes (having sold the time for program-length

commercials) with the amount of time devoted to what is truly local news creates a ratio

of roughly 27-to-one.109

      See Appendix A: Affidavits (“Declaration of Dylan Thomas”).
   Id. Because Petitioners were unable to get access to the relevant information they urge
the Commission to ascertain if these have involved payment for “product placement.”
    The commentaries of SBG vice president Mark Hyman have produced a variety of
adverse reactions from KGAN-TV viewers. See Appendix B: Exhibits (“Public
Comments”). One of the most unfortunate episodes involved a mean-spirited, defamatory
attack by Mark Hyman on a KGAN-TV viewer, Ted Remington. (Dr. Remington has
recently left the Iowa City area, but was a resident, and regular viewer of KGAN-TV,
during most of the station’s license term, in particular at the time of the defamatory
attack.) Appendix A: Affidavits (“Declaration of Dr. Theodore J. Remington”). This is
simply one of the more extreme examples of the arrogance, abuse of media power, and
use of licensed stations for personal, political and ideological advantage, rather than “the
public interest,” that predictably and inevitably occurs with the erosion of Commission
programming standards (and their enforcement) that result from “deregulation.”
   See Appendix B: Exhibits (“KGAN-TV’s Program Schedule”); Appendix B: Exhibits
(“Charles A. Miller, Comparison of the Local News Programs of the Two Broadcast

          In addition to the time for conventional commercials every half hour, Sinclair

devotes even more time to “news” about consumer products. Because Petitioners were

denied access to the relevant information (if it exits) they urge the Commission to

ascertain if these have involved payment for “product placement.” KGAN-TV devotes

additional time during the “local news” to “news” about CBS’ programming – in addition

to the promotional commercials it runs for this purpose.110 KGAN-TV also uses

deceptive practices to make what are in fact local commercials appear to be a part of the


          Finally, and in some ways most serious, KGAN-TV simply does not provide

serious coverage of significant local stories (in part because it simply can’t be done in 30-

second sound bites) – let alone provide discussion programs or documentaries –

regarding some of the most significant challenges and opportunities, public policy and

other issues confronting Iowans, as numerous affidavits to this petition from Iowa’s

elected officials attest.112

          Many of those who spoke at the October 5, 2005 “Town Meeting” also expressed

concern about the inadequate coverage of local issues. Some among them singled out

Television Stations Based in the Cedar Rapids/Iowa City Region (Iowans for Better
Local Television, October 30, 2005).
  See Appendix B: Exhibits (“Charles A. Miller, The use of promotional video in
KGAN local news programs”); Appendix A: Affidavits (“Declaration of Dylan
      See Appendix A: Affidavits (“Declaration of Dylan Thomas”).
   See, Appendix A: Affidavits (“Public Officials”); Appendix A: Affidavits (individual
declarations of Michael Carberry, Deborah Daikin, Eileen Finnegan, Richard J. Peterson,
Dennis Roseman, Robin Roseman and Aaron Wings. See also, Abigail McWilliam,
Voters Unaware of Power Initiative, IOWA CITY PRESS-CITIZEN, July 16, 2005.

KGAN-TV and Sinclair as particularly bad violators. They spoke of how this media

failure affects their jobs and civic participation. Here is a sampling of the comments:113

         Mark Smith, President, Iowa Federation of Labor AFL-CIO: “We in the labor
          movement are particularly concerned about the decline in labor coverage. . . .
          Besides token stories on Labor Day, a human-interest story here and there, and, of
          course, strikes, you don't see much coverage at all. Our joke is that, if you really
          want coverage . . . just call up and say ‘there's a bunch of people that look mean
          and they've got picket signs,’ and you can get coverage of your tax policy press
                   If you rely on general media coverage, you'd never know that the
          minimum wage has been frozen at $5.15 since 1997, that millions of people . . .
          are systematically denied their right to . . . join unions.
                   . . . Rarely did the media in Iowa cover the fact that the University of Iowa
          hires . . . union busting firms to stop people from organizing at the hospital, that in
          Polk County. . . Broadlawn Hospital hired union busters to stop their nurses from
          organizing and [spent] $200,000 of our tax money . . . .
                   You'd never know that the ratio of CEO pay to worker pay today stands at
          431 to one. You'd never know that 37 million people live in poverty. You'd never
          know that 98% of labor contracts in this country are settled without a strike. . . .
          You'd never know that union workers earn 30% more that non-union workers.
          You'd never know that the National Association of Letter Carriers collects
          millions of pounds of food, each year, for the poor.”114

         Larry McGuire, President, Inter-Religious Council of Linn County and minister,
          Community of Christ Church, “[I]f we really want to have public discourse, then
          we must be able to contact the people [SBG] who give us [Mark Hyman’s] “The
          Point,” without ever wanting to have . . . a counterpoint. Hear our voice, report
          our issues and help us improve our community. Corporate control is a reality in
          our culture. The problem is a lack of a local voice to help promote our
          community. It means there is no accountability to our local community. . . . The
          danger [in the coverage of] issues of faith in today's market is that you would

    The comments are taken from, and can be found in full in, the transcript of the
October 5, 2005, “Town Meeting,” available as an appendix to this petition and online.
Petitioners wish expressly to note that none of the individuals quoted below (unless
otherwise expressly noted) is a member of Iowans for Better Local Television, or
otherwise a petitioner, endorses this petition, encouraged it or participated in any way in
its preparation, prepared the excerpts from their statements used here, nor takes a position
on the renewal or non-renewal of license for KGAN-TV.
   Mr. Smith acknowledged that he can’t “substantiate all these numbers” (referring to
his examples), but his general point, that worker issues are not adequately covered in the
KGAN-TV viewing area, was made.

    believe all people of faith are either murderers or lunatics who want to take
    control. It is time for us to have a broader perspective in conversations of faith.”

   Tom Jacobs, President, Iowa City Federation of Labor [Johnson and Washington
    Counties, Iowa], “The media tries to present labor leaders as... high paid people
    that . . . [live] off the fat of the hog, so to speak, but . . . we don't have any paid
    employees in . . . [my union] AFSCME local 12.
              We [the Iowa City Fed] represent several different kinds of unions and one
    of them is the IBEW that . . . [is not] getting too much publicity about trying to
    save their jobs with this public power initiative [a ballot proposition in the
    November 7 Iowa City election], and not getting too many guarantees that the 80
    employees will be able to keep their job if the public power initiative goes
              Mark Smith said . . . labor does get a token . . . representation [in the
    media on] Labor Day. And this Labor Day we got . . . three pictures of one of our
    members and her dog, and . . . another picture of somebody cooking. [But the
    article] didn't go into any of the . . . really political issues.”

