Radio Sputnik Station Revocation Unlikely but HDO Possible, Attorneys Say

A petition from a nonprofit representing U.S. Ukrainians urging the FCC to designate for hearing the licenses of the owners of a Washington, D.C., area station that airs Radio Sputnik is unlikely to succeed but could lead to a costly process, said broadcast and First Amendment attorneys in interviews Wednesday.

“There are things you can’t say on the radio: you don’t get to broadcast Russian propaganda,” said Smithwick & Belendiuk attorney Arthur Belendiuk, who represents the Ukrainian Congress Committee of America, the organization behind the petition against station owners Arthur and Yvonne Liu. “Taking away licenses from stations that broadcast the wrong politics is the kind of thing [Russian President Vladimir] Putin does, not the U.S,” said First Amendment attorney Robert Corn-Revere, of Davis Wright.

Radio Sputnik is broadcast on WZHF(AM) Capitol Heights, Maryland, which the Lius own through their company Way Broadcasting, but the UCCA petition asks the FCC to revoke the licenses of 32 radio stations all over the U.S, owned by the Lius through multiple companies. The UCCA and Belendiuk, who's of Ukrainian descent, argued that by broadcasting Radio Sputnik, the licensees violated the FCC’s public interest requirements and “failed in their basic duty to serve the needs of their communities.” NAB earlier this month urged all broadcasters to cease airing Russian state-sponsored content (see 2203010067).

“The programming Arthur and Yvonne Liu broadcast seeks to justify or explain away Russian war crimes that are being committed in Ukraine,” said the petition. The Lius “exchanged the lives of innocent women and children in return for thirty pieces of Russian silver” and should lose all of their broadcast licenses, the petition said. The Lius and Radio Sputnik didn’t comment. Retired broadcast attorney John Garziglia, who owns a Reston, Virginia, translator rebroadcasting WZHF, declined to comment.

“I don’t think this has a chance” to end with license revocation, said Corn-Revere. He said the FCC historically doesn’t act against stations over their content. The petition “cobbles together reasonable-sounding arguments” but ignores that the FCC can't act against content outside of very narrow areas such as indecency, said Freedom Forum First Amendment Specialist Kevin Goldberg. Goldberg was formerly a partner at Fletcher Heald, which represents the Lius.

Several attorneys suggested the petition’s true goal isn’t revocation but a lengthy and expensive hearing process. The petition points to the FCC designating KDND Sacramento for hearing over a 2007 radio contest that resulted in the death of a participant as a precedent for possible action against WZHF. “The UCCA calls on the FCC to move swiftly and set all their broadcast license for hearing to determine if they and the companies they control are qualified to remain Commission licensees,” said the petition. Goldberg compared the petition to strategic lawsuits against public participation (SLAPP), which are often deployed against media companies and are intended not to be won but to burden the target with legal fees and filings.

“A hearing is an extremely expensive process,” said BakerHostetler attorney Davina Sashkin, who represents RM Broadcasting, the company that leases all of WZHF’s air time to broadcast Radio Sputnik content. Sashkin said it's possible the FCC could designate the matter for hearing because of the optics of doing so. A recent FCC move to require disclosures with foreign-sponsored content was seen as stemming from pressure applied by Rep. Anna Eshoo D-Calif., who has been a vocal critic of WZHF (see 2109140053). WZHF since 2017 has been regularly airing disclosures saying the content is paid for by the Russian government, Sashkin said.

By airing content claiming Ukrainian forces are shelling their own maternity wards and apartment buildings, the station is effectively encouraging violence against Ukrainians, Belendiuk said in an interview, comparing WZHF to a station urging violence against minorities. Goldberg said the content aired on WZHF doesn’t rise to the level of inciting violence and is protected by the First Amendment. “We want to protect this speech. Yes, Russia is awful and engaged in disinformation, but this allows us to see for ourselves the exact magnitude of that disinformation,” said Goldberg. “We don’t want the FCC weighing in on this stuff.”