Yesterday, we talked about the complaint filed with the FCC by Dr. Bill Gleason, world-class researcher, and The Late Debate, a talk show at plucky little FM station “Hope 95.9” in Ramsey hosted by Jack Tomczak and Ben Kruse, and about why the complaint was of no merit.

I’m predicting that the complaint gets ignored and politely rejected, sooner than later, because nothing in the complaint involved any are over which the FCC has jurisdiction.  The complaint spoke of…:

• “Untruthful statements” – While Gleason never specified in his complaint what the “untruthful statements” were – opting to leave it to the FCC staff to cull through a blog post that looks not a little bit like a ransom note to find them, whatever they were – the fact is that even if Tomczak said something that’s untrue, defamatory and malicious, that’s the province of civil court.  Not the FCC.  And it’s a demonstrable fact that Bill Gleason – for all of his well-documented talent as one of the world’s leading researchers – is a bully.
• “Harassment” – Actual harassment is something to take up with the local police.  While broadcasts can harass people, that refers to using the broadcast airwaves to try to systematically mess with people – not merely talk about an attempt at an ambush interview (which is, like it or not, protected constitutional speech,  provided that there is no physical threat involved – and even that is the job of the police, if there is any genuine worry).

If I were a betting man – and I’m not – I’d bet money that this complaint will be politely but completely rejected in a few weeks.

Of course, the general manager of a radio station is not paid to be a betting man.  A GM’s main job, before all of that “get ratings’ and “turn a huge profit” thing, is to protect the station’s FCC broadcast license, which is the station’s reason to exist.

And when the subject of “FCC complaints” comes up, General Managers get justifiably skittish.  And the management at Hope 95.9 reportedly are being skittish.  They’re not (I’m going to guess) big-market talk-radio management, with lots of experience at dealing with everyone from crazies to well-organized special interest groups leaning on them over every stance every host takes.  They run a little Christian station in the north ‘burbs.  I know nothing about them, but they remind me of the management I grew up working for in North Dakota – very sensitive to any feedback they got from the community.  Anyway – they’re reportedly leaning toward telling Tomczak and Kruse to apologize to Gleason.

This is a mistake.

It’s imperative that broadcasters follow the rules.  But nothing in Gleason’s complaint referenced anything that the FCC has jurisdiction over.   And while every married guy in the world knows that apologizing for things you didn’t do is common sense in a marriage, it makes less sense for a broadcaster; it devalues the rules and the process for enforcing them.  It means every bully who doesn’t like being portrayed as a bully will get it in their heads to scamper off to the FCC when someone stands up to them and puts the story on the air, on the flimsiest and most facile of pretexts.

Which is what Gleason is doing.

If it were my station – and it’s not, and I have no financial skin in the game, so my opinion is worth exactly what you’re paying for it – my response would be something along the lines of…

Dear Dr. Gleason,

Thank you for bringing this matter to our attention.  While we realize that you may have been offended by our broadcasters’ remarks about you, nothing in the broadcast violated any FCC rules.

If you feel you’ve been harassed, you need to contact the police.

If you feel you’ve been defamed, you need to contact a lawyer.

If you are offended by Mr. Tomczak’s portrayal of you (leaving accuracy aside for the moment), or the language he used in his Twitter exchange, you need to take that up with Twitter, and with Mr. Tomczak directly.

While we do not seek to gratuitously offend any listener, you have complained of nothing for which this station or Mr. Tomczak are legally liable to the FCC.  Therefore, while we regret any perceived offense, we must decline your request for an apology from station management.  As none of your grievances with Messrs. Tomczak and Kruse relate to FCC offenses, we will not be directing them to apologize to you.

I thank you for being a loyal listener.

Mitch Berg

Hypothetical General Manager

Again, it’s not my license.  But if management is considering knuckling under to Gleason’s spurious complaint, I hope they reconsider.

If you’re a Late Debate fan, it might not hurt to give the station a polite, to the point call to support ’em.

