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What Others Told Me About Freedom of Expression – Continuing the Conversation

I wrote a column on freedom of expression and the First Amendment for Broad and Liberty website, which has been pertinent since Elon Musk bought Twitter.

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Last week I wrote a column on freedom of expression and the First Amendment for the website Broad and Liberty. I’m passionate about the topic, which has been pertinent since Elon Musk bought Twitter. I couldn’t have anticipated the reaction or the wide range of opinions. 

Some complained that despite the title, there wasn’t much about my experiences with Stern. I should have explicitly stated that what I learned is I am a free speech absolutist, up to “imminent lawless action.” I’d rather tolerate speech I abhor without limits (even as I will self-censor later in this column). In the previous column, I also demonstrated how and why  I learned that hate speech is part of the American free speech covenant.

That’s it; those are the free speech lessons I learned in my years working with the Stern Show. If you want to hear Stern Show stories, I’ve got them; ask anyone who knows me. But there are only two points about free speech that stuck with me.

Former CBS President and CEO Dan Mason’s great Stern story dating from around 2014, demonstrates his commitment to free speech.

Mason told me one morning before seven he got a call from CBS VP of Programming Chris Oliviero. “They don’t bother you at that hour unless it’s something really bad,” he said. 

Oliviero relayed that Gary Dell’abate, Stern’s producer, was trying to reach Mason. Stern wanted to apologize for railing on Mason, on his SiriusXM show, over something he thought the CBS Radio honcho had said about him. During the rant, Stern called Mason the C-word (I am choosing to self-censor). A different Dan Mason made the offending statement about Stern, and he felt bad about the mistake and slur.

“Did he say I embezzled money,” Mason inquired.

“No” demurred Oliviero.

Did he say I committed fraud?

Again, no was Oliverio’s answer.

He can say that. It’s free speech, Mason exclaimed. He didn’t take the call because he didn’t think it was necessary, but he accepted the apology, never the less. 

Later that day, Stern’s agent, Don Buchwald, called Mason to ensure all was good.

“Look, Don, he didn’t call me an embezzler or say I committed fraud. He called me a C-word. It’s free speech.”

Mason’s wife, Kathy, is a Washington DC  dentist. Her patients shared Stern’s insults. She was furious. Mason went through the same spiel with her and had to add, “no, we’re not suing Howard.”

Four years later, Mason spoke at a Syracuse University Newhouse School seminar. The cab driver had Howard on. As the two spoke, Mason revealed his identity. The driver remembered the rant and said it was one of the funniest things he had heard. Again, Mason stood by his beliefs: “You can’t take Howard off because he calls me a C-word.” The driver said, “rides on me.” 

Dan Mason believes in free expression, even if it comes at his expense.

Robb Wexler, CEO of the National Aircheck, commented on LinkedIn, “If 1,000 people on social media insist that drinking Draino kills Covid, should we let that slide and attribute the deaths to survival of the fittest?” 

Wexler, who has analyzed news stories for both sides of the aisle for 30 years, notes “freedom of expression is not absolute” and sets up the debate by asking, “where is that line and who gets to draw it?”

If anybody is an expert on First Amendment issues, it’s Steve Lerman. He is the Senior Counsel to Lerman Senter, PLLC. Previously the Managing Member of the firm for 17 years. He was formerly the principal regulatory counsel to Infinity and served for ten years as General Counsel of CBS Radio. 

As principal regulatory counsel for Infinity Broadcasting, Lerman was a key player in the legal strategy when the FCC leveled indecency fines against the Howard Stern Show.

I first met Steve Lerman when I was in my early 20s. While I haven’t told any specific Stern stories, I will share one about Lerman. Soon after the FCC issued the first fines, I was trying to understand what it was reacting to. Lerman, who has an extremely dry delivery, even monotone – think Ben Stein, told me: “You have to picture me standing in front of the Supreme Court reading a transcript of the show to the justices. How will that go over?” It’s an image that, to this day, never fails to crack me up.   

Lerman wrote, “I read your article and agree with virtually everything you say.” He taught me most of the First Amendment legal theory I know, so logically we are simpatico. 

