In Re Application of SONDERLING BROADCASTING CORP., NEW
YORK, N.Y.
For Renewal of License of Station WWRL, New York, N.Y.
BR-271
FEDERAL
COMMUNICATIONS COMMISSION
29
F.C.C.2d 866
RELEASE-NUMBER: FCC 71-539
MAY 19, 1971
OPINION:
[*866] GENTLEMEN: The Commission
has had under consideration the report of an inquiry by its staff concerning
the broadcast of the programs of the Reverend James Lofton, Jr., by Radio
Station WWRL, New York, New York, and your application (BR-271) for the renewal
of the license for that station.
The staff's inquiry established that
Lofton's programs were carried on WWRL from mid-1965 until December 2, 1969,
with the possible exception of a period of about six weeks in 1966 during which
Lofton was in prison. This imprisonment resulted from Lofton's violation
of the terms of a two-year period of probation to which he had been sentenced
by a United States District Court in Detroit, Michigan. This sentence, in
turn, had resulted from Lofton's conviction, in 1964, of using mail and wire
communication to defraud.
Commission investigation disclosed
that the revocation of Lofton's probation was based in part upon information
furnished by Postal Inspector Karl Fein who visited WWRL on March 31,
1966. During that visit, Fein mentioned that Lofton had been convicted of
mail fraud and that he was then being investigated for the same offense.
Copies of station financial records and of portions of Lofton's tape recorded
programs were requested by Fein and furnished by station personnel.
In previous correspondence we
advised you of information concerning Lofton's church services, his use of the
mails and his broadcasts on WWRL. The facts uncovered by the Commission's
investigation indicate that Lofton utilized his broadcasts as an element in a
scheme to solicit money from his audience in return for purported tips on the
numbers game. This was generally done in the following two ways: by
urging his listeners to send donations by mail in return for financial
"blessings" which many in his audience would understand were to be in
form of tips on the numbers, and by urging attendance at religious services
where those making donations would similarly be given tips. The tips were
customarily given in the form of three-dight Biblical references to chapter and
verse or through words which constituted "dreambook" references to
such three-digit numbers. The Commission considers the use of a broadcast
station to implement a scheme to solicit [*867] money for purported
tips on winning numbers in the illegal numbers game to be seriously
inconsistent with operation in the public interest. Although the licensee
states that it was not aware of any improper practices by Lofton, monitoring of
Lofton's broadcasts by station personnel should have alerted management to the
need for a careful inquiry into his activities. Additionally, such an
inquiry should have been precipitated by statements made by Postal Inspector
Fein to WWRL station personnel on the occasion of his visit to the station on
March 31, 1966. No such inquiry appears to have been made prior to the
Commission's investigation into this matter.
Commission investigators also noted
that frequently the programs of Lofton and other religious broadcasters on WWRL
were not accompanied by the sponsorship identification announcement required by
Section 317 of the Communications Act and Section 73.119 of the Commission's
Rules.
The Commission has determined to
grant renewal of the station's license for a period expiring on June 1,
1972. Although, by coincidence, the renewed license will expire at a time
when other New York licenses expire, it is to be considered as a short-term
renewal, in view of the facts set forth above regarding the licensee's
operation of the station. In arriving at this determination, we have
considered your representations with respect to measures taken to prevent
abuses of the type found in our inquiry, the prompt removal of Lofton from the
air when the Commission's investigation brought information concerning his
background and current activities to the attention of the licensee, and the
absence of probative evidence of fraudulent practices by other ministers whose
programs were carried by the station. Furthermore, we have noted that
monitoring of Lofton's programs failed to disclose any explicit mention of
betting odds or three-digit scripture references corresponding to predicted
winning numbers. Were it not for these facts, the Commission's
investigation might have culminated in a totally different result. In
this regard, you are advised that recurrence of the conditions uncovered by the
Commission's investigation could be the basis for denial of license renewal,
license revocation, and/or monetary forfeiture.
Commissioners Bartley and Robert E.
Lee absent; Commissioner Johnson dissented and issued
the attached statement.
BY
DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
Pseudo-Religious Broadcasts of
Numbers Tips
[In re renewal of license of WWRL,
New York, N.Y.]
The Commission today renews the
license of radio station WWRL, New York, New York, for a one-year term expiring
on June 1, 1972 (rather than a regular three-year term), because of its
violations of some FCC regulations. I believe that the violations were
such as to warrant a hearing looking to license revocation, and therefore
dissent.
[*868] The "short
term renewal" has always struck me as a rather bizarre sanction under the
best of circumstances. It generally carries no financial consequences
whatsoever. The station is not off the air for an hour. The profits
continue to roll in.
In this instance, June 1, 1972, is
the date when its three year license would expire anyway. Thus, the
renewal is "to be considered" as a short-term renewal. Needless
to say, if "short-term" renewals are to have any effect whatsoever
the date when they expire must at least be earlier than it would otherwise have
been.