   Bill Gluba, congressional candidate, Iowa’s 1st District, “[A]fter forty years of
    active involvement, former State Representative, State Senator, Chairman of the
    County Board of Supervisors, third largest county in the state . . . I think I come
    with some background and qualifications to speak about the media. And what I've
    seen used to be you could get on TV when you ran for public office. They would
    have public debates and discussions, candidates would air their views. You don't
    get that anymore! I ran for Congress last time. I went to Cedar Rapids on
    numerous occasions to the TV stations over there. They are the worst! Never!
    They cover two thirds of the [congressional] district: Clinton, Dubuque. Nada.
    Maybe a little bit [of coverage] just before the election. What they do want is your
    money! It's Christmas in September, October, and November for these TV
    stations. That's when they make their money! That's all they're interested in!”

   Jerry Walla, “Regarding television, our local TV prime time news on the
    commercial stations is about 10 minutes worth. That's 30 minutes minus the 10
    minutes for commercials, and minus another 10 minutes for sports and weather
    together. But what do we get with those 10 minutes? Typically, if we are lucky,
    maybe one story that has community impact and relevance. The rest of the 10
    minutes is either the not so current health feature, the murder of the day, how to
    avoid a scam or an occasional feel-good story, or, as just recently, the saga of the
    Davenport alderman, already resigned, arrested for OMVI, which we saw ad
    nauseam five days in a row. What I want to know is, ‘Where’s the beef?’ That is,
    where is the news that matters to the common good of our community? Where are
    the programs that we used to have in the 1970s that dealt with community issues
    and that commercial stations provided as a public service? I am not seeing it or
    hearing it on local commercial radio or local commercial television.”

         From Holly Hart, “Local coverage of events and political candidates is often thin
          and often seems to reflect the politics of the owners of the radio stations or
          newspaper. It's hard for candidates of non-mainstream parties to get airtime and
          many events are insufficiently covered. We often do not hear all sides on
          important local issues of development, zoning, taxation, personal liberties,
          policing, or homelessness.
                  Something that is following on this scary theme, [last year I personally]
          learned first hand the degree of obscurity into which critical news can fall. I was
          part of a [journalistic] effort that [produced a story that] made number three of
          Project Censored’s Top Ten list. This concerned anomalies in voting equipment in
          Ohio and New Mexico. I learned in a conference call, not [from the local news
          media], that some of the same anomalies that occurred in New Mexico also
          occurred right here, in Iowa. But I bet there are not five people in this room who
          knew [or now know] about it. This is not merely a disgrace, it is horrifying.”

Given KGAN-TV’s general failure to cover local issues it is not surprising to find that

this failure encompasses as well its lack of coverage of, and thereby recognition and

respect for, Iowa’s numerous minority populations – a valued diversity of which the

people of Iowa are rightfully proud. The state has a significant representation of

minorities identified by the U.S. Census Bureau – Hispanic, African-American, Asian,

American Indian, and so forth.115

          But the story, and the numbers, go well beyond that. Iowa has welcomed

immigrants from Southeast Asia, and is today receiving an increase in Hispanic and

Latino adults – and children, with the bilingual challenge they provide for the state’s

public schools. The seven villages dating from the 1855 settlement from Germany of the

“Community of True Inspiration,” known as the Amana Colonies (and a National

Historic Landmark) continue to function (and evolve). The Amish settlements around

   See U.S. Census Bureau, GCT-PL Race and Hispanic or Latino:2000, Geographic
Area Iowa – County, available as a link from The other examples subsequently
given can be easily confirmed with a Google search. And see Appendix B: Exhibits
(“Materials Regarding Alleged Racial Discrimination”).

Kalona, Iowa, provide a very successful example of alternative living, as do the

practitioners of transcendental meditation at the Maharishi University of Management in

Fairfield. The thriving Mesquakie settlement near Tama, Iowa, owned by the Indians, can

trace its remarkable history to the 1830s. In tiny Postville, Iowa, Orthodox Jews from the

Lubavich branch of Hasidism have moved in, established a kosher packing plant, and the

former residents now find themselves with many Hispanic neighbors as well – plus

Bosnian, Czech, Guatemalan, Kazak, Nigerian and Ukrainian, among others.

       Think of the stories these populations could provide! So the station’s

responsibility is not limited to its employment of women and minorities in executive and

on-air positions in compliance with the Commission’s Equal Employment Opportunity

standards. It includes, as well, not only the obligation to serve the needs and tastes of

Iowa’s various unique populations, but to provide its larger, majority audience with the

often moving and dramatic stories of their neighbors.

       C. KGAN-TV has an adverse impact on elected and other public officials

       KGAN-TV’s inadequate coverage of local news and local issues has a particularly

adverse impact on the ability of local public officials’ to do their jobs, and communicate

with their constituents about local matters of importance and subjects of legislation.116

       Typical of their concerns – and echoing the observations and concerns of many of

the ordinary citizens testifying at the October 5 “Town Meeting” – is this excerpt from

the declaration of Johnson County, Iowa, Board of Supervisors member, Rod Sullivan:

   See the numerous affidavits of members of the Iowa legislature, county boards of
supervisors, city councils, and school boards in Appendix A: Affidavits (“Public

       My ability to function effectively as a democratically elected public official is
       substantially impeded by KGAN-TV's failure to serve its viewing area, its
       failure to provide me and my constituents the quantity, quality and diversity of
       information and opinion necessary to a fully functioning democracy. Citizens,
       and often their elected officials as well (with whom I must work) rely on
       television – perhaps more than they should. But the reality is that newspaper
       readership is declining, and many individuals, for a variety of reasons, are
       disinclined to spend time with the Internet, or our first class research libraries. It
       has been said, "with great power goes great responsibility;" television has that
       power, and that responsibility, but KGAN-TV is failing to exercise it. As a
       result, even though Iowa has some of the best schools and highest educational
       levels in the country, participation in school board and other local elections
       sometimes involves less than 5 or 10 percent of eligible voters. Local forums for
       discussion of major issues are often poorly attended. Conversations with
       constituents often reflect their lack of knowledge, interest or caring about the
       major issues on which I need to have their input. 117

       This is not just a matter of the station’s failure to provide meaningful coverage of

the issues involved in local elections, as serious as that may be. It is, as explained above,

the failure of the station to present the information needed by a self-governing society

throughout the year.