Lerman simplifies complex issues. “One problem with the contemporary, full-throated defense of the First Amendment is due to the changes in technology. Social media networks are a far cry from the means of dissemination even 20 years ago. There are many more bad actors—hackers, thieves, cyberbullies—than there used to be.  That makes undesirable speech more dangerous.” 

His answer is not to restrict speech via censorship but to enhance the penalties for speech that harms people. He believes that would lead to self-censorship. “If that constrains teenagers from bullying their classmates, and it constrains politicians from demeaning each other with false accusations, that’s OK. It would lead to a more civilized society.” 

Lerman dislikes that “politicians can say anything they want without consequence under the speech and debate clause and that political ads can be totally false and defamatory with no recourse for the damaged opposing candidate.” 

He blames that on the NY Times v Sullivan decision I cited in my previous article on freedom of expression. Lerman believes it makes it “harder for “public figures” to prevail in defamation lawsuits because they must show actual malice. They should have the same rights as everyone else when their reputations are falsely besmirched.” 

“I don’t want the government to censor my speech, but I want the bar to be lower for those damaged by false accusations, bullying, or other harmful speech, which should give rise to self-censorship, which is OK by me,” concludes Lerman.

I agree because self-censoring is not the same as content moderation.

Dave Van Dyke, president of Bridge Ratings Media Research, commented, “The American populous has become increasingly pessimistic about their sources of information as both sides claim they offer the facts on any issue.” 

For context, he provided data. “A recent poll of Americans 16+ found that only 42% did their own research into news stories with nearly 79% of those using sources that reflected their own political preferences.”

Steve Butler’s success as a News Radio Programmer can’t be overstated. For 25 years, he oversaw programming for KYW Newsradio, one of Philadelphia’s perennial ratings and revenue leaders. As VP of News for CBS Radio station, he worked with legendary brands, including 1010WINS, WCBS WWJ and WBBM.

Butler believes the controversy Musk is creating is performance art and calls Twitter “a journalist’s playground because they can do things there that they can’t do on their platforms – hence all of their focus on Twitter’s current situation.” This comment paints journalists as narcissists, demonstrating Butler’s insight.

“There are dangerous people out there. All they need is a spark,” he says. The comments I receive on columns confirm that many people see the danger. 

Butler continues, “dangerous people on Twitter and social media require some form of content moderation.” He doesn’t believe the government will become the arbiter of content. “Censorship is a term I reserve for when government cancels free speech.”

“As a radio news programmer, I saw that the 20-something-year-old media buyers painted with a broad brush and included all news stations in the ‘no-Limbaugh’ dictates — and there were many of them. Until we explained, we weren’t in that format. Eventually, the marketplace adjusted.” 

“Advertisers will decide content controversies. That’s how our system works,” he concludes.

Butler gets it right. 

From Davos, Switzerland: “Some of the world’s largest advertisers have joined forces with Facebook, YouTube, and Twitter to attempt to prevent harmful online content from messing with their campaigns.”

The Global Alliance for Responsible Media representing 60 companies, agencies, and associations representing $97B in advertising, announced measures to keep harmful content (terrorist video, hate speech) away from their ads. 

Rock Radio pioneer, Lee Abrams, is working on reimaging video news called  NewsMovie. https://www.leeabramsmediavisions.com/ 

Abrams says, “I blame American news organizations for generating a tired and dated presentation that is unappealing to most under 50. Rather than modernizing their programming and story selection to engage younger mainstream viewers, they are driving them to questionable platforms, Tik Tok being the worst.”  

His vision for information delivery moving forward is bold. “It’s well past time to rework priorities to fact-driven realities, the good, bad, and ugly, without political correctness or fear of offending, which should drive information.”

Abrams is an absolutist regarding freedom of expression: “There is no line to cross. Citizens must experience a 360-degree viewpoint to engage in local and global realities.” 

What led Abrams to his views? “Diving deep into the DNA of news consumers, I find  censorship of any point of view  and selective rather than open  freedom of expression generates a wide-spanning negative response from mainstreamers.”

To get a legal perspective on freedom of speech, I spoke with Jeremy Mishkin. He is a First Amendment lawyer and partner at a significant Philadelphia law firm. (Full disclosure, Mishkin has previously represented me in legal matters). His opinions are not intended as legal advice. We spoke in general terms about freedom of expression.

