Click here for Microsoft Word Version
******************************************************** 
                      NOTICE
********************************************************

This document was converted from
WordPerfect or Word to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Word or WordPerfect version or Adobe Acrobat version (above).

*****************************************************************



                         Before the
              Federal Communications Commission
                   Washington, D.C. 20554

In the Matter of                  )
                                 )
R. J.' S LATE NIGHT               )   EB-01-IH-0003-KMS
ENTERTAINMENT                     )   Facility #54428
CORPORATION                       )
                                 )
Licensee of Noncommercial         )
Educational Station WHPR-FM, 
Highland Park, Michigan

                MEMORANDUM OPINION AND ORDER

     Adopted:  June 13, 2001                 Released:  June 
14, 2001

By the Chief, Enforcement Bureau:

                       I. Introduction

     1.   In this  Order, we  admonish R.  J.' s  Late Night 
Entertainment  Corporation  (``Late  Night''),  licensee  of 
noncommercial  educational station  WHPR-FM, Highland  Park, 
Michigan,  for broadcasting  advertisements in  violation of 
Section 399B of  the Communications Act of  1934, as amended 
(``the Act''),  47 U.S.C. 399b,  and Section 73.503  of the 
Commission's   rules,  47   C.F.R.  73.503.1    Late  Night 
responded  to our  January 19,  2001, inquiry  by submission 
dated  February 8,  2001.   We have  carefully reviewed  the 
record, including  Late Night's response, and  conclude that 
the  licensee  has  violated  the  pertinent  statutory  and 
Commission underwriting  rule provisions.  While  we believe 
that no monetary sanction is warranted at this time, we find 
that an  admonishment is necessary to  redress the statutory 
and  rule  violations.   Moreover,  we believe  that  it  is 
appropriate  to  specifically  advise   Late  Night  of  our 
concerns so that rule compliance may be fully achieved.

                       II.  Background

     2.  Advertisements  are defined  by the Act  as program 
material broadcast  "in exchange  for any  remuneration" and 
intended to  "promote any service, facility,  or product" of 
for-profit entities.   47 U.S.C. 399b(a).  As  noted above, 
noncommercial   educational  stations   may  not   broadcast 
advertisements.    Although   contributors   of   funds   to 
noncommercial stations may  receive on-air acknowledgements, 
the Commission  has held  that such acknowledgements  may be 
made  for  identification  purposes  only,  and  should  not 
promote the contributors' products, services, or business.  

     3.  The  Commission noted that  it may be  difficult at 
times  for licensees  to distinguish  between language  that 
promotes   versus   that   which   merely   identifies   the 
underwriter,   but    expects   that    licensees   exercise 
``reasonable,  good  faith  judgment'' in  this  area.   See 
Xavier University, 5 FCC Rcd 4920 (1990); Public Notice, "In 
the  Matter   of  the   Commission  Policy   Concerning  the 
Noncommercial Nature of  Educational Broadcasting Stations," 
(April 11, 1986), republished, 7 FCC Rcd 827 (1992).  As the 
Commission  made   clear  in   Xavier,  it  will   not  deem 
announcements impermissible where the  ``language at issue . 
. .   is not clearly  promotional as opposed  to identifying 
and  . .  .  the licensee  exercised reasonable,  good-faith 
judgment regarding the language. . .  .''  

                      III.  Discussion

     4.   The key  facts in  this case  are not  in dispute.  
Late  Night does  not deny  that the  station broadcast  the 
sponsored announcements  described in our letter  of inquiry 
and set forth  in the attached transcript.   Late Night also 
admits that ``5  of the 6 announcements''2  appear to exceed 
what is permissible under Section 399B  of the Act , and the 
pertinent  Commission policies  and  rules, ``because  these 
acknowledgments  go  beyond   pure  identification  and  are 
arguably  promotional  in  nature.''   However,  Late  Night 
argues   that   the    ``inappropriate   nature''   of   the 
announcements subject  to our  January 19, 2001,  inquiry is 
``very different  from the  inappropriate nature''  of those 
subject  to our  earlier  inquiry.3   Therefore, Late  Night 
contends  that   the  station's   broadcast  of   the  later 
announcements  does  not  undermine   the  veracity  of  its 
November 24, 2000, representation to the Commission that the 
station's  underwriting  announcement  practices  have  been 
remedied. 