Earlier today, we took a first glance at the complaint filed with the FCC by professor William B. Gleason (an associate professor in chemistry at the U of M Medical School) against “Hope 95.9FM”, a little low-power FM station in Ramsey, in the north ‘burbs (with a couple of AM signals serving Saint Cloud) which is the home of The Late Debate, with Jack Tomczak and Ben Kruse.

You can read the text of the complaint in this morning’s post, or at Dr. Gleason’s blog, (which I hasten to point out has never been described as “something that the FBI Behavioral Unit could use as a case study in odd-looking”; you be the judge), because, lest you missed it this morning, Dr. Gleason is an elite researcher at the very tip-top of his field, at the very bleeding edge of research into saving lives, who barely manages to squeedge in time to blog and write dozens of Twitter tweets a day during breaks in his lab schedule (under his own name and a carefully-honed pseudonym).

Let’s walk through the complaint, point by point:

  There are actually three radio stations involved.

They are 1150 and 1300 AM in St. Cloud as well as 95.9 FM in “North Metro”

So far, so good.

Mr. Jack Tomczak harassed and threatened me prior to this show as is documented in the following post:

link to post – click her [sic]

The Twitter exchange in question – starting last Tuesday, May 10 – bounced back and forth between the two.  You can read the conversation here, on Tomczak’s Twitter Feed (starting, essentially, with this post), or here on Gleason’s.  Name-calling ensued.

And as a result of the name-calling – Tomczak felt Gleason bagged on stay-at-home dads, and took umbrage – he decided to go, last Wednesday, to visit Gleason at the University of Minnesota.

Now – is that harassment?

Well, if it’s in a public place, and Tomczak doesn’t break any laws to get there, or when he’s actually there, and doesn’t do anything to warrant anyone telling him he’s a trespasser (or leaves without making a ruckus if someone does call him a trespasser, and goes through channels to deal with that), then he’s no different than any leftyblogger who, say, brings a camera down to the State Office Building to try to catch state legislators (as “Spotty” from Cucking Stool is apparently wont to do), or what Channel Five does when they want to catch, say, loafing public works workers.

Of course, Channel Five doesn’t phrase their requests for interviews with terms like “asshole“.  Which was Tomczak’s sole mistake.  But, I hasten to add, that took place on Twitter – a place where the FCC has no jurisdiction.

Still – does that sound threatening?  Tomczak noted that he would “bring my 8 month that you think I’m wasting my time with.”

So Tomczak wasn’t doing anything wrong – and even if he was, “Harassment” that doesn’t happen on the air is not the FCC’s jurisdiction.  If Bill Gleason felt “harassed”, going to the FCC is of no more use than going to KARE-TV’s Ron Schara for a “Minnesota Bound” segment.

Harassment is law-enforcement’s ‘job.

Also available at this location is a clip of the objectionable material broadcast. Many of the things that Mr. Tomczak says are untrue as is evident from his twitter feed.

Many of the things said are wrong and he had a responsibility to check them out before making these outrageous claims.

It’s hard to know what Gleason meant by this – which, given the frenetic pace of research and publication that a U of M Medical School chemistry professor keeps, is probably understandable.  Go ahead and read the whole exchange – on Tomczak’s twitter feed, or Gleason’s version of it – and find something that’s “untrue”.  There was the sarcastic reference to checking for alcohol on Gleason’s breath at 2PM – which wasn’t really an “untrue claim” as it was a bit of sarcasm.

Here’s an example to help you sort things out:  if someone, for example, states as a mater of fact that you have a conviction for driving while intoxicated on your record, and you don’t?  That’s an untrue claim!

And if someone makes that claim based on information he got from a source that even a five-year-old knows is bogus – say, a spam advertising site – and then blusters about it?  Then that someone is failing in his responsibility to check his facts. And that is defamation, and while it’s very difficult to prove in court, it’s legally actionable.

