Free Speech

Baltimore Prosecutor Asking FCC to Investigate TV Station for Criticizing Her

The elected prosecutor (Baltimore State’s Attorney Marilyn Mosby) is claiming that the station's coverage of her is "blatantly slanted, dishonest, misleading, racist, and extremely dangerous."

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Here is the complaint letter, sent to the head of the FCC, signed by the Baltimore City State's Attorney's Office Communications Director:

This is a formal complaint requesting an investigation into the broadcasting practices and media content distributed by FCC-licensed station WBFF, a Baltimore City-based Fox News-affiliated network, specifically the content distributed to the public about the Baltimore City State's Attorney's Office (SAO), a government entity, and its lead prosecutor, State's Attorney Marilyn Mosby that upon viewing could reasonably be categorized as blatantly slanted, dishonest, misleading, racist, and extremely dangerous.

Under the FCC's rules, "[b]roadcasters may not intentionally distort the news," and "rigging or slanting the news is [deemed] a most heinous act against the public interest." Given that FCC guidance, an investigation into the persistent and slanted broadcasts of WBFF against our office and the State's Attorney would prove that the WBFF administrators are guilty of such "heinous act[s]."

In my capacity at the States Attorney's Office, I have noted that the news coverage of the WBFF persistently follows a disconcerting and dangerous pattern: beginning with a slanted, rigged, misleading, or inflammatory headline; followed by a conspiracy theory; and supported with guest commentary from disgruntled ex-employees or political opponents that lend false credibility to their biased coverage or omission of facts. Utilizing this pattern of practice in their broadcasts, citizens are not only consistently misinformed about the basis and intent of prosecutorial policies, additionally the merit of criminal convictions are distorted to detract from the public good championed by prosecutors. Most disturbingly, there appears to be an intentional crusade against State's Attorney Mosby, which given today's politically charged and divisive environment, is extremely dangerous.

In assessing the news content generated in Baltimore City, I am struck by the frequency of coverage by the WBFF about the State's Attorney's Office and its head SA Marilyn Mosby. In 2020, there were 248 stories by the WBFF solely about SA Mosby. In comparison, other local news networks ran significantly fewer stories.  When assessed over the same period in 2020, Baltimore City stations did the following: WBAL – 26 stories; WJZ – 46; and WMAR – 10. So far in 2021, the WBFF has run 141 slanted stories.

While the frequency of coverage in question by the WBFF would give any reasonable person pause, it is the tone of the coverage that violates the FCC rules. The coverage by the WBFF represents acts that are not merely against the public interest; they also represent acts that are inflammatory against the safety of an elected official. In the public sphere, Fox News is infamous for its bias against people of color, and even more against those who could be deemed "progressive" people of color. Currently, the Fox national news network airs a nightly show with Tucker Carlson, despite recent calls by civil rights groups to terminate his employment because of Carlson's frequent endorsements of white supremacy views. In 2015, the WBFF was forced to apologize for editing a video to make it falsely appear that Black protesters were chanting "kill a cop!"

Over the last few years, it's become clear that the publication of the home addresses of elected and public officials—particularly when released by a politically charged media or network—creates a risk to the lives of those public officials and their families. Nonetheless, in 2020, while running one of its distorted news stories about the State's Attorney, the WBFF deliberately broadcast the home address of State's Attorney Mosby on live TV during one of its news segments. It is hard to see this as a mistake given the known risk to SA Mosby, her husband, and her children residing in the home.

As if that violation was not enough, the WBFF demonstrated that their heinous acts and deliberately dangerous activities had no boundaries when, in April 2021, they made a formal inquiry attempting to find out the schools the SA's children attended. Since taking office over 6 years ago, the State's Attorney has received innumerable personal death threats and hate mail, including letters describing how her husband would be killed on the steps of her home.

These threats against SA Mosby are facts known by the WBFF—they aired reports of the numerous death threats made against her. As such, when the WBFF network and its administrators willfully publicize the State's Attorney's home address, and when they take further steps to facilitate the publication of where her young children attend school, their acts rise beyond mere professional irresponsibility and become what can only be reasonably deemed malicious, against the public interest, and a pointed threat to the safety of the State's Attorney's life and that of her family.