       A related concern comes from those who participate in various academic studies,

think tanks, governmental and other task forces, dealing with challenges and

opportunities confronting the state and region. Illustrative is the example of the Iowa

Policy Project, located within the KGAN-TV viewing area, with offices in Iowa City and

Mt. Vernon. The Policy Project’s Mike Owen has prepared a short list of examples of the

dozens of issues largely-to-entirely ignored by KGAN-TV.118 The Des Moines Register’s

   Attachment B: Exhibits (“Transcript of October 5, 2005, Town Meeting on the Future
of Media”).
   Appendix B: Exhibits (Mike Owen, “Seeking Media Vigilance on Critical Iowa
Issues” (Iowa Policy Project, 2005)). See also Appendix A: Affidavits (“Declaration of
Mike Owen”).

political columnist, David Yepsen, has prepared a similar list in the context of the

forthcoming 2006 governor’s race in Iowa.119

       The results of this kind of often non-partisan, well-informed academic and

journalistic effort can make an enormous contribution to the public dialogue – but only if

the media will provide it to the public. Those working in these fields are especially

frustrated by the knowledge of what their work could contribute, but is unable to, because

of KGAN-TV’s shoddy performance.

       Note that, with each of these issues, whether the source is a newspaper, an

academic institution, the Policy Project or some other organization, the really tough,

time-consuming, expensive, investigative and research work has been done. The results

are handed to KGAN-TV on a platter. All it needs to do is prepare a documentary that

draws upon the work of others – often a multi-thousand-dollar product that is being

provided to the station for free. The station refuses to do even this much. Indeed, so far as

Petitioners are aware, it refuses to produce and broadcast any regularly scheduled

documentaries whatsoever.

   Attachment B: Exhibits (David Yepsen, Iowa’s Next Leader Needs to Address Tough
Issues, DES MOINES REGISTER, November 6, 2005). Yepsen details issues involving
“Economic Growth,” “Environment,” “Education,” “Social Issues,” “Civil Rights,”
“Debt,” and “Others.” KGAN-TV has given none of these issues the time and serious
treatment they would require in order for Iowa’s elected public officials, and their
constituents, even to be aware of them, let alone participate in their resolution.

 D. SBG contributed to the loss of local news and the broken pledge to the citizens and

                               television viewers in Dubuque, Iowa

            In the mid-1990s, Second Generation of Iowa, Ltd., owner of KFXA-TV in Cedar

Rapids, Iowa, purchased the Dubuque television station KDUB-TV, began its affiliation

with the Fox network, and changed its call letters to KFXB-TV (“Fox 40”).

            In 1995, KFXB-TV (in Dubuque) began simply re-broadcasting the programming

of its Cedar Rapids sister station, KFXA-TV, with the exception of locally-produced

Dubuque-area newscasts.

            By as early as 1997, KFXB-TV, Dubuque, discontinued its weekend local

newscasts. By 1999 it no longer replaced the newspersons who left the station.120

            In July, 2002, Sinclair Broadcast Group (owner of KGAN-TV, Cedar Rapids and

KDSM-TV, Des Moines) and Second Generation of Iowa formed a partnership. In

October, 2002, KFXB-TV announced that its nightly newscast from Dubuque would be

discontinued. It would be replaced by a “regional newscast” transmitted from KFXA-TV

in Cedar Rapids. This was said to be for reasons of "cost-efficiency.”121

            Dubuque residents expressed concern to the station over their feared loss of local

news and events coverage. The SBG-Second Generation management promised the

regional newscast would include coverage of Dubuque news and events.122 Joe Denk,

  M. D. Kittle, Ex-Dubuque TV reporters: End of local newscast will hurt area; Final
Fox 40 report: Some question how committed broadcast from Cedar Rapids will be to
Dubuque news, DUBUQUE TELEGRAPH HERALD, Oct. 26, 2002, at A1.
   Editorial, KFXB news gives Dubuque little reason to tune in ; Since the termination of
the local newscast, city coverage has been rare, DUBUQUE TELEGRAPH HERALD,
Nov. 5, 2003, at A4.

general manager of KFXA-TV/KFXB-TV, told the Dubuque Telegraph Herald that the

“Fox News at Nine” would include Dubuque stories, as well as news elsewhere in

Eastern Iowa.123 On October 25, 2002, the Dubuque television station KFXB-TV

concluded its final Dubuque-based newscast.124

            Since October, 2002, SBG has used the resources of KGAN-TV to create a

“regional” newscast that is then shown on KFXA-TV, KFXB-TV and KDSM-TV, as

well as KGAN-TV. The citizens of Dubuque have been left with a generic Sinclair

newscast that pays virtually no attention to stories of particular interest in Dubuque.125

            One year after the onset of the regional newscast from Sinclair’s KGAN-TV, the

Dubuque Telegraph Herald reported the findings of their monitoring of the 9 p.m.

newscasts on KFXA-TV/KFXB-TV (now simply KFXA-TV), as well as 10 p.m.

newscasts on KGAN-TV, KCRG-TV (Cedar Rapids) and KWWL-TV (Waterloo, Iowa)

during October. 6-10 and October 13-17, 2003.126

            During the first week, KFXA-TV/KFXB-TV had one story on the Iowa Racing

and Gaming Commission, which met in Dubuque to discuss state gambling; during the

   Kylie Greene, Dubuque coverage spotty on area TV news; A year after local Fox news
leaves, Waterloo station appears to cover Dubuque most, DUBUQUE TELEGRAPH
HERALD, Oct. 26, 2003, at A1.
  M. D. Kittle, Ex-Dubuque TV reporters: End of local newscast will hurt area; Final
Fox 40 report: Some question how committed broadcast from Cedar Rapids will be to
Dubuque news, DUBUQUE TELEGRAPH HERALD, Oct. 26, 2002, at A1.
   Editorial, KFXB news gives Dubuque little reason to tune in ; Since the termination of
the local newscast, city coverage has been rare, DUBUQUE TELEGRAPH HERALD,
Nov. 5, 2003, at A4.

second week, KFXA-TV/KFXB-TV mentioned Dubuque as one of several Iowa school

districts facing budget cuts. KGAN-TV had no Dubuque stories during the two-week

period. By contrast, KWWL-TV had at least one Dubuque story each night, and KCRG-

TV had five Dubuque stories during the two-week period.127

            Joe Denk, general manager of KFXA-TV/KFXB-TV, did not return the

newspaper’s phone calls concerning the stations' coverage.128

            The lack of concern by the Sinclair-Second Generation conglomerate for the

public interest of the citizens of the Dubuque area was summed up in an editorial of the

Telegraph Herald:

            KFXB could have been upfront, conceding that for financial reasons it would no
            longer cover the Dubuque market. Local viewers might have understood that
            business decision. But it failed to deliver on its modest promise to Dubuque. That
            is not surprising. At the end, KFXB treated its employees shabbily. Employees
            first learned of the change at the same time as viewers -- when their station aired a
            promotional announcement. …The result for Dubuque viewers has been anything
            but exciting. A Telegraph Herald analysis of two weeks of the station's newscasts
            revealed that ‘Fox News at Nine’ aired only one Dubuque-based story. That is not