But what if Tomczak really did say something untrue about Gleason? Something untrue that might damage the reputation and livelihood of a professor at the absolute bleeding edge of his field?   What if, as Gleason says in his complaint…:

This is a public use of the air waves to make counter-factual statements for the purpose of harassing someone.

This complaint falls within the FCCs purview of fairness.

Well, no.

The FCC’s website itself tells you that their complaint process deals with…:

• Obscene or indecent programs – saying the seven words you can’t say, or showing the four body parts you can’t show, basically.
• Unlawful or illegal advertising – there are things you are not allowed to advertise.
• Disability access
• Emergency alerts
• Unauthorized/unfair/biased/illegal broadcasts – this seems to be the issue,, here…
• Cable modem or signal issues
• DTV issues

So what does the FCC mean by “Unauthorized/unfair/biased/illegal broadcasts”?

• Illegal or bribed advertising on a public broadcasting station (e.g. advertising alcohol during certain hours)
• Biased or distorted news stories by the media.  Maybe this is what Gleason is alleging – but if so, the content on the blog post that is his sole “evidence” gives us nothing to go by.
• Unauthorized broadcast of telephone conversations – and by that, they mean conversation, with an actual person.  I ran afoul this one in 1986 when I worked for Don Vogel.  We busted another local radio station plagiarizing our material.  We called their control room on the air.  We – Don, Dave Elvin and I – didn’t know about FCC regulation 73.1206, which bars broadcasting telephone conversations where the recipient doesn’t know they’re on the air.  The stations’ lawyers huddled, and decided that if they had a 73.1206 complaint, we had a plagiarism complaint.  The lawyers decided we had offsetting penalties, and to let it all go.  Whew.  Oh, and it doesn’t include answering machines, I found out; answering machines can’t give permission, and have no knowledge.  Which is a long tangent indeed, for something that wasn’t in Gleason’s complaint.  I beg your indulgence.
• Broadcasting threatening or intimidating statements about an individual or group – The word “Broadcasting” is rather important there.  We’ll come back to that below.
• Announcement of Station ID or Call Sign – That means “they went more than three hours without broadcasting their station ID (“WWTC, Minneapolis/Saint Paul”, in my station’s case; that’s why you hear that at the top of every hour on every radio station in the business – because it’s the law).
• Unfair contests, hoaxes, lotteries – lotteries are illegal.  So are hoaxes like “the dam burst, everybody run for shelter”, which some DJ at a station in Valley City North Dakota did in the seventies.  Once.  At the very end of his short career.
• Unlicensed broadcasters – “pirate radio”.

So Gleason is complaining that Tomczak’s statements were untrue; other than the sarcastic jab about “alcohol at 2PM”, it’s hard to see what was untrue and, here’s the kicker, that was on the air.

Does it relate to “harassment”?  Not sure if Gleason is alleging that “people talking about him in the air” is “harassment”; I suspect it’s the unplanned visit at the office.  But the office is a public facility; Tomczak reportedly walked freely to Gleason’s office door.  Gleason can’t willy-nilly bar people from the office during his endless grueling work hours for no reason, even if he’s armed…with a baby.

All of this happened – I’ll emphasize this – off the air.  If Gleason feels threatened or harassed, the U of M Police are the agency with jurisdiction.

If Gleason feels he was defamed, then the civil court system is the place to bring a defamation suit.

If it didn’t happen over the airwaves and didn’t break an FCC regulation regarding content or behavior on the air, then it’s really not the FCC’s department.

To paraphrase the late Johnny Cochrane, “If it’s not on the air, the FCC doesn’t care“. 

My prediction – as someone who’s spent sixteen years doing one form of radio or another since 1979, at eight different radio stations, and is from a generation of radio people who had to learn the laws and rules to get on the air in the first place?  The FCC will look at this complaint, notice that there is nothing in it that is their jurisdiction, and send Mr. Gleason a polite demurral in a few weeks.

But the problem here isn’t Professor William Gleason.

More on that tomorrow.