Below are a few instances of the WBFF's distorted coverage about the State's Attorney's Office and its leadership

4.15.21 | Rollout of new policies by Marilyn Mosby needed more collaboration, experts say | It's been about three weeks since City State's Attorney Marilyn Mosby doubled down on her plan to permanently stop prosecuting what she calls "low-level" offenses.

4.1.21 | Marilyn Mosby Claims 93% Felony Conviction Rate – here are the cases she doesn't count | Baltimore City State's Attorney Marilyn Mosby says 93% of felony cases ended in convictions in 2020, but not everyone is convinced.

9.25.20 | Connection to Dark Money Looks to Shape Prosecution of Police | Dark money is shaping the way Baltimore City addresses crime. The authors of an op-ed that appeared in The Baltimore Sun this week describe themselves as being former federal prosecutors.

9.17.20 | Baltimore City State's Attorney Avoids Oversight | Findings from an Operation: Crime & Justice investigation show City and State watchdog agencies don't audit City State's Attorney Marilyn Mosby's Office.

9.14.20 | Role Top Prosecutor Plays in Baltimore Violence | Since the riots in 2015, Baltimore City has seen hundreds of lives lost. Sean Kennedy who is a visiting fellow at the Maryland Public Policy Institute tells Fox45 News, "The State's Attorney is a crucial player in curbing crime in any jurisdiction."

7.21.20 | Money Machine Behind Mosby's Trip | The money machine behind Marilyn Mosby's 2019 Europe trip has many moving parts.

As you can see from the examples cited, the broadcast and news coverage by the WBFF about the Baltimore City State's Attorney Office, and more specifically against the State's Attorney, are so slanted that they are not simply a "dog-whistle" to the right-wing, they have become a megaphone that amplifies, encourages, and provides fodder for racists, throughout the city and beyond, to continue sending hate mail and death threats. This sort of coverage incites racists to act upon their animus for the State's Attorney.

Two years ago, pipe bombs were sent to George Soros and other elected officials after Fox News spent years broadcasting stories that set Soros up to be a villain. Just last month, Baltimore City-based Fox 45 was accused of peddling anti-Semitism by Media Matters following yet another biased news segment that aired on SA Mosby, within which she was accused of being a George Soros "puppet" that was "bought and paid for" [Note: State's Attorney Mosby has never received a penny from George Soros or any of his political groups]

To be clear, the State's Attorney's Office is not above receiving criticism. We welcome being held accountable, and we support First Amendment freedom of speech. However, what we find troubling, abhorrent, and outright dangerous, is that the distinctly relentless slanted broadcast news campaign, against the Baltimore City State's Attorney's Office and its lead prosecutor, has the stench of racism.

Before presenting this complaint to the FCC, in my capacity as Director of Communications, I've made several complaints to the Baltimore City WBFF station regarding its frequent, disturbing, and slanted news coverage. Those efforts this past year, included in-person meetings and phone calls with producers and news station managers. In fact, I've made every effort to request that the WBFF cease its intentional distortion of the news; but we have yet to see a reversal of their direction.

The truth of the matter is I am deeply concerned that if the WBFF's coverage is not curtailed and ceased, then someone is going to get hurt. I implore and encourage you, Madame Chairwoman and Commissioners, to enlist the full investigative and enforcement powers granted to you by the Federal government to take action against the WBFF as soon as possible.

Note that even in the 1969 FCC statement that calls "[r]igging or slanting the news" "a most heinous act against the public interest," the FCC made clear that:

But in this democracy, no Government agency can authenticate the news, or should try to do so. We will therefore eschew the censor's role, including efforts to establish news distortion in situations where Government intervention would constitute a worse danger than the possible rigging itself.

Given the lower level of First Amendment protection that the Court has historically given over-the-air television and radio broadcasting, some policing by the FCC of alleged "distortion" has been allowed (see, e.g., Serafyn v. FCC (D.C. Cir. 1998)). But I note that none of the letter's claims of "distortion" are supported by any actual explanation of why the stories are supposedly inconsistent with the facts.