              E. KGAN-TV’s signal is not received by many in the “viewing area”

            The most basic requirement of a licensee is to transmit a signal that can be

received by viewers in the coverage area. There have been numerous viewer complaints

   Kylie Greene, Dubuque coverage spotty on area TV news; A year after local Fox news
leaves, Waterloo station appears to cover Dubuque most, DUBUQUE TELEGRAPH
HERALD, Oct. 26, 2003, at A1.
   Editorial, KFXB news gives Dubuque little reason to tune in ; Since the termination of
the local newscast, city coverage has been rare, DUBUQUE TELEGRAPH HERALD,
Nov. 5, 2003, at A4.

regarding the poor quality, or absence, of KGAN-TV’s signal.130 Mediacom, the cable

television supplier in Iowa City (among many other communities in Iowa), rather than

picking up KGAN-TV’s signal off the air, now brings it to Iowa City with an optic fiber

connection – even though KGAN-TV’s tower is a mere 25 miles or so away! Even a

Cedar Rapids resident, who lives within 10 miles of the station, has trouble receiving

KGAN-TV’s signal.131 Obviously, KGAN-TV’s weak signal adversely affects those in

the community who cannot afford to subscribe to cable or satellite distribution and must

rely on “rabbit ears” or a rooftop antenna. KGAN-TV is effectively unavailable to many

of those people as a declaration of an Iowa City woman makes clear.132

                              F. Safety of the viewing public

          KGAN-TV’s weather coverage is very poor, and in times of emergency viewers

dependent upon KGAN-TV for information may be in physical danger. Dennis Roseman

recalls one instance in which the KGAN-TV’s viewing area was under a tornado

   See Appendix A: Affidavits (“Declaration of Richard J. Peterson); Appendix B:
Exhibits (“Rice, Williams Associates, “Survey of Mediacom Cable Subscribers for the
City of Iowa City, Iowa,”August 31, 2004”) and Appendix B: Exhibits (“Viewer
Reception Complaints”). The Rice, Williams Associates’ survey found that roughly 40%
of all complaints received regarding picture quality involved KGAN-TV’s signal. In
addition, KGAN-TV’s transmitter was operating at 40% of its authorized power for a
time during January 2005. See Appendix B: Exhibits (“2005 Transmitter Problems”). The
reasons for these problems were not disclosed in the public file.
      See Appendix A: Affidavits (“Declaration of George Anderson”).
   Appendix A: Affidavits (“Declaration of Lisa Schomberg Regarding KGAN-TV
Picture Quality”). The Supreme Court has recognized that protecting noncable
households from loss of regular television broadcasting service due to competition from
cable systems is an “important federal interest." Turner Broad. System, Inc. v. FCC, 512
U.S. 622, 663 (1994). Allowing KGAN-TV's license renewal will not protect non-cable
households from cable competition because KGAN-TV's weak signal makes it necessary
for many households to subscribe to cable or satellite in order to receive KGAN-TV's

warning; tornados had touched down locally. Other radio and television stations in the

area broke into regularly scheduled programming and were reporting the details of touch-

downs and providing safety suggestions to their audience members. KGAN-TV’s

coverage, warnings and advice to viewers consisted of nothing more than a slow-moving

crawl at the bottom of the screen listing the numerous counties under tornado watches

and tornado warnings.133

       During emergencies that threaten the public safety, such as tornados, floods or

terrorist attacks (there is a nuclear power plant within the viewing area), KGAN-TV is an

unreliable source of safety information and shows no signs of a willingness to take its

responsibilities in this regard more seriously in the future.

 G. SBG provides virtually no community interaction and actually prevents local staff

                           from interacting with the community

       That KGAN-TV, in Cedar Rapids, Iowa, is owned and operated by SBG from

Baltimore, Maryland, as one of its 60-some stations nationwide, is the source of many of

Petitioners’ concerns and complaints. It is also a single example, an illustration, of the

fact that the Commission’s relaxation of its ownership standards is not just an “inside the

beltway” ideological, political and policy debate. It has very real and adverse

consequences in large and small communities all across America – in this case, within

KGAN-TV’s viewing area.

   See Appendix A: Affidavits (“Declaration of Dennis Roseman”) for a detailed
description, along with comparison of KGAN-TV’s non-coverage with the more
adequate job done by the other Cedar Rapids station, KCRG-TV; Appendix A: Affidavits
(“Declaration of Aaron Wings”); Appendix B: Exhibits (“Viewer Weather Coverage

       Numerous examples of those consequences are spelled out throughout this

Petition and its accompanying affidavits,134 exhibits and studies.

       But the consequences Petitioners have experienced ought to have been predictable

even without all the evidence they provide.

        (1) A multi-station corporation, like those in other industries, will often choose a

top-down, hierarchical management structure. Necessarily, this means that decisions that

otherwise would be made locally – if a station were owned locally, or a distributed-

decision-making management model was used – have to be referred “to headquarters.” At

a minimum, this delays an individual station’s response to suggestions, requests and

complaints. At worst it often results in a total lack of response.

       (2) Even if SBG management wished it were otherwise, they cannot be in over 60

cities at once. They cannot “know” those communities and their people. But not all

management even wishes it were otherwise. They either don’t care, or are so

overwhelmed with the details of central management that they don’t have time to care in

the way that local owners really have to if they are to continue to live in their community

of license. Indeed, that was one of the reasons for the Commission’s emphasis, at one

time, on what it called “integration of ownership and management.”

       (3) When multi-station corporations are publicly held, the focus shifts to stock

prices. Stock prices are driven by profits. And not just profits but ever-increasing profits.

Which means that even under the best of economic conditions, but especially when an

   See, e.g., the tale of repeated frustration endured by Petitioner Trish Nelson in her
efforts to get meetings, and responses of some kind, from SBG and KGAN-TV
personnel. Appendix A: Affidavits (“Affidavit of Trish Nelson”); Appendix A: Affidavits
(“Declaration of Dr. Theodore J. Remington). See also Appendix A: Affidavits
(“Affidavit of Eileen Finnegan”) and Appendix A: Affidavits (“Declaration of Amanda
Ballantyne”) for a description of similar ordeals.

increase in revenues is hard to come by, the easiest way to increase profits (and the stock

price) is to cut costs. Given the percentage of costs represented by salaries, that means

cutting staff, including news staff – and the most highly qualified (and highly paid)


        KGAN staff routinely refers matters to SBG/Baltimore instead of responding


        Here is a recent example.