     5.  Regarding  the issue of penalty,  Late Night argues 
that the Commission should not impose a sanction for several 
reasons.  In this regard, it  asks that we take into account 
the fact  that the  station received no  direct remuneration 
for  broadcast   of  the  announcements  contained   in  the 
programming donated  by ``The Thomas Pope  Show'' and Dudley 
Broadcasting Network,  Inc. (``DBN'').  Further,  Late Night 
asks that  we consider  the fact that  it made  a good-faith 
effort to  comply with our  rules after our  earlier inquiry 
letter, but that during  ``the remedial process commenced in 
November  [2000],''  it did  not  fully  grasp the  thorough 
manner in  which such  announcements must be  scrutinized in 
order to  ensure rule compliance.   As a result of  a recent 
station policy  change, Late  Night claims that  the station 
has ``formally  established a  3-member screening  team'' to 
ensure that the content of future underwriting announcements 
is acceptable and compliant  with the Commission's pertinent 
rules and policies.  

     6.  We agree that a  monetary sanction is not necessary 
to redress the statutory and rule violations at issue.  This 
disposition is based  upon the fact that  Late Night appears 
to have taken further significant steps to ensure compliance 
with our  underwriting rules.   However, certain  aspects of 
Late Night's response warrant further examination.

     7.   Specifically, we  caution  Late  Night to  observe 
that, even in those  instances where noncommercial licensees 
do  not receive  direct  payment  from for-profit  sponsors, 
``consideration''  that   renders  the  broadcast   of  such 
underwriters'  promotional  announcements inappropriate  may 
nonetheless    be    present.      In    this    connection, 
``remuneration'' and  ``consideration'' have  been construed 
to include various forms.   See, e.g., Fuqua Communications, 
Inc.,  30  FCC  2d  94,  97  (1971);  Window  to  the  World 
Communications, Inc.,  12 FCC  Rcd 20239, 20241  (MMB 1997), 
affirmed in  part, modified  in part, 15  FCC Rcd  10025 (EB 
2000).  In the  instant case, Late Night  indicates that the 
live-feed  of  ``The  Tom  Pope Show,''  received from  DBN, 
contained  the   prohibited  announcements,  and   that  DBN 
supplied the  program to its  station free of  charge. Thus, 
the   program    itself   appears    to   have    been   the 
``consideration''  supporting the  prohibited announcements' 
broadcast.  Consequently,  in the future, Late  Night should 
observe that  underwriting announcements accepted  through a 
``live-feed'' from a network programmer also warrant similar 
textual scrutiny  to those  produced by the  station itself.  
Id.

     8.  Finally, contrary to  Late Night's explanation, the 
text of at least one  of the current announcements undercuts 
its earlier claim of good-faith rule compliance efforts.  In 
this regard, we note that  the station's own internal policy 
guide  entitled   ``Rules  and   Regulations  WHPR  88.1  FM 
Sponsored Programming,'' submitted to  the Commission in its 
November  24,   2000,  response,   contains  as   its  first 
underwriting  announcement instruction  the admonition  that 
``[t]here cannot be any mention of sale prices, percentages, 
discounts, or bargains when advertising sponsors.''  Despite 
the  station's  internal  policy, it  thereafter  repeatedly 
broadcast a State Farm Insurance announcement that conveyed, 
in  addition to  its  comparative  and qualitative  message, 
obviously prohibited price information.4   As Late Night was 
admittedly aware by virtue of its own submission, prohibited 
price   information  includes   not   only  specific   price 
information,  but also  sponsor  discounts  and products  or 
services offered by the sponsor at no cost or ``free.''  See  
Xavier,  supra.   We caution  Late  Night to  ensure in  the 
future not only that it  has appropriate written policies in 
place but  also that  station management and  other relevant 
employees  fully  understand   and  consistently  apply  the 
policies.  

                    IV.  Ordering Clauses

     9.   In  view of  the  foregoing,  we conclude  that  a 
sanction is appropriate.  Accordingly, IT IS ORDERED that R. 
J.'s  Late  Night  Entertainment  Corporation,  licensee  of 
noncommercial  educational station  WHPR-FM, Highland  Park, 
Michigan, IS  ADMONISHED for broadcasting  advertisements in 
violation of Section  399B of the Act, 47  U.S.C. 399B, and 
Section 73.503 of the Commission's rules, 47 C.F.R. 73.503.

     10.   IT  IS  FURTHER  ORDERED  that  a  copy  of  this 
Memorandum  Opinion and  Order shall  be sent,  by Certified 
Mail  -- Return  Receipt Requested,  to Rosalind  M. Parker, 
Esq.,  Counsel   for  R.   J.'s  Late   Night  Entertainment 
Corporation,  1140  Connecticut  Avenue, N.W.,  Suite  1142, 
Washington, D.C.  20036.


                         FEDERAL COMMUNICATIONS COMMISSION


                         David H. Solomon
                         Chief, Enforcement Bureau

Attachment








                         ATTACHMENT

     The  following  text  was  taken from  a  recording  of 
announcements  aired  by noncommercial  educational  station 
WHPR-FM during the month of December 2000.