Nor would it be constitutional under modern First Amendment doctrine for the government to censor broadcasting speech because it's supposedly "racist"; whatever content-based broadcasting regulation may be permissible, it can't be viewpoint-based. (Cf. FCC v. Pacifica Foundation (1978), where the Court upheld the "seven dirty words" ban, but the lead opinion noted that "If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content—or even to the fact that it satirized contemporary attitudes about four-letter words—First Amendment protection might be required," and Matal v. Tam (2017), which condemned viewpoint discrimination even in government-operated benefits such as trademark registration.)

I also don't know of any FCC policy that bans the publication of the home addresses of politicians (or of others). (The story in which her address appeared was "The road to a federal tax lien: How the Mosbys could have avoided tax trouble"; the address was apparently on photos of the tax lien, from public records, though it was fuzzed out on the web site version, after Mosby's office complained.)

And certainly critical news coverage, whether of prosecutors, police officers, or anyone else, can't be suppressed on the grounds that some tiny fraction of the audience may be so angered by it that they will commit crimes against the people being criticized. I expect the FCC to (rightly) dismiss the complaint. Thanks to Larry Seltzer for the pointer.

NEXT: We Reply to Anonymous Above The Law Columnist's Response to Our "The New Taboo: Quoting Epithets in the Classroom and Beyond"

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  1. Under the FCC’s rules, “[b]roadcasters may not intentionally distort the news,” and “rigging or slanting the news is [deemed] a most heinous act against the public interest.” Given that FCC guidance, an investigation into the persistent and slanted broadcasts of WBFF against our office and the State’s Attorney would prove that the WBFF administrators are guilty of such “heinous act[s].”

    And yet, somehow, CNN still exists.

    1. Just for fun, take ten randomly selected news stories in which CNN and Fox News disagree on the facts, on which it is possible for you to independently verify the facts for yourself. (For example, Fox News’ claims during most of the 2016 election that we had a terrible economy.) Then do the independent verification. You’ll find that CNN’s reporting is closer to the truth far more often than Fox’s.

      1. This is simply not true, like most of what CNN “reports”….

        1. The complaint is filled with adjectives. The FCC should request specific allegations of acts, the times, the people involved.

          1. All media are now the David Duke hate speech propaganda outlets. They all lie by omission, and provide only stories that make their political adversaries look bad. All are outlets of propaganda for their billionaire owners, and 90% are Democrat propaganda, basically uninformative, useless partisan agenda garbage.

            The sole exception is C-SPAN. Brian Lamb once said, he counts story to assure balance. That balance is required by the journalism Code of Ethics. Violations of provisions in that code justify the loss of immunity by the Free Press Clause as in defamation claims.

          2. The Democrat complaint is barely literate. It shows no evidence of any legal training.

        2. Fox News is on record as admitting that they are not factual. That is their defense to libel suits.

          1. Shockingly this claim, published in NPR among other outlets and widely believed on the left, is not factual.

            Although sometimes Fox News, like all news/opinion TV, sometimes uses hypothetical examples or even hyperbolic rhetoric.

            1. “Shockingly this claim, published in NPR among other outlets and widely believed on the left, is not factual.”

              It certainly is. An opinion dismissing one of these lawsuits, citing Fox New’s argument that it is not factual, is here:

              https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2019cv11161/527808/39/

              I suppose you’re now going to say that law.justia.com fabricates the many thousands of court orders it publishes.

              1. “I suppose you’re now going to say that law.justia.com fabricates the many thousands of court orders it publishes.”

                I’m going to say that your link doesn’t support your claim that Fox News is, as a general matter, “not factual”.

                Although it does support the claim that Fox News sometimes uses non-factual devices, like hypothetical situations and hyperbolic rhetoric. But all news/opinion programming does that.

              2. The standard defense against libel claims is that the statement in question is opinion, not fact. The NYT did this as recently as two months ago – https://www.realclearpolitics.com/articles/2021/03/25/nyts_libel_defense_no_need_for_opinionfact_labeling_145476.html

          2. “Fox News is on record as admitting that they are not factual. ”

            Gaslighting.

            They said an opinion on an opinion show was an opinion and not a fact.

            “he was delivering an opinion using hyperbole for effect.” from the opinion you cite below

        3. And Jimmy, how do you know it’s not true? Did you actually do the independent verification like I suggested?

          1. Yes I can individually verify that CNN is a leftist hack axe grinding organization. Just look at the take their very own staff have on the organization. This is so obvious that anyone with one eye can see it.