I asked Mishkin about imminent lawless action. If someone says, “kill all (whatever group),” isn’t that an imminent lawless action? Mishkin thought that would, most likely (rarely are hypotheticals black and white in law) be viewed as a “nebulous into-the-ether remark, which is protected speech.” 

I wanted to know, where is the line? “If someone says, ‘kill them’(group) and people who belong to that group are in the room, it would be much more problematic,” he answered.

He continued, “the more precise, specific, and the sooner people are supposed to do what you ask them to do, the hazier it becomes,” which brought us to January 6th. 

The day started with Trump holding a rally at the Ellipse, also known as President’s Park, where he spoke from a podium. According to Mishkin, “most First Amendment lawyers agree that the speeches from the podium were protected. It’s grayer when you consider what happened on the days leading up to January 6th and by others such as the Oath Keepers.”

Mishkin adds that while the First Amendment may protect the speech from the podium at the Ellipse, that doesn’t mean he thinks Trump is without blame or shouldn’t receive punishment for his role in what happened at the Capitol.

I asked Mishkin about misinformation. “Misinformation is designed to foment fear, uncertainty, and doubt, which has successfully been, at times, a risk to national security,” he said.

No doubt, casting doubts on our elections is a risk to the nation’s security. In 2016 before the Russian collusion narrative began, there was consensus that Russia wanted to “sow seeds of discord and chaos into our election system.” Mishkin laments the results, “we are now yelling at one another.”

We discussed how information changed during the Covid pandemic. Miskin observed, “science is a process that constantly asks us to  re-evaluate our conclusions based on new information.”

I wondered if someone posting on social media that injecting bleach cures Covid would be a problem. Most likely, there is no imminent lawless action if only “injecting bleach to cure Covid” is posted. The speech is likely protected, depending on all the circumstances.

Mishkin says people must be conscious that misinformation exists regarding potentially harmful misinformation. People have to be able to apply critical thinking and take a breath before reacting.

“The last thing I want is for government to decide what is true and require us all to agree, but government can and should raise awareness of the problem and provide tools to avoid being duped.”   

What about letting Twitter and other media companies self-police?

The second release of “The Twitter Files” show why conservatives believe the media can’t self-police.

Mishkin disagrees; “I don’t view what Twitter reports as nefarious. They were trying to figure out what to do in a dicey situation, and that’s hard. The volume of the material is the problem. Content moderation is extremely hard when you have terabytes of info.”

If only it were that easy. A year ago, Twitter reported generating 400 billion events, a petabyte (PB), daily. A petabyte is 1000 terabytes. For context, that’s enough data for 500,000 hours of movies or 500 billion pages of text DAILY!

The concern about misinformation, hate speech, and calls for content moderation is generated mainly because of posts on Twitter and other social media platforms.

Lori Lewis is president of Lori Lewis Media, a social media management and content coaching firm. She says, “many view the Internet as an ‘unrestricted playground.’  Just because we can say everything we’re thinking out loud doesn’t mean we should.

It’s a reminder of another Stern parable. People frequently said they liked Stern because “he says things I think.” The comment implied that they would never actually say those things.  

Saying whatever they want has turned social platforms into “gateways for an increased lack of civility in society,” adds Lewis.

Lewis acknowledges, “we have every right to say what we want, but there is accountability for social incivility. ‘My bad’ is no longer sufficient,” she warns.

“Impressions of you are formed every time you speak. The words and images we choose have the power to redefine our brands in an instant.” 

Her reminders for self-censoring (my words – not hers) are:

• People walk around with “live mics” 24/7. A filter must be on at all times. 

• It is not “social media’s” fault when people post something inappropriate. They are the posters’ words. It’s illogical to blame the medium or distribution channel used. 

• Understand the implications of words. Feel the impact of the comments from every point of view. Look for conflict in tweets, posts, pictures, or videos, and at least reconsider before hitting send. 

I appreciate everybody who took the time to read both columns on freedom of expression. Thank you to those who contributed their time and comments to this follow-up piece.

I agree with those who have said that are some dangerous people spreading misinformation, even lies, and hate under the cloak of freedom of expression. Despite those who abuse the First Amendment, I, and others expressing their views in this article, remain free speech advocates.  