        On October 5, 2005, a remarkable event occurred in Iowa City, Iowa. Some 20

organizations – educational, religious, community – joined together to sponsor a “Town

Meeting” regarding the performance of local media, and the consequences of the

Commission’s media consolidation policies. It was the first time such a meeting had ever

been held in Eastern Iowa. It was one of the largest public meetings ever held on any

topic, with a standing-room only audience that packed a large University of Iowa

auditorium. Individuals had chartered buses from as far away as the Quad Cities to be

there. (The Quad Cities are about 70 miles from Iowa City.) Moreover, it was to be

addressed by, and constitute a “hearing” for FCC Commissioners Michael Copps and

Jonathan Adelstein.135 Those who testified that evening were sufficiently intent on being

heard that they patiently waited their turn, and the meeting ran from 7:00 p.m. until after

11:00 p.m. – which is a late hour for the Midwest.

        An effort was made by the organizers to be inclusive with the invitations. (Indeed,

in addition to the invitations, the meeting was heavily advertised, and otherwise

  A last minute family emergency prevented the participation of Commissioner Michael
Copps, who was, however, represented by his assistant Jordan Goldstein.

promoted, as open to the public.) All segments of the communities were invited and

attended: conservatives and liberals, Chamber of Commerce representatives along with

trade unions, religious representatives from a range of denominations – and some radio

and television broadcasters.

          A special invitation was extended to KGAN-TV management. The response?

They couldn’t say. They would have to check with Baltimore. KGAN-TV’s officers had

not even been delegated sufficient authority from SBG’s Baltimore management to make

a decision for themselves about attending a meeting with the community! Worse,

apparently Baltimore forbid them to attend. In any event, no one from SBG or KGAN-

TV chose to show up the evening of October 5, 2005.136

          It is hard to imagine a more arrogant snubbing of a licensee’s audience and that

audience’s genuine concerns. And yet one occurred the evening of November 30, 2005.

          A representative group of Iowa’s elected public officials (legislature, county

board of supervisors, city council, and school board) – including those submitting

declarations with this petition – invited local media (print and broadcast) to a

conversation in Cedar Rapids (KGAN-TV’s city of license). It was intended, and turned

out, to be a non-confrontational dialogue regarding the concerns and desires of both

officials and media representatives. It was well attended. There was representation from

local and regional radio stations, and from Cedar Rapids’ station KCRG-TV9 (as well as

its sister newspaper, The Gazette). KGAN-TV was, once again, absent. It would not even

participate in a non-confrontational conversation with elected public officials, at a

      See Appendix A: Affidavits (“Declaration of Amanda Ballantyne”).

meeting to which it had been invited, a meeting that deliberately held at its home location

in hopes of easing, and encouraging, attendance by KGAN-TV representatives as well as

the other Cedar Rapids stations.137

                             H. The lack of viewpoint balance

       Mark Hyman is an SBG corporate executive located in Baltimore, Maryland. If he

has had any training and experience as a journalist he is at least not a household name

among nationally known journalists. Thus, SBG’s insistence that KGAN-TV devote

precious time during its “local news” to this six-day-a-week commentary is offensive and

inconsistent with the station’s public interest responsibilities from a number of


       Especially given KGAN-TV’s failure to cover local public policy issues and

news, the Hyman commentary is a misuse of the very limited, and valuable, time

available for that essential purpose.138

       Because the commentaries are presumably fed to all the SBG stations, whatever

else may be said of them, they are clearly not “local.”

       The subject matter, and point of view, reflects both the SBG’s partisan ideology

and, more seriously, its willingness to use its media power to promote its owners’

    See Appendix A: Affidavits (“Declaration of Joe Bolkcom” Note that there are two
declarations from Joe Bolkcom; this references the one about the November 30, 2005,
meeting.) See also a published report by GAZETTE editor Mark Bowden as additional
confirmation that the meeting was held and that KGAN-TV was not represented. Mark
Bowden, Stirring Up Interest in Government, THE GAZETTE, December 5, 2005, p.
  See Appendix A: Affidavits (“Declaration of Mike Owen”) for commentary on how
KGAN-TV squanders valuable air time during its local news programs.

personal interests to the exclusion of the diversity needed in the public interest.139 Even

SBG’s shareholders’ interests come second to SBG’s dedication to promoting a political

agenda. This poor business management led Business Week to name SBG CEO David

Smith as one of the nation’s worst business managers of 2004.140

       Although many of the commentaries are insulting, disrespectful of the audience,

unnecessarily confrontational, and in poor taste,141 Petitioners recognize, as they must,

that these are not alone grounds for insisting the commentaries cease. What is

problematical about them, however, is that KGAN-TV offers no meaningful opportunity

for the presentation of either other views or a rebuttal.

       Petitioners are aware that such commentaries are not violations of Section 315,

and that the Commission has repealed the Fairness Doctrine, thus depriving the station’s

audience of the opportunity to file Fairness complaints as such. However, for the reasons

explained, Petitioners urge that this practice of SBG is nonetheless a violation of KGAN-

    The KGAN-TV public file, like the FCC’s files, are full of complaints from viewers
regarding the obviously partisan desire of SBG to use the propaganda “swift boat” film to
attack the Democratic Party’s 2004 presidential candidate, Senator John Kerry, and
refusal to run the ABC “Nightline” program (on its ABC affiliates). Host Ted Koppel
indicated he was going to honor the American soldiers killed in Iraq by showing their
pictures – a gesture SBG executives apparently thought might adversely reflect on the
war itself, and by implication President George W. Bush as well. See Appendix A:
Affidavits (“Declarations of Sue Astley, Michael Carberry, Deborah Danin, Eileen
Finnegan, Brian Flaherty, Jacqueline Martin, Doug Peters, Richard Peterson, Dennis
Roseman, Robin Roseman, Mary Rowland, Abbie Swanson, and Arron Wings”).
   Appendix B: Exhibits (“Publications About SBG,” “The Best and Worst Managers of
2004 – The Worst Managers”).
    See, e.g., in Section II.B., above, the discussion of the mean-spirited, defamatory
attack by Mark Hyman on a KGAN-TV viewer, Ted Remington.

TV’s public interest obligations and an appropriate consideration in the Commission’s

evaluation of the station’s application for license renewal.

