The 800-pound gorilla

[Editor’s note: Although listening to the radio is often a highly personal event, what comes out of receivers is shaped by federal and corporate forces far removed from the individual. In the first of two parts, Xpress looks at what led to the rise and fall of local rock station WZLS. Next week, we check out the corporate heavies that are shaping radio here — and across the country.]

On a spring evening in Asheville, Richard Harris‘ unmistakable voice crooning the words to “MacArthur Park,” drifted out over the airwaves:

“MacArthur’s Park is melting in the dark /All the sweet, green icing flowing down …”

Then it was on to “Good Lovin’,” by The Rascals.

Whom can we thank for this anachronistic bit of programming? New FM radio station WOXL — billed as Oldies 96.5 — whose victorious bid for the license to broadcast at that frequency ousted homegrown rock station WZLS off the air. And indirectly, we can thank the Federal Communications Commission.

For the casual listener, the demise of WZLS might appear to be little more than a format change from rock to oldies.

But for Barry Lee, WZLS’ former general/sales manager, the loss of his family’s radio station means a great deal more. For him, it’s the story of an Asheville family with deep roots in the community and local broadcasting essentially being shafted by the FCC. Betty Lee, Barry’s mother, was the station’s public service director and his brother, Brian Lee, was the program/music director and an announcer.

Back on Feb. 21, the FCC ordered WZLS off the air, ending years of wrangling over who would have the right to broadcast at 96.5, a newly-created FM frequency — an issue complicated by a federal about-face on how new radio frequencies are awarded. At midnight on Feb. 22, WOXL began broadcasting. The event marked perhaps one of the last chapters in a complicated saga that began in 1987 — one that’s been so complex, in fact, that even other local broadcasters have had trouble following it.

During its years on the air, WZLS became known for its eclectic rock programming. Though almost unheard of these days, DJs chose their own songs and used not only CD players, but an actual turntable, as well — bucking today’s industry trend of using digital music files. WZLS was also generous in airing public service announcements and offering its listeners services such as “lost dog” listings.

According to Barry Lee, the story goes like this: Fifteen years ago, the FCC opened up the application process for a new local frequency at 96.5 FM. At the time, Lee’s father, the late Zeb Lee, owned WSKY-AM, which he had founded in 1947. But AM radio was going “the way of the dinosaur,” Lee says, and the family saw the FM frequency as a better opportunity both to continue to serve the public and to make a living. Under FCC rules, however, their attorney advised them they’d have a better shot at being awarded the new FM frequency if they sold off WKSY (though it was not technically forbidden by law to own both an AM and an FM station).

Back then, new frequencies were awarded through what the FCC termed a “comparative hearing,” in which an administrative law judge weighed a number of factors — including participation in civic affairs — to determine which company was best suited to control the frequency .

The Lee family’s company, Orion Communications, beat out several other applicants back in 1990, in part because of Zeb Lee’s long-standing service to the community. Ironically, Liberty Productions (the company that now controls the frequency) was disqualified then because one of its partners misrepresented the status of its transmitter site’s availability.

“They lack the requisite character,” noted the administrative law judge in his 21-page decision, referring to Liberty.

Still fending off appeals from competitors through several additional hearings, Orion Communications was awarded a “construction permit” in April 1993, which gave the Lees 18 months to put a station on the air.

Federal flip-flopping

Just six months later, the playing field was about to be rearranged. In an unrelated case, a federal court ruled that the FCC couldn’t use continue to use certain standards to award licenses, including its policy of giving preference to station owners who would participate in the day-to-day management of a station. About 200 pending license applications were frozen, according to the The New York Times.

While the FCC regrouped, the Lees pushed forward. Zeb Lee sold WSKY in March 1994; four months later, WZLS went on the air. But of course, that wasn’t the end of it.

Almost 18 months later, the FCC reversed a staff decision allowing the Lees to keep their construction permit (revoking the station’s approval to operate) and, instead, awarded temporary broadcasting authority to a consortium of competitors called Biltmore Forest Radio Inc. On June 2, 1997, the FCC ordered WZLS off the air. Listeners may remember the station’s final day of overlapping broadcasting: Both WZLS and the new WZRQ broadcast on the same frequency until WZLS finally signed off.

“We were put out of business,” recalls Barry Lee.

At that point, the case garnered significant attention: WZLS supporters demonstrated in front of the federal courthouse in Asheville and stories appeared in the Charlotte Observer and on the cover of Media Week (headlined “How the FCC destroyed Zeb Lee”).

Meanwhile, that summer, Sen. John McCain had attached a rider to the Balanced Budget Act of 1997 that went almost unnoticed at the time: The legislation required new radio and TV licenses to be auctioned off to the highest bidder — which eventually would undo all of the Lee family’s efforts. That meant that money apparently ruled, rather than factors on which the FCC had once based its decisions — including local residency, civic participation, women/minority ownership, broadcast experience and lack of other mass media holdings.

However, the Lee family continued to fight to regain the frequency. In December 1997, the U.S. Court of Appeals ruled in their favor, saying the FCC had acted “capriciously” and “arbitrarily” in taking WZLS off the air. The Lees began broadcasting again in January 1998.

But the FCC decided that even though the disputed frequency had been established under the comparative hearing rules, the license to broadcast on it would be auctioned off, too — an announcement that came less than a week after Zeb Lee’s death in August 1998.