Technology will increase the calls to censor or moderate freedom of expression. “Deep Fakes” (a mashup of “deep learning” and fakes) are becoming more widespread and more difficult to spot. Through artificial intelligence (AI) and increasingly common software, anybody can appear to say anything.

Self-censoring is what we do in our human interactions every day. I encourage it online. The market will determine where the line is for legitimate media. I am unconvinced that censorship or content moderation will solve hate or misinformation.

If the American experiment in democracy is to continue, we must honor the free speech covenant, even if it includes speech we abhor. 

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BNM Writers

Market Still Finding 2023 Footing

After some rigorous data analysis, the thoughtful, numbers-based host was able to formulate some potential conclusions.

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While it’s hard to imagine 2023 being as painful for investors as 2022, experts still cannot say for certain we are destined for blue skies ahead. Many in the media are starting the year by sifting through the stock market tea leaves; trying to figure out what historical data can tell us about probabilities and expectations for the next twelve months.

Some think the United States is poised for a market rebound, while others remain quite bearish, feeling that negative policy implications have yet to be fully realized.

Peter Tuchman of Trademas Inc. joined Neil Cavuto on his Fox News program Friday, to offer his thoughts about where the American stock market might be headed in light of the newly-divided United States Congress.

“Markets have a sort of a gut of their own,” Cavuto opened. “Today’s a good example. We’re up 300 points, ended up down 112 points. What’s going on?”

“Markets don’t like unknowns, and markets need confidence. The investing community needs confidence,” Tuchman said. “And I think it’s going to take a lot of work to rebuild that. And as we saw the other night with what went on in the House, it feels like people should get busy governing as opposed to all this posturing.”

Six months ago, Tuchman didn’t have a solid feel for the direction of the market. And just two trading weeks into the year, he still doesn’t believe any real trend has been established.

“The market has yet to find its ground. It’s yet to find its footing,” Tuchman told Cavuto. “And still, even coming into 2023, the first week of trading we have not found our footing. We have come in on a couple of economic notes that were a little bit positive. We opened up with a little bit of irrational enthusiasm. By the end of the days we were trading down.”

Meanwhile, some financial outlets, such as CNBC, have dug into the data showing what a market rise during the year’s first week – such as what we experienced this year – potentially means for the rest of 2023. They published a story last week with the headline, Simple ‘first five days’ stock market indicator is poised to send a good omen for 2023“.

On an episode of his popular YouTube program late last week, James from Invest Answers dug into 73 years of stock market data, to test that theory and see if the first five days of yearly stock market performance are an indicator of what the market might do over the full year.

“Some analysts pay attention to this, the first five trading day performance, can it be an indicator of a good year or a bad year,” James began last week, “I wanted to dig into all of that and get the answer for myself. Because some people think yes. Some people swear blind by it. Some people think it’s a myth or an old wive’s tale. Some people think it’s a great omen.”

After some rigorous data analysis, the thoughtful, numbers-based host was able to formulate some potential conclusions.

Based on James’ analysis…

If the gains from the first five market days of the year are negative, the market rises 86 percent of the time over the full year, with an average gain of 6%.

If the first five days are positive, the market increases 92% of the time, with an average yearly gain of 16%.

Most importantly, in this year’s scenario, where the first five days saw a jump of more than 1%, the market traditionally ends positive for the year 95 percent of the time. Those years see an average yearly gain of 18%.

“Is it a good omen, does it look bullish?” James asked. “Well, yes, based on history. But remember, there are factors like inflation, interest rates, geopolitical turmoil, supply chains, slowing economy. All that stuff is in play. But history also says that the market bounces bounces back before the market even realizes it’s in a recession. That’s an important thing to know.”

On his Your World program, Cavuto wondered if the recent House speaker voting drama has added to the uncertainty facing markets.

“Historically, Wall Street definitely is a bit more friendly to a Republican administration,” Tuchman said. “We’re in new ground, there’s no playbook, Neil. And I went over it with you the last time. There’s no playbook for coming out of a pandemic. No playbook for what’s gone on over the last two and a half years. Let’s think about it. March 2020, the market sold off so radically. We had a rally of 20 percent in 2020. 28 percent in 2021, in the eyes of a global economic shutdown due to the Federal Reserve’s posturing and whatnot.