            1. So in other words you didn’t actually check and you don’t actually know.

              1. See Project Veritas. That is all anyone needs to know.

      2. That may be your idea of fun!

      3. “For example, Fox News’ claims during most of the 2016 election that we had a terrible economy.”

        Cite?

        1. You don’t remember that? It wasn’t that long ago.

          1. Then surely you can provide some evidence.

              1. Thanks. Here’s a similar article on CNN.

                They blame Trump. One’s not jumping out at me as being more accurate than the other.

              2. Gaslito again!

                Even the link says it was an “opinion”.

                The challenge was to find “randomly selected NEWS stories”.

                1. Hey, I was quite transparent with what I did. Fuck you for calling me a liar.

                  1. Yes, it was quite clear what you did. When asked for a **news story**, you provided a link to an “opinion”, added commentary that misleadingly said you did not ” click through to the **story**” , and when called out, responded with “fuck you”.
                    Classic liberal.

              3. Well they actually cite the undisputed numbers in the piece, and I concur in their opinion that 1.1% GDP growth is dismal, not a recession maybe, but you can see one from there:

                “We got revised GDP numbers from the Commerce Department on Friday and the economy actually did slightly WORSE than originally estimated. Growth was 1.1 percent in the second quarter of this year and less than 1 percent for the first six months of 2016.”

                1. I’m missing the problem in the quote. I’m assuming that’s annualized growth, no?

              4. Quick and dirty Google. Did not click through to the story.

                No need to bother with checking out whether or not you’re linking to something that says what you’re claiming it says….when you have absolutely zero concern for honesty.

                1. The article is pretty plain why they thought they economy was in bad shape, if Sarcastro read it.

                  The real mystery is why Krychek would beclown himself claiming that complaining about 1% economic growth was dishonest.

                  1. That one story was not what I had in mind. Go back and look at Fox’s coverage of most of the 2016 campaign. They constantly and repeatedly made claims that Obama’s economy was in the toilet, despite the objective numbers showing otherwise.

                2. Dude, I said what I did, I claimed nothing beyond what I said.

                  And yet you call me a liar because…well, because you have trouble with people who disagree with you.

      4. I have done precisely the comparison you suggest, though filtered to stories about which I have personal knowledge or expertise. While every story I reviewed contained at least one error, the errors in the CNN stories were more substantive.

      5. “Fox News’ claims during most of the 2016 election that we had a terrible economy.”

        Yet there was room for it to get better:
        ’19 3.7%
        ’18 3.9%
        ’17 4.4%
        ’16 4.9%

      6. (For example, Fox News’ claims during most of the 2016 election that we had a terrible economy.)

        Um, CNN itself characterized 2016’s 1.6% growth rate as “slow” and “weak.”

        If you’re just splitting hairs over exactly how bad the economy has to be to qualify as “terrible,” that’s pretty weak sauce.

      7. Russia collusion hoax, fine people hoax, drinking bleach hoax, koi feeding hoax, Covington kids hoax and libel suit payout….. I’ve lost track of the number of false claims by CNN.

    2. Setting aside the lame slam at CNN, it is not a broadcaster but a cable network and therefore does not fall under the FCC’s rules in this regard.

      1. CNN is Democrat garbage propaganda all the time. It should be boycotted.

      2. Yep, same as FoxNews, which of course is different than local Fox affiliates.

    3. Umm — CNN doesn’t use the limited resource of the broadcast spectrum.

    4. CNN is a cable network, not a broadcaster. The cited rule wouldn’t apply to CNN.

  2. Is it too much to hope that Fox 45’s next story is about a SA trying to trample on the 1st Amendment rights of a local TV station?

  3. How tone deaf, head-in-the-sand, do you have to be to write this:

    “a disconcerting and dangerous pattern: beginning with a slanted, rigged, misleading, or inflammatory headline; followed by a conspiracy theory; and supported with guest commentary from disgruntled ex-employees or political opponents that lend false credibility to their biased coverage or omission of facts.”

    And not understand that as the MO for basically the entire media from 2016-2020 for anything relating to Trump.