                 I. SBG’s business model does not serve the public interest

          SBG has cut costs; frozen employee pay and new hires; curtailed equipment

purchases and other investment. As it cuts, or fails to replace, staff, this has necessarily

reduced its ability to provide meaningful coverage of local news.142

          Petitioners recognize, as they must, that commercial broadcasting is, by

definition, a for-profit enterprise. But SBG’s profits are more than adequate; they are near

the top of those of the broadcasting industry.143 Thus, SBG’s ample profit margins make

two points: (1) SBG did not have to make the cuts that it did in order to turn a profit, and

(2) that being the case, not only did the cuts reduce its ability to serve the public interest,

they also represent the disdain in which SBG’s management holds those public interest

   See Appendix B: Exhibits (“Transcript of October 5, 2005 Town Meeting,” testimony
of Amy Johnson Boyle). See note 1, supra, for qualifications on the use of this material.
This deplorable example of television broadcasting at its worst is made the more poignant
by the contrast with what KGAN-TV’s studio, transmitter and antenna used to provide its
Iowa viewers when it was operated as WMT-TV, or even its early years as KGAN-TV –
before it was transferred to Sinclair Broadcast Group. WMT-TV had a large staff by
small-market television standards, a staff involved in the community, providing
children’s programming, noon news, and public affairs programming. WMT-TV was
Eastern Iowa’s good neighbor, telling its viewers what they needed to know, and
demonstrating that its owners really cared about the people in its viewing area. It was
nationally recognized as an outstanding station. See Appendix B: Exhibits (“Transcript of
October 5, 2005 Town Meeting,” testimony of Rod Sullivan). For a detailed description
of SBG’s business practices nationally, and how KGAN-TV has been affected
specifically by these practices, see Appendix B: Exhibits (Charles A. Miller, “Sinclair
and television news: Reduction, centralization, and loss of local autonomy”). See also
Appendix B: Exhibits (“Viewer Complaints About Employee Turnover”).

      See Appendix B: Exhibits (“SBG Profits”).

responsibilities, their willingness to put the goal of constantly escalating profits

(regardless of corporate need) over the goal of public service.

       Gil Cranberg, former editorial writer and editorial page editor of Iowa’s largest

newspaper, The Des Moines Register, author of numerous books about mass media, and

former University of Iowa professor of journalism, witnessed Sinclair’s business model at

work in Des Moines. At the October 5, 2005, “Town Meeting,” he criticized Sinclair for

the disservice it does to Des Moines:

       Des Moines also is blessed with a TV station owned by Sinclair Broadcasting, one
       of the country's largest owners of TV stations. That company's CEO boasted to
       stockholders recently, “We continue to control and reduce costs by eliminating
       non-core expenses and closing unprofitable news programs in St. Louis and
       Greensboro, North Carolina. Our fiscal prudence and top line revenue strategy
       allowed us to hold margins at 40% and once again report some of the highest
       margins in the industry.”
                You heard that right. A profit margin of 40% and no news program in a
       major market like St. Louis. Actually, the folks in St. Louis may be fortunate.
       Sinclair's so-called news program in Des Moines, to be candid about it, is terrible.
       It doesn't even originate in Des Moines! It comes from Cedar Rapids where it is
       also shown. It consists primarily of ads and weather. Sinclair cites, in its public
       file in Des Moines, its showing of such films as Tequila Sunrise and Silence of the
       Lambs as evidence of how it meets its public service commitment to enable the
       community to cope with drugs and crime. I am not making that up.144

    Gil Cranberg is not a member of Iowans for Better Local Television, is not otherwise
a petitioner, does not endorse this petition, did not encourage it or participate in any way
in its preparation, has not prepared the excerpts from his statement used herein, and takes
no position on the renewal of license of KGAN-TV. His testimony is available as
Appendix B: Exhibits (“Transcript of October 5, 2005, Town Meeting”) and online as
Free Press, "Town Meeting on the Future of Media" (Iowa City, Iowa, October 5, 2005), (last visited
December 9, 2005)..

If that is not enough, Petitioners believe that the story of Amy Johnson Boyle, below,

should be enough, standing alone, to cause the Commission pause about its ownership

standards in general and the renewal of this Sinclair station’s license in particular.145

       Ms. Boyle is a trained journalist, with a B.A. in English, and a masters degree in

journalism from the Medill School of Journalism at Northwestern University. She went to

work at KGAN-TV long before it was acquired by SBG and worked her way up from

reporter to the evening anchor position she held for 10 years.

       Her experience working for Sinclair ultimately caused her to quit her profession.

(She now works for the Cedar Rapids Chamber of Commerce.) What a loss – for her, for

KGAN-TV’s viewers, for the journalism profession. Hers is but one of the many stories

of the human tragedy that has resulted from the accumulations of stations under a single

ownership, companies that turn what has always been a business into something that is

nothing but a business.

       Here is an excerpt from her extemporaneous testimony at the October 5, 2005,

“Town Meeting on the Future of Media”:

    While she stands by her testimony, Ms. Boyle is not a member of Iowans for Better
Local Television, is not otherwise a petitioner, does not endorse this petition, did not
encourage it or participate in any way in its preparation, has not prepared the excerpts
from her statement used herein, and takes no position on the renewal of license of her
former employer, KGAN-TV. For Ms. Boyle’s impeccable credentials and experience as
a journalist, and a fuller excerpt from her October 5, 2005, statement, see text
immediately below. A complete transcript of the Town Meeting, including Ms. Boyle’s
testimony, is available as Appendix B: Exhibits (“Transcript of October 5, 2005, Town
Meeting”) and online as Free Press, "Town Meeting on the Future of Media" (Iowa City,
Iowa, October 5, 2005), (last visited
December 9, 2005)..

                     During my last couple of years something tragic happened to KGAN. . . .
            It was purchased by Sinclair Broadcasting. I knew the minute that happened . . .
            the ground was shifting, I could sense everything changing.
                     We had all heard the stories, that they didn't have a commitment to news,
            they were closing newsrooms, they had their emphasis on syndicated
            programming, infomercials, they didn't want to pay overhead.
                     They started to cut members of our staff.
            And suddenly everything I had been taught as a journalist was slipping away from
            me. We didn't have enough people to cover stories. We couldn't hire people with
            the kind of experience that was necessary to cover news because Sinclair would
            not pay them. The morale in the building was terrible. We were not treated well as
                     And the kind of information being disseminated to the public was, quite
            frankly, embarrassing.
                     I, as a trained journalist, could not in good faith and good conscience work
            for a company like that. And so I left, at the peak of my broadcasting career I left,
            with a whole lot left to offer. . . . I left at 38.
                     I left to go to the other side of the fence where it was equally frustrating
            trying to get the attention of media outlets that were owned by, especially, the
            large conglomerates, the Clear Channels, the Sinclairs. It was incredibly difficult
            to get them – and still is – to cover important issues in the community.
                     The business community has an awful lot of very vital issues that are key
            to the lifeblood of our area and, honest to goodness, I get responses from . . . large
            conglomerates like: ‘We don't have the staff to cover it. We have one reporter
            today.’ Or the reporter that shows up has just started and, God bless them, they
            don't know the first thing about covering a story. They don't know about being
            fair, accurate, unbiased, multi-sourced stories.
                     It is extremely frustrating to get good stories, important stories for you, the
            citizens, covered. And it's just tragic that this whole situation has unraveled to this
            point. Good people . . . have left Eastern Iowa broadcast entities because of this
            situation. And the news that you, the viewers, the listeners, get, is flawed. It's not
            unbiased, it's not always accurate, it's not complete.
                     Commissioners, please, please, please pay attention because I worry, if
            this situation continues, what kind of information is going to be disseminated and
            how little of it there will be.”146