“And now we’re trying to unwind that position. In tech, and in possible recession, and inflation and supply chain issues. So, there’s no way historically to make a judgment on what the future looks like in that realm, let alone what’s going on in the dis-functionality of what’s happening in Washington. I would like to disengage what’s going on in Washington and try and rebuild the confidence in the market coming into 2023.” 

So while the data might indicate a strong year ahead, the fact is that many analysts still won’t make that definitive call amidst such economic turmoil gripping the country. 

Along with U.S. markets, they remain steadfast in their search for solid footing.

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BNM Writers

Does Radio Need A Video Star?

If there’s revenue attached, the debate is over. If there isn’t a deal on the table, and there aren’t already orders to monetize a video stream, it’s likely coming soon.

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Last week numerous stories about using video with broadcasting or audio podcasting became a hot topic of discussion.

A Morning Consult poll found that 32% of Americans prefer podcasts with video, compared with 26% who like just audio better. Among podcast listeners, 46% said they favor them with video, compared with 42% who said they would rather listen without video. It’s worth noting that these are podcast listeners, not radio listeners.

Video has become the latest trend in audio. Almost everybody is trying to do some form of video. Many shows already stream online. A few others simulcast on a television or cable channel. It seems nobody believes in pure audio anymore. It’s a wonder everybody didn’t go into television instead of radio.

Before everybody else starts adding webcams in the studio, it’s worth weighing the reasons to move ahead versus slowing down.

The first person to realize they could use video of their show may have been Howard Stern. In June 1994, Stern started a daily half-hour show on E! network, featuring video highlights from his radio show. Stern added slick production values and faster pacing on the E! show.

Don Imus started simulcasting on cable during the same month. It’s possible others that I’m not aware of started earlier.

Stern’s E! show made sense. It answered the most common questions people asked about the show, in addition to what’s he really like; the first questions people usually asked were: 1) Are the women really as good-looking as he says? 2) Do they really take their clothes off? The E! show answered those questions. In addition, it gave a backstage glimpse of the show.

The same month Stern’s E! Show began, Imus began simulcasting his show on cable networks. I would have feared losing ratings. In fact, Imus’ program director did!

I spoke to my long-time friend and colleague Mark Chernoff (Current Managing Director of Mark Chernoff Talent and on-air talent 107.1 The Boss on the NJ Shore, Former Senior VP WFAN and CBS Sports Radio, VP Sports Programming CBS Radio) about the impact simulcasting Imus’ show had on WFAN. Chernoff may have the broadest range of experiences with simulcasting radio programs with video. 

Imus began on CSPAN but shortly afterward moved to MSNBC. Chernoff told me: “When we started simulcasting Imus, I suggested we’d lose about 15% of our radio audience to TV, which we did.” Chernoff added that there was a significant revenue contribution and that the company was content with the trade-off.

WFAN had a different experience simulcasting Mike and the Mad Dog on YES in 2002. “In this case, TV was helpful, and we increased listenership,” said Chernoff. WFAN also benefited financially from this simulcast.

Imus was on in morning drive while Mike & the Mad Dog were on in the afternoon. Keep the era in mind, too. Before smartphones and high-speed streaming, it was not uncommon for people to have televisions in the bed or bathrooms and have the tv on instead of the radio as they got ready for their day. In the afternoon, fewer people would have had video access in that era.

Ratings measurement moved to Portable People Meter (PPM) by the time WFAN started streaming middays on its website. Chernoff reported streaming had no ratings or revenue impact – positive or negative – on middays. However, the company did provide an additional dedicated person to produce the video stream.

The early forays into video by pioneers such as Stern, Imus, and Mike & the Mad Dog are instructive.

There are good reasons to video stream shows. Revenue is a good reason.

If there’s revenue attached, the debate is over. If there isn’t a deal on the table, and there aren’t already orders to monetize a video stream, it’s likely coming soon.

Another good reason is if the video can answer questions about the show, as the E! show did for Howard Stern.

On the other hand, audio companies are going to throw a lot of money at video, based on the notion that it’s what they “should” do because:

  • It’s the latest trend. Being late on this trend is different from missing the Internet or Podcasting. Industries already revolve around video; television and film come to mind.
  • Podcast listeners like it (by a slight plurality).