Be that as it may, this
"sanction" was imposed as a result of a Commission investigation into
WWRL's broadcast of the programs of the Reverend James Lofton, Jr. The
majority opinion speaks for itself:
The facts uncovered by the
Commission's investigation indicate that Lofton utilized his broadcasts as an
important element in a scheme to solicit money from his audience in return for
purported tips on the numbers game. This was generally done in the
following two ways: by urging his listeners to send donations by mail in return
for financial "blessings" which many in his audience would understand
was to be in the form of tips on the numbers and by urging attendance at
religious services where those making donations would similarly be given tips.
In other
words, Lofton was using the public airwaves to sell tips in a
"numbers" bracket, and to advertise church services at which such
tips were sold. The Commission staff concluded that Lofton's broadcasts,
"under the guise of religion, solicited money from persons in the lowest
social and economic strata by appealing to their aspirations for an immediate,
facile solution to personal poverty." His programs tended to encourage
participation in a form of unlawful lottery, as proscribed by the
Communications Act of 1934, Section 509(a)(3).
The majority opinion goes on to say:
Although the licensee states that it
was not aware of any improper practices by Lofton, monitoring of Lofton's
broadcasts by station personnel should have alerted management to the need for
a careful inquiry into his activities.
In other
words, it was obvious from the broadcasts themselves that Lofton's programming
was suspect. Nevertheless, as the majority says:
The staff's inquiry established that
Lofton's programs were carried on WWRL from mid-1965 until December 2, 1969,
with the possible exception of a period of about six weeks in 1966 during which
Lofton was in prison. This imprisonment resulted from Lofton's violation
of the terms of a two-year period of probation to which he had been sentenced
by a United States District Court in Detroit, Michigan. This sentence, in
turn, had resulted from Lofton's conviction, in 1964, of using mail and wire
communication to defraud.
In other
words, during the time Lofton's broadcasts were being carried by WWRL --
approximately 4 1/2 years -- he spent about six weeks in prison as a result of
a conviction for using mail and wire communications to defraud, for conduct not
substantially different from that in which he was engaged while broadcasting on
WWRL.
Moreover, on March 31, 1966,
Inspector Karl Fein of the New York Postal Inspector's Office visited the WWRL
offices after arranging to do so with Arthur Harrison, then the station's
commercial manager and now vice president in charge of sales. While at the
station, Fein spoke with Frank Ward, executive vice president and general
manager; his wife, Mary Ann Ward, who was an accounting department
[*869] employee; Miss Viola Barton, the station's bookkeeper; Fred Barr,
who was in charge of the station's religious programming; and Harrison.
Tape recordings of Lofton's most recent broadcasts were reproduced by Emanual
Bridges, a station technician. The majority opinion notes that Fein's
information was subsequently responsible in part for the revocation of parole
which led to imprisonment. The opinion also states: "During that
visit, Fein mentioned that Lofton had been convicted of mail fraud and that he
was then being investigated for the same offense." The majority concludes
that:
[An] inquiry should have been
precipitated by statements made by Postal Inspector Fein to WWRL station
personnel on the occasion of his visit to the station on March 31, 1966.
No such inquiry appears to have been made prior to the Commission's investigation
into this matter.
In other
words, even though the broadcasts themselves should have alerted the station's
management to Lofton's improper conduct, and even though a number of station
personnel, including management, had actual knowledge that Lofton had been
convicted of mail fraud, and that a Postal Inspector was investigating Lofton's
WWRL broadcasts in search of violations for the same offense, the Commission
majority is satisfied with a warning to the licensee, Sonderling, not to do it
again.
Finally, the majority opinion
completely ignores the staff conclusion that "Lofton's programs were not
devoted to the advocacy or expostulation of any religious faith or creed, but
were used almost exclusively to obtain the financial support of WWRL's audience."
Thus, Lofton's programs were, in effect, one long commercial, and since WWRL
failed to log the programs as commercials, violated Section 73.112a(2)(ii) of
the Commission's Rules as well. In addition, Commission investigators noted
that frequently the programs of Lofton and other religious broadcasters on WWRL
were not accompanied by the sponsorship identification announcement required by
Section 317 of the Communication Act and Section 73.119 of the Commission's
Rules.
I regret that it is again necessary
for me to prepare a dissenting opinion in a case of this kind. See, e.g.,
my dissenting opinions in In Re Application of Star Stations of Indiana, Inc.
[WIFE], 19 F.C.C. 2d 991, 996, F.C.C. 69-992 (1969) (in which Commissioner
Kenneth A. Cox joined), in which the majority concluded that although a
licensee had fraudulently deceived its clients and bilked its advertisers of
more than $6,000 in advertising revenues (all during a one-year probationary
period), the licensee's operation had nevertheless "minimally met the
public interest standard" and its license should be renewed; and In Re
Application of WKKO, Inc., Cocoa, Fla., 24 F.C.C 2d 889, 890, FCC 70-739
(1970), in which the majority, without a hearing dismissed charges against a
licensee -- which had been admitted -- involving fraud of over $41,000 on
advertisers.
Although I might be warranted by now
in giving up on attempts to argue the merits of such cases as these, it does
seem to me they should at least be reported for the historical record.