    1. So…you think it is not okay w/r/t Trump, but cool if it happens to people you don’t like?

      1. It is what it is, I don’t remember Trump complaining to the FCC, despite numerous completely false stories. If Moseby actually had a list of completely false stories that were published to bolster her case Imay view it differently, say something like these:

        Donald Trump Jr. had advance access to WikiLeaks data.

        Micheal Cohen’s cell phone was pinging cell phone towers in Prague.

        Trump had a secret server on the internet to covertly communicate with a Russian bank

        There’s a lot more:
        https://theintercept.com/2019/01/20/beyond-buzzfeed-the-10-worst-most-embarrassing-u-s-media-failures-on-the-trumprussia-story/

        1. Trump’s campaign sued CNN because it didn’t like their coverage. Is that substantively different than complaining to the FCC?

          1. Yes, Virginia, a private party filing a defamation lawsuit over specific allegedly false statements is substantively different than a government actor asking another government actor to “investigate” the publication of a series of articles that, while clearly unflattering to her, she not once claims to be factually inaccurate.

            1. Appropriate FCC investigation:

              (A): Could you comment on this? Just so we have something for the file…

              (B) Call my secretary if you wish to send a crew down to interview me. I can’t use the term “unmitigated bullshyte” on camera but *will* gladly tell you how the FCC defends free speech.

              1. On a more serious note — this is “news” — and gives them a reason to re-run all the stuff that she’s upset about.

          2. Trump’s campaign sued CNN because it didn’t like their coverage. Is that substantively different than complaining to the FCC?

            Not understanding the blindingly obvious differences between those two things should disqualify you from ever making another comment ever again on this or any other law blog.

    2. Her one claim that has some validity was stating which schools her children attended — unless it was relevant to some sort of fraud, e.g. she pulling strings to get them into out-of-district schools. Otherwise, no — and I think that would be FERPA protected as well.

      She’s as bad as Boston’s Rachael Rollins who threatened to fabricate charges against a TV reporter — on camera.

      Question: At what point does the Bar Assn get involved?

  4. upon viewing could reasonably be categorized as blatantly slanted, dishonest, misleading, racist, and extremely dangerous.

    Boom, there it is. “Dangerous” as reason for censorship, expanding to use against political opponents.

    We saw this already at the national level, taking over from mere “harrassing” tweets as reason companies should censor political opponents.

    And here we are, at the local level.

    Dictatorships couldn’t be more proud at the way the world is going.

    1. Higher ed was using this “dangerous” standard 15 years ago — it’s amazing how much stuff has percolated out of the purgatorial cesspool….

  5. A state functionary requests that another state functionary to investigate and censor news media critical of her.

    What could go wrong?

    1. Oh, nothing at all could go wrong. Just consider the source. 🙂

    2. Notice how all the rancor over “freedom of the press” the leftist media liked to make noise about seems to be all but quiet about this. Wonder why…..?

  6. This would, of course, be the same states attorney who, along with her husband, a former councilmember, are currently under federal investigation For assorted alleged wrongdoing.

      1. Shocking that there is corruption in a city where the prior two mayors both were convicted.

        1. Interesting story. After the second consecutive mayor was convicted, a local news reporter on Baltimore TV made the comment that it might be Time for the city to have “a different type of person“ in public office. Any person with a half an ounce of brains would have known that she meant, “people who aren’t crooks.“ But because we live in Woke times, her comment was twisted into somehow meaning, “people who are not black.“ She was forced to apologize and was ultimately fired.

        2. Before or after they were elected?

    1. Oh you must not have heard. She said the investigation is only because of a personal grudge held by corrupt federal attorney’s. For real.
      Everyone is just out to get her because of the great work she is doing to stop Baltimore’s insane levels of crime.

  7. Charm City, hon!

  8. Interesting. So elements of the fairness doctrine still exist on the books, even though the doctrine has long been unenforced and its main elements have been formally repealed.

    I understand Red Lion Broadcasting v. FCC has never been overruled, although it has arguably been undermined, and the limited availability of beoadcast spectrum is likely less of an issue given the advance of cable, telecommunications satellites, the internet, smart phones with video etc. that have occurred after it was decided in 1969.

    1. No, it’s that the broadcast spectrum be used “in the public interest” and she’s alleging that this isn’t “in the public interest.”