Before turning on webcams, see what viewers will see. The studios at many stations I’ve worked at were better not seen. Considerations include; the set, lighting, wardrobe, visuals, and a plan.

Too many video streams of studios feature the fire extinguisher prominently in the shot or the air personalities milling about during terminally long breaks.

Before going live, watch the video with no audio. Is it interesting? Compelling? Does the video draw you in, or is it dull?

With program directors now spread so thin handling multiple stations, a dedicated person to oversee streaming should be a requirement for stations streaming shows.

Other considerations:

  • How could this help us, and how could it hurt us?
  • How does the video enhance the show?
  • Will personalities do their radio show or perform for the cameras?
  • What production values are you able to add to the video?
  • What happens during those seven- eight-minute breaks if it’s a live radio show (vs. a podcast)? What will people streaming video see and hear? Does everybody on the show get along?

Do you have revenue attached? What do you expect will happen to the ratings?

WFAN earned significant revenue for two. Therefore, the company wasn’t concerned when the ratings took a hit for the first one and were surprised when they helped the second one. They didn’t see any impact on ratings or revenue the third time.

After all the budget cuts and workforce reductions over the past decade-plus, before audio companies invest in video, shouldn’t we get: people, marketing, promotion, or research monies back first?

Most of us decided to get into radio (or podcasting) instead of television or film. There’s a reason they said, “video killed the radio star.”

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BNM Writers

Streaming Platforms Cannot Be Forgotten By News/Talk Program Directors

BNM’s Pete Mundo writes that if you’re a News/Talk program director, you run two radio stations and what comes through the streaming platforms.

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If you’re a News/Talk program director, you run two radio stations. Didn’t you know that? Oh. Well, you do. 

I’m not just referring to our over-the-air broadcast but also what comes through our streaming platforms. Alexa, Google Home, apps, computers, etc., are all streaming platforms of our radio stations, which for most of us, are airing different commercial inventory than what is coming through the radio.

I understand none of us are unnecessarily looking to add to our plate, but our streaming platforms are the way we are getting more people to use our product. So neglecting, or forgetting about it, is a bad business decision, especially in the talk space. 

Across all clusters, talk radio is far more likely to have high streaming use when it comes to total listening hours. Listeners are more loyal to our personalities and often can’t get the AM dial in their office buildings during the day, or even if they can, they don’t want to hear our voices through static, so they pull up the stream. 

It’s never been easier to listen to talk radio stations, thanks to our station apps and websites (although welcoming some sites to the 21st century would be a good idea). So, given the challenges many of us face on the AM band, why not push our audience to the stream and make sure the stream sounds just as good as the over-the-air product?

The tricky part in putting together a quality stream sound is trying to balance what ads are programmatic, which ones are sold locally, where is the unfilled inventory and what is filling that gap?

And unlike your over-the-air product, where you can go into a studio, see what’s coming up, and move inventory around, that technology is not available in most cases. So yes, it’s a guessing game.

But as the talk climate continues to change, the best thing we can do to build our brand and trust with the next generation of talk radio listeners is to find them and engage them where they are, which may not always be next to a physical radio. That will be on a stream. How do I know that? Because if they have a smartphone, they have (access to) the stream.

Of course, the over-the-air product remains the massive revenue generator for our stations, as in most cases, the streaming revenue is not close to comparable. But then, if we look years down the road, that will likely start to change. 

To what degree? That’s unknown. But double-digit growth on an annual basis should not be out of the question when it comes to stream listening. It should be a very achievable goal, especially in our format. So our listeners who are P1’s, love the station and want to consume as much of the content as they can, can be on the AirPods in the gym, desk at work, or in their home office and listen to our radio stations. 

Heck, with Alexa and Google Home, they don’t even have to turn a dial! They just speak. So if they’re there, let’s keep them there.

There are simply too many media options today to lose our listeners due to sloppy streaming quality that makes us sound like a college radio station. Instead, listeners, who find us there should be rewarded with a listening experience that is just as high-quality as what they would get on the AM or FM band.

And if we play our cards right, it will be better, serving the industry incredibly well through a new generation of listeners.

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