The auction took place in September 1999; Liberty Productions won it with a $2.3 million bid, according to news reports. Orion Communications placed third in the bidding at just under $1 million, Barry Lee notes, for “our own damn business.” WZLS continued to broadcast until Feb. 21, 2002, when the FCC gave the Lees less than nine hours notice to shut down.

The view from the Oldies station

The company that won the licensing auction to broadcast at 96.5 FM doesn’t actually run the station.

Valerie Klemmer Watts, who owns Liberty Productions, has turned the management of the new Oldies 96.5 (WOXL) over to Asheville Radio Partners in what’s called a local marketing agreement, says Hal Green, WOXL’s operations manager. (Watts was unavailable for comment.)

“To my knowledge, she’s never owned a station before,” notes Green, though she does do a public-affairs program on WOXL at 8:30 a.m. on Saturdays.

Meanwhile, in a complicated arrangement, Asheville Radio Partners — a subsidiary of America Media Services LLC of Charleston, S.C. — bought venerable AM station WISE about a month ago, as well as the building that houses both WISE and WOXL on Lookout Road, reports Green. The two stations share about 12 employees, explains Green, who also serves as general manager for WISE.

Local Program Manager John Norris chooses the music for Oldies 96.5, Green says, adding: “We do not bring in canned programming by satellite at WOXL.”

Although Green mentions local daytime DJs Pat Ryan and Bill Golden, he’s less familiar with the out-of-town radio personalities who broadcast at night. One is a woman from Columbia, S.C., and another is Washington, D.C., lawyer who also moonlights, he says.

“At night, we have imported voices,” Green admits.

In what’s known as “voice tracking,” the station provides the pair with the information they need for their broadcasts. The DJs record themselves and the station downloads their voices, which is inserted between the songs — a practice that radio giant Clear Channel Communications brought to a “fine art,” offers Green.

Ironically, Green once worked at WZLS and says he was friends with fellow broadcaster Zeb Lee for about 40 years — lauding him as both a good broadcaster and a good man.

“I have great respect and some sadness for Zeb Lee and the Lee family,” says Green, adding that he has “very little respect” for the FCC after decades of watching how the agency operates.

“Generally, Zeb Lee was screwed,” declares Green. “There’s no other word for it. … He was screwed. He sold his AM station. He believed what he was told. His family was committed to the community and he lost it. And it’s outrageous.”

In the end, the issue came down to money, Green believes.

“Liberty won the auction with money,” explains Green. “The Lees lost because they were not a hugely wealthy family. And I think you’ve got to be hugely wealthy to bid $2.3 million and to build the station.”

However, a key point that Green believes has been overlooked in the WZLS saga was that Zeb Lee and the Lee family never did win the license outright — they were operating under a temporary broadcasting authority during the entire drawn-out saga.

Green acknowledges, however, that his role with the new station has strained his relationship with the Lee family. He insists, though, that neither he personally nor WOXL has done anything to hurt them. “They’re not too happy with me anymore because I’m working over here,” he muses.

Asked whether he thinks the auction procedure is fair, Green responds: “It’s realistic. That’s the way it ultimately ends up anyhow.”

However, Green admits that the auction procedure doesn’t offer women or minorities a greater opportunity to win licenses, which was available under the old procedure. (Auction supporters, however, counter that the new system attaches a value to the license — essentially a public resource — that winds up adding to the U.S. Treasury.)

“It’s ugly, but they do it,” Green says of the FCC. “And there’s not much you can do about it, because they’re in power and you’re not.”

Gauging public response

Ask Barry Lee what the FCC’s impact has been on his family and he says flatly: “I am unemployed. My family has debt in six figures. My dad’s dead.” Lee explains that although his father had been in good enough health just a few years earlier to do play-by-play announcing, the fight for the radio station was too much.

“My dad would still be here if he was not put through this by the federal government,” Lee reasons.

Though Lee seems tired of talking about it, a deep indignation still comes through about the turn of events — which also cost a dozen people their jobs.

“We sold our livelihood. We trusted the government to do what was right — it sounds funny even saying it. We spent half a million [dollars] and … were ordered to walk away with nothing to show for it — after 55 years of serving the community.”

Months after his family’s radio station went off the air, Lee says that many people around town still don’t get it. For Lee, the point wasn’t whether people liked WZLS’ rock format — but whether “justice has been served.”

The family has a remaining court challenge, scheduled to take place in federal court in September.

Aside from the battle itself, Lee has been puzzled by the waning interest in WZLS’ plight. The saga drew a great deal of public and media attention in 1997, when the station was first ordered off the air — including petitions that Lee says were signed by about 6,000 people. This time around, Lee marvels at the lack of public outcry and coverage: Up until now, only a few local newspaper stories have appeared, in addition to a handful of letters to the editor that were published in Xpress.

Former WZLS DJ Brent Robinson also remarked on the shortage of public response: “There hasn’t been a big fuss made about this. It truly was just an Asheville family having their business taken from them without any compensation. … They were the rightful heirs to this new frequency, but yet McCain’s coverall solution [was] to just make money off of hundreds of radio operators across the U.S.”

Lee has concluded that the lack of community outrage reflects a shift in what people are willing to accept these days — from their government and from their radio stations.

“I don’t think people expect much anymore,” concludes Lee. “And that’s what they get. Not much.”

Next week: Xpress takes a look at the big picture of deregulation in the radio industry and what it means for Asheville.