What more need be said?147

   What more need be said? Maybe something from KGAN-TV’s news director, Rod
Peterson? In an email dated July 19, 2005, Rod Peterson wrote to a viewer to apologize
for the outdated news content on KGAN-TV’s website. He explained that the station was
so short staffed that it was unable to keep the website current. See Appendix B: Exhibits
(“Rod Peterson Email from July 19, 2005”).

                             J. Amount of paid programming

       Although the Commission no longer prohibits licensees to relinquish

responsibility for programming, and permits them to sell blocks of time for program-

length commercials, there comes a point at which so much time is sold that it virtually

guarantees there will be an inadequate amount left for local news, public affairs,

documentaries or discussion programs. Petitioners believe that KGAN-TV has long since

passed that point and has thereby further failed to meet its public interest obligations.148

                               K. General viewer comments

       KGAN-TV’s viewer comment file contains hundreds of complaints from viewers

on many issues. Most of these comments are negative.149

       During the fall of 2005 Petitioners made a minimalist effort to circulate petitions

calling for a FCC hearing on KGAN-TV’s performance. About that time Petitioners also

included on their Web site an opportunity for visitors to that site to “sign” such a petition.

Although those individuals are not signatories to this Petition to Deny as such, they

certainly represent the tip of an iceberg of significant evidence that there are a substantial

number of additional KGAN-TV viewers who are sufficiently dissatisfied with the

station’s performance to support the notion of the FCC holding a hearing to review

   See Appendix B: Exhibits (KGAN-TVs Program Schedule) for the amount of paid
programming KGAN-TV typically airs, and the ratio of the combined time devoted to
paid programming plus time when the station is dark to the amount of time dedicated to
local news.
   See Appendix B: Exhibits (“Viewer Complaints”); Appendix A: Affidavits
(“Declaration of Dylan Thomas”).

KGAN-TV’s performance at this time. Petitioners have attached to this Petition a list of

the names of those individuals.150

                                     III. Character Issues

          The Commission, in granting license renewals, considers whether the applicant

possesses “character” consistent with the public interest responsibilities of a licensee.151

Petitioners believe that SBG, and its principals, do not possess the character the

Commission requires of its licensees.

          There are licensees that do an exemplary job of broadcasting in the public interest.

Others make some effort, but their performance is mediocre. The effort of others is

somewhere between feeble and none at all. Sadly, Petitioners believe that among those

three categories SBG and KGAN-TV would have to be placed in the last.

          And that would be the end of the matter but for the fact that SBG seems have

created yet a fourth category: stations that subtract, rather than add to the sum total of

broadcasting’s contribution to America; broadcasters who, as Senator John McCain has

observed about SBG,152 not only fail to use their power to serve the public interest, but

who are seemingly quite willing to abuse that power in their own self-serving interest. It

is a category the Commission’s predecessor, the Radio Commission, recognized in its

      See Appendix B: Exhibits (“Signature Petition”).
   “All applications for station licenses, or modifications or renewals thereof, shall set
forth such facts as the Commission by regulation may prescribe as to the citizenship,
character, and financial, technical, and other qualifications of the applicant to operate the
station . . .." 47 U.S.C. § 308(b) (2000).
   See Appendix B: Exhibits (“Press Release from Senator John McCain Regarding
SBG”) for a letter written by Senator John McCain in which he describes SBG’s actions
as a broadcaster as irresponsible, misguided, unpatriotic and a gross disservice to the

earliest days as grounds for denial of license renewal, in decisions upheld by the


        It appears that SBG may have lied to the Commission when it promised to keep

KDSM-TV’s and KGAN-TV’s staff separate, and that it has violated Commission

regulations in the past. 154 This does not bode well for the probability that SBG will deal

honestly with the Commission in the future.155 But those matters have already been


        In addition, SBG not only fails to serve the public interest and violates

Commission regulations, it regularly misuses its broadcast stations for the self-serving

   See KFKB v. Federal Radio Comm’n, 47 F.2d 670 (D.C. Cir. 1931) (upholding
Commission’s denial of license renewal to Dr. J.R. Brinkley who had used the station to
dispense health advice which included sale of his own questionable “remedies”); Trinity
Methodist Church, South v. Federal Radio Comm’n, 62 F.2d 850 (D.C. Cir. 1932), cert.
den., 288 U.S. 599 (1933) (upholding Commission’s denial of license renewal to minister
Dr. Shuler, who used station to defame and otherwise attack various religions, labor
unions, and government officials, saying that to permit broadcasters to use stations to
“inspire political distrust and civic discord . . . and to be answerable to slander only at the
instance of the one offended” would make of broadcasting “a scourge and the nation a
theater for the display of individual passions and the collusion of personal interests . . .”).
   The Commission considers “traits which are predictive of an applicant's propensity to
deal honestly with the Commission and comply with the Communications Act or the
Commissions rules or policies.” Character Qualifications In Broadcast Licensing, 102
F.C.C.2d 1179 (1965). As mentioned in this petition, KGAN-TV is in violation of many
rules, including the rules regarding duopoly, children’s educational programming, digital
television transmission, the keeping of a public file, and indecency. In addition to
KGAN-TV, SBG has violated rules in the operation of its other stations. See, e.g., 16
FCC Rcd. 22,236 (2001).
   Petitioners recognize that the Commission has narrowly defined “character” and no
longer finds disqualifying mere indictments prior to conviction or convictions for crimes
not necessarily related to broadcaster performance. Petitioners nonetheless believe that
the Commission may want to at least be aware that both broadcasting-relevant
indictments and less relevant convictions are present in the character records of SBG

purposes of its owners. It has used them to strategically attack individuals,156 influence

elections,157 and in one instance to serve a sentence imposed on an SBG principal for a

misdemeanor conviction.158

          While not yet a conviction, there is a pending legal action against SBG principals

concerning alleged racial discrimination in violation of the 1968 Fair Housing Act.159 If

the allegations are found to be true, Petitioners believe that such discrimination reflects

negatively upon the ability of SBG to fulfill its Equal Employment Opportunity

obligations at its licensed stations, including KGAN-TV.