      I believe that’s Federal law, but it’s been a long time since I read the relevant statutes.

    2. Red Lion itself discussed whether or not advances in technology prior to 1969 undermined the idea the public broadcasting had reduced first amendment protection, and the standard was something like, is scarcity entirely a thing of the past.

  9. in the complaint, the phrase, “…pipe bombs were sent to George Soros and other elected officials…”

    While Soros certainly owns a great many elected officials [particularly AGs] this doesn’t make him elected.

    1. While we’ll never know it — and for good reason, can’t know it — I’d love to know how many credible threats the US Secret Service had to deal with during the Trump administration.

      My guess was that it was a lot…

      And for what it is worth, a good chunk of Downtown Bangor had to be evacuated when Susan Collin’s husband opened a letter that purported to be filled with something nasty — fortunately, it wasn’t but the BFD didn’t know that at the time…

      For my many critics: https://www.cbsnews.com/news/susan-collins-maine-home-suspicious-letter-police-investigate/

  10. The real news here would be a Baltimore politician NOT being investigated for corruption.

  11. As a complaint is filed with the FCC, so should the lawyer for the station report this lawyer to the Disciplinary Counsel for filing a formal legal complaint with no merit. It is to abuse its position for crass, partisan, unjust political bullying.

    1. No, not unless it alleges things that the station didn’t do, e.g. stuff it never broadcasted.

      This isn’t a “legal complaint” — it’s asking a bureaucracy to look into something.

      1. Doctor, from the “complaint”: “This is a formal complaint requesting an investigation into the broadcasting practices and media content…” Even if it lists allegations, none are violations of any cited FCC rule. I would be interested in a citation of the FCC reg that slanting the news is prohibited. For example, daily discussions of Trump’s hair or of his typographical errors is slanting the news, basically open hate speech.

  12. Could you imagine what the headlines would be if a Trump official would have asked the FCC to investigate a blatantly false story reported by CNN? It would be framed as the end of our democracy.

    1. Would have been something more than this.

  13. In local news, crime is down and such rare crimes as occur, are satisfactorily dealt with by the DA’s office.

    In weather news, we’re predicting warm summer showers descending on our legs from the direction of Mosby’s dick.

  14. Could this be the most two-faced District Attorney since…well, since Two-Face?

    1. I pray what happened to Two Face does not happen to this Democrat prosecutor.

  15. How did Ms. Mosby get a law degree and pass the bar exam without learning about the 1st amendment?

    1. Or about the English language. She is barely literate.

  16. It’s interesting that she uses the number of stories about her office by different news outlets as a metric of bias requiring FCC intervention. If the FCC were to accept that argument, it would have an obvious chilling effect on all broadcasters as they would rationally minimize coverage of her office to avoid a similar investigation. The fact that she would use the FCC in this manner should disqualify her from public office. That would have a desirable chilling effect on other public officials acting in similar ways.

  17. There was a case about 20 years ago which liberals spun along the lines of “Fox News sued and won the right to lie.” Fox News or a Fox affiliate fired a reporter. Reporter alleged retaliation for telling the FCC that a news report was inaccurate. Fox won because the FCC does not have authority to declare the official truth of news broadcasts. The complaint was not about a matter within the agency’s jurisdiction. If the reporter had told the FCC that the station was exceeding the broadcast power limit of its license, or not making its quota of local interest news, then the complaint would have been protected.

    I did not find the case in a minute of searching. If anybody recognizes it please drop a citation in a reply.

    1. Close , but not quite. This is the story – https://www.snopes.com/fact-check/fox-skews/ – and Fox won the court case because the court found the firing was not a breach of contract, and the complaint to the FCC was dismissed because the FCC determined that conflict between the reporters and the Fox affiliate was an “editorial dispute … rather than a deliberate effort … to distort news.”
      But yes, this debunked hoax refuses to die, and repeatedly makes the rounds as “Fox sues for the right to lie” or other some such liberal claptrap

      1. Here’s the part I was thinking about in the Appeals Court case:

        Because the FCC’s news distortion policy is not a “law, rule, or regulation” under section 448.102, Akre has failed to state a claim under the whistle-blower’s statute.

        (It was a Florida state court case, which is why I didn’t find it searching the 11th Circuit.)

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