FCC sides with WHDD in complaint from Region 1 Schools administrator

Monday, April 2, 2012

By REGISTER CITIZEN STAFF

The Federal Communications Commission on March 30 sided with Sharon-based WHDD radio and its co-founder, Marshall Miles, in a complaint filed by Region 1 Schools Assistant Superintendent Diane Goncalves.

“This was an attempt by the Region 1 administration to bully,” Miles said in a phone interview Monday afternoon. “They might be able to get away with it in their own school system, but they’re not going to bully us.”

In the complaint, filed on December 5, 2011, Goncalves contended that on multiple occasions Miles broadcast on-air endorsements of specific candidates running for public office and also criticized specific members of the Region 1 Board of Education. She contended that such action were a violation of the Communications Act of 1934, and specifically Section 399 of that act. That section specifically states, “No non-commercial educational broadcasting station may support or oppose any candidate for public office.”

On January 13, Miles filed opposition to the complaint by Goncalves arguing that the specific section cited in Goncalves complaint addresses endorsements or opposition by the station itself. Miles counter-argued that his on-air endorsements stated at the beginning and at the end that the endorsements were his personal opinion and did not reflect that of the management, underwriters, staff or WHDD. He cited legal precedent to back his argument.

Gonclaves responded to Miles’ opposition with confirmation that he did use a disclaimer of personal opinion to accompany the endorsements, but that they came only at the end. Additionally, she said on the station’s most recent ownership report that the stations officers are Miles and two appointees. She argued that Miles involvement in the station equated to him being a spokesman for the station as an entity.

The FCC letter from Mark L. Berlin, Policy Division of the Media Bureau, clearly sided with Miles on the issue of criticism of school board members. The letter states, “At the outset, Ms. Goncalves’ contention the station criticized various members of the Region 1 Board of Education on the air is not prohibited by any law or policy.”

The letter goes on to cite a 1973 opinion on Section 399, stating, “…we concluded that it would be an unnecessarily broad construction of Section 399 to prevent all personal expression of views on public issues by employees of a noncommercial educational broadcast station.”

On the issue of endorsements, the letter concluded, “We also believe that your endorsement of certain school board candidates on the air was permissible – as long as you clearly indicated that it was your personal opinion and not that of the station. Section 399 applies only to formal station support or opposition of a candidate for public office, and you should take care in the future that your personal views over the air continue to be clearly labeled as such.”

Miles said the word ‘continue’ in that last sentence adds validity to what he has been doing all along. “The FCC, with that one word, validated what we’ve been doing and said we’re following the rules,” he said.

He added that the decision came as no surprise, but it came at a cost.

“This was a free speech issue,” Miles said. “I’m not surprised at the decision because the FCC’s rules clearly state that employees or hosts at independent, not-for-profit stations can make personal opinion statements. But the ruling came at a cost to us. We had to hire a lawyer to fight this.”