    See Appendix A: Affidavits (“Declaration of Dr. Theodore J. Remington”), for a
description of how SBG apparently smeared Dr. Remington for running a blog called
“The Counterpoint” and for comments about SBG Dr. Remington made on a radio
program. Dr. Remington’s declaration also mentions one other college professor SBG
smeared; Appendix B: Exhibits (“Publications About SBG”) for descriptions of attacks
on Kathleen Kennedy Townsend, Jon Leiberman, Israel, Howard Dean, John Kerry, Ted
Koppel and Peter Jennings. Many of these attacks would have triggered the provisions of
the personal attack rule had this rule still been in effect. Petitioners have found no
evidence that KGAN-TV or SBG has allowed any time for a meaningful rebuttal by those
they have attacked. The Kathleen Kennedy Townsend, John Kerry, and Howard Dean
attacks also constituted editorial endorsements that would have triggered the political
editorial rule. To Petitioners’ knowledge SBG allowed no meaningful opportunity for the
candidates to respond.
   See Appendix B: Exhibits (“Stolen Honor Materials”) for letters and email KGAN-TV
received that criticize the station for attempting to influence the 2004 presidential
election, and see Appendix B: Exhibits (“Publications About SBG”) for explanations and
commentary regarding SBG’s attempts to smear presidential candidate John Kerry
shortly before the 2004 presidential election and how SBG used its Baltimore station to
smear Maryland gubernatorial candidate Kathleen Kennedy Townsend.
   See Appendix B: Exhibits (“Publications about SBG”) for articles describing how
David Smith, a principal of SBG, was convicted of a misdemeanor for solicitation of
prostitution and, instead of serving his community service sentence himself, forced the
employees of SBG station WBFF-TV in Baltimore to serve it for him by producing and
broadcasting public service announcements and reports on the Baltimore drug court.
      See Appendix B: Exhibits (“Materials Regarding Alleged Racial Discrimination”).

          Petitioners contend that this behavior, and these uses of SBG stations, are obvious

violations of the public interest, and that there has been nothing in the behavior of SBG

management, or KGAN-TV’s programming, to indicate that if the license is renewed the

station will not continue to be used in accord with SBG’s past pattern of abuse.

               Conclusion: KGAN-TV’s License Renewal Should be Denied

          Petitioners respectfully submit this petition to deny the license renewal of

television station KGAN-TV [FCC Facility ID Number 25685], located in Cedar Rapids,

Iowa, which is licensed to Sinclair Broadcast Group, Inc (SBG), headquartered in

Baltimore, Maryland.

          KGAN-TV’s failure to perform in accordance with the general “public interest”

standard for license renewal,160 as detailed at length herein, would be reason enough for

the Commission to exercise its discretion to set the station’s license renewal application

for hearing. However, there are as well numerous “substantial and material question[s] of

fact” of sufficient significance to trigger the requirement that when there are such

questions the Commission “shall formally designate the application for hearing . . ..”

(emphasis supplied).161

          There are clear substantial and material questions of fact regarding KGAN-TV’s

compliance with each of the three standards for renewal set forth in Section 309(k)(1).162

      47 U.S.C. §§ 309(a) and (k) (2000).
    “If . . . a substantial and material question of fact is presented . . . it [the Commission]
shall formally designate the application for hearing . . ..” (emphasis supplied). 47 U.S.C.
§ 309 (e) (2000). (This section applies because KGAN-TV broadcasts a single digital
signal. Before broadcasting a digital signal KGAN-TV broadcast an analog signal and the
identical provisions of Section 309(d) applied.)
      See note 4, supra.

Petitioners contend that KGAN-TV has in fact violated each of them. Petitioners

respectfully request that the Commission hold the hearing contemplated by Section

309(k)(2) and deny KGAN-TV’s application for license renewal. Alternatively,

Petitioners respectfully request that, if the Commission is unwilling to deny the renewal,

it issue a conditional or short-term renewal that will enable Petitioners to monitor

KGAN-TV’s compliance with the Commission’s conditions, rules and regulations.163

Respectfully submitted,

                       Iowans for Better Local Television
                       Trish Nelson, Chair
                       Iowans for Better Local Television
                       917 Wylde Green Road
                       Iowa City, IA 52246

                       IBLTV Steering Committee: George Anderson, Sue Astley,
                       Ellen Ballas, Joe Barrash, Anthony Buhr, Eileen Finnegan, Abigail
                       Gierke, Charles Miller, Trish Nelson, Richard Peterson, Dennis
                       Roseman, Robin Roseman, David Rust, Jesse Tangkhpanya, Arron

Andrew J. Schwartzman
Media Access Project
1625 K Street, Suite 1000
Washington DC 20006

               Of Counsel164
                                                                     December 23, 2005

   47 U.S.C. § 309(k)(2) (2000). Subsection (2) allows the Commission, after a finding
that subsection (1) has not been met, to fashion appropriate terms and conditions, and
specifically mentions a short term renewal as an appropriate condition.
   As explained in the opening section headed, “Petitioners Have Standing,” Andrew J.
Schwartzman is not representing IBLTV as counsel. He did kindly agree to look over this
Petition after it was drafted, made some suggestions, and provided guidance to IBLTV
regarding Commission procedures for filing, for all of which IBLTV is grateful. Of
course, any errors in the Petition are the responsibility of IBLTV.

                            CERTIFICATE OF SERVICE

I, Trish Nelson, certify that (a) on the 22nd day of December 2005, I caused to be served

upon Mike Sullivan, Station Manager, KGAN-TV, by hand, a copy of this petition and its

appendices, and that (b) on the 23rd day of December 2005, I caused this slightly

amended copy of this petition to be sent to him by mail in hard copy as well as by email,

and that courtesy copies of the petition were sent by email to KGAN-TV’s attorney of

record in this proceeding, Kathryn Schmeltzer, the FCC Commissioners, and Donna

Gregg, Chief, FCC Media Bureau, and Barbara Kreisman, Chief, FCC Video Division,

Media Bureau, in addition to the requisite one original and four copies of the petition and

appendices in hard copy to be delivered to the FCC.

Mike Sullivan, Station Manager               Kathryn Schmeltzer
KGAN-TV                                      Pillsbury Winthrop Shaw Pittman
600 Old Marion Road NE                       2300 N Street, NW
Cedar Rapids, Iowa 52402                     Washington DC 20037-1128

                                             Trish Nelson

December 23, 2005                            Chair, IBLTV

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