Count the People Who Count
The Heftel Broadcasting Corporation's acquisition last year of four of Miami's most popular Spanish-language radio stations -- including two of the three most politically influential AM outlets in the Cuban exile community -- raised the ire of moderate exile groups opposed to those stations' strident anti-Castro bias and their methods of expressing it. But now, in what might prove to be a final push to disallow the sale, attorneys representing three of these moderate exile groups are employing a different argument. Instead of basing their claim on allegations of biased or inflammatory broadcast content, the lawyers are challenging the benchmark the Federal Communications Commission (FCC) uses to ensure fair business competition.
To foster fair competition and a "diversity of voices," FCC regulations allow a single entity to own no more than two AM and two FM stations in any market of fifteen or more stations, and then only if the four combined do not garner more than 25 percent of the total audience share. But attorneys in Miami and Washington, D.C., want a federal appeals court to compel the FCC to define the Dade-Broward radio market in terms of the language in which a station broadcasts, rather than lumping together all the stations in the geographical area. The plaintiffs -- Cambio Cubano, Profesionales y Empresarios Cubano Americanos (PECA), and Contrapunto Inc. A contend that the sale of the four Miami stations to a single corporation has resulted in unfair competition because those stations together control almost 60 percent of this area's Spanish-language radio market. Without factoring in language, the four stations' share of the total market is thirteen percent.
Last year the Las Vegas-based Heftel Broadcasting Corporation (HBC) bought La Cubanisima (WQBA-AM 1140) and WRT0-FM 98.3 (formerly WQBA-FM) and became sole owner of Radio Mambi (WAQI-AM 710) and WAMR-FM (formerly WRTO-FM), which Heftel had owned jointly since 1989 with prominent Miami businessman Amancio Suarez. According to HBC's 1994 annual report, WAQI and its FM counterpart WAMR rank third among Spanish-language stations nationwide in gross advertising revenue. The most recent Arbitron ratings rank WAQI-AM sixth overall among the 41 radio stations in the Miami market. WAMR ranks thirteenth, WQBA-AM eighteenth, and WRTO-FM twenty-fifth. Among Spanish-speaking listeners, WAQI is number two, WAMR number four, WQBA-AM number five, and WRTO-FM number eight out of a total of eleven local stations that broadcast only in Spanish. (In its 1994 annual report, HBC asserts that approximately 40 percent of all Hispanics in the U.S. speak Spanish exclusively. Luis Diaz-Albertini, general manager of the company's Miami stations, says HBC has initiated a study to determine the proportion of the Dade-Broward population that speaks only Spanish.)
After two separate FCC reviews upheld the agency's approval of the sale, attorney David Honig this past Wednesday filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. He is awaiting a briefing date. Previously, the plaintiffs had bolstered their case by arguing that the two AM stations in question, particularly Radio Mambi, ignored opposing views and cultivated an atmosphere of violence against those not sufficiently anti-Castro. Thus, they have contended, the Spanish-speaking exile community has had little access to other perspectives, which in turn gives the two Heftel-owned AM stations disproportionate power. With the appeal, though, Honig is dropping the freedom-of-expression issues.
"We submitted evidence that half or more of the Spanish-speaking market in Miami doesn't understand English very well, and consequently it doesn't benefit them to have programming which is gibberish to them," says Honig, a Washington, D.C.-based civil rights and communications lawyer.
"That's how they're defining 'market', but it's not how the commission defines it," counters Richard Waysdorf, an attorney for the FCC's audio services division. "To evaluate whether competition is fair or not, the commission has always used the benchmark [of] audience share. But the commission doesn't evaluate that based on the language spoken. This is the first time the commission has been asked to define 'market' for multiple ownership purposes. But 'market' is a broad and imprecise term."
Ron Rodrigues, managing editor of Radio and Records magazine, finds the case intriguing. "They're raising a very interesting question, a question a lot of people are asking these days, when a community is not defined geographically," says Rodrigues. "If someone buys up all the Spanish stations, they may not be violating the [FCC] rule, but they're not giving people who speak Spanish a choice. It sounds like a compelling argument, but you can take it and apply it to the black community or other cultural groups. Where do you stop?"
To Honig, though, the language issue is key. "If you don't understand what's being said, that station isn't an option for you," he argues, adding that Spanish-language stations employ numerous different formats. HBC's annual report, for example, lists Mexican Regional, Contemporary, Tejano, Full Service, and News/Talk.
Attorney Andrew Schwartzman agrees. "It's a perfectly plausible argument," says Schwartzman, director of the Media Access Project, a Washington, D.C., law firm specializing in public telecommunications issues. He does, however, add a caveat: "You have to have a very strong case to get the court to reverse an agency." As for the fear that defining a market by language will lead to drawing similar lines by race or ethnicity, Schwartzman observes, "You don't have to look at every market the same way every time. The issue is concentration of control." And although many expect that federal legislation now in Congress will substantially deregulate the radio industry -- making it easier for single entities to own multiple stations in a given market -- Schwartzman believes Honig's case will remain relevant. "Regardless of whether there are particular rules regulating kinds of ownership, the FCC has to examine every ownership application individually," he says. "There will still be the question of whether it's in the public interest."
Heftel's 71-year-old founder and head is Cecil Heftel, a Democratic U.S. congressman from Hawaii from 1976 to 1986. The corporation owns fifteen Spanish-language radio stations in Miami, Los Angeles, New York and Dallas/Fort Worth, among other markets, as well as Cadena Radio Centro, a Mexico City-based worldwide radio network that broadcasts via satellite. HBC is unambiguous and unapologetic about the company's intention to control the nation's major Spanish-language radio markets. "Our goal with both [pairs of] stations is to make money," says Luis Diaz-Albertini.
Advocates of moderate political views have always complained that they not only are prevented from airing their views on WAQI and WQBA but are routinely threatened and defamed on the air without being informed of the attacks or being given the opportunity to respond -- a violation of FCC rules. In September of last year, after HBC had purchased WQBA-AM and the then-WQBA-FM, Cambio Cubano, PECA, and Contrapunto agreed to abandon their petition to have the FCC deny the company's additional acquisitions. Instead they negotiated an extensive agreement that called for, among other things, the creation of a "Diversity Council" to ensure that future HBC programming in Miami represented alternative views. The accord also banned the on-air use of inflammatory words such as comunista, baboso, rata, agente castrista, and traidor.
Despite being signed by HBC's attorney, the agreement was never implemented, according to Ira Kurzban, the Miami attorney for Cambio Cubano and the other two groups. They filed a civil lawsuit in Dade Circuit Court in November 1994, seeking an order for HBC's compliance. (HBC has submitted a motion asking Chief Judge Leonard Rivkind to dismiss the suit.)
Though he has narrowed the grounds of his argument for legal purposes, attorney David Honig, who has served as general counsel for the Miami-Dade chapter of the NAACP for several years, clearly has deeper qualms about Cecil Heftel's domination of the Spanish-language airwaves. He asks , "Do you want anyone to be a Citizen Kane in a city that's really just coming into the Nineteenth Century as far as political ethics are concerned?
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