1.  State Farm Insurance  (35 seconds)

Today  it seems  everybody  is offering  a  discount in  car 
insurance.   But  at  what price?   Reduced  protection  and 
personal service?  At State Farm, you can earn discounts and 
still get full service and dependable protection.  See State 
Farm Agent George  Warden in Southfield, for  the State Farm 
Multiple Lines Discount.  With State  Farm, you get an agent 
you can  depend on.   See Sate Farm  Agent George  Warden at 
24361 Greenfield or call 248-569-8555.


2.  Aknartoons Fine Foods Eatery  (60 seconds)

Aknartoons Fine Foods Eatery has the dinners you will always 
enjoy.  Aknartoons  is located  at 10300 Woodward  Avenue at 
Calvert.  Open seven days a week from 11:00 a.m. until 12:00 
Midnight.  Come in and try  our dinners, excellent sides and 
delicious  desserts.   To  order by  phone,  call  867-3102.  
That's 867-3102.   Aknartoons Fine Foods Eatery,  located at 
10300 Woodward Avenue at  Calvert.  Aknartoons has something 
special for you every Thursday  and Friday between the hours 
of  6:00 p.m.  and 8:00  p.m.  At  Aknartoons, there's  live 
entertainment with  a band.  Every Thursday  and Friday from 
6:00 p.m.  until 8:00 p.m.  Make  sure you stop by  to enjoy 
good  food,  good  music  and good  friends  at  Aknartoons.  
Aknartoons Fine Foods Eatery.


3.   Glory  Foods  (60 seconds; contained  in live-feed from 
``The Thomas Pope Show'')

[Lyrics sung to musical score]:

When you're in the mood  for some home-cooked food with that 
real  good,  feel-good, down-home  taste,  make  it easy  on 
yourself -Get  Glory Foods!  Glory  Foods -- Just  about the 
best!

Help yourself  to some soulful greens;  complement well with 
candy sweets.
Top off that spread with delicious cornbread.

And you're talkin' about real good eatin'. . . .

Female  Voice:   ``This  year  add to  the  ummm  ummm  ummm 
goodness of  your holiday  turkey or ham  or just  about any 
main dish with Glory Foods.   From seasoned greens to black-
eyed peas,  Glory Foods are  easy to prepare.  So  you spend 
more time with your family.   Of course, nothing can replace 
the tastes your  family's come home to for  years, but Glory 
Foods is just about the best!''  

[Lyrics sung to musical score]:

When you're in the mood  for some home-cooked food with that 
real  good,  feel-good, down-home  taste,  make  it easy  on 
yourself -Get  Glory Foods!  Glory  Foods -- Just  about the 
best!
 
Narrator:  Available at your local supermarket.


4.  Wittnauer  Watches  (60 seconds; contained  in live-feed 
from ``The Thomas Pope Show'')

[Announcement spoken over musical background.]

Male Voice:  ``I hear you're looking for a watch.''

Female Voice:  ``I want a Wittnauer.''

Male  Voice:   ``Of  course  you want  a  watch  with  great 
looks.''

Female Voice:  ``I want a Wittnauer.''

Male Voice:  ``May I show you another. . . .?''

Female Voice:  ``I want a Wittnauer.''

Male Voice:  ``Over  here we have an  entire showcase filled 
with. . . . .''

Female Voice:  ``I want a Wittnauer.''

Narrator:  ``Wittnauer  Watches.  Whether you want  to dress 
up or  dress down.  Wittnauer  Watch style is just  what you 
want.  Wittnauer Watches with Swiss Quartz accuracy.''

Male Voice:  ``Ma'am, is there any. . . .''

Female Voice:  ``I want a Wittnauer.''

Male Voice:  ``I know; I know. . . .''

Chorus: ``I want a Wittnauer.''

Narrator:  ``You want the right watch, you want a Wittnauer.  
Wittnauer Watches, products of Wittnauer International.''

Female Voice:  ``I want a Wittnauer!''

Narrator: `` Wittnauer Watches.  Fine jewelry, of course.''

Company  Spokesman:   ``Hi,  I'm Charles  D.  Watkins,  Vice 
Chairman of  The Wittnauer Watch Company.   Please call this 
toll-free  number  for   the  authorized  Wittnauer  Jeweler 
nearest you, at 1-888-367-9488 or 1-888-FORWITT.'' 
 

5.    Rosemond Chiropractic (75  seconds; contained in live-
feed from ``The Thomas Pope Show'')

Pain is you body's way  of saying something is wrong.  Early 
history speaks of the relief  of ``the laying on of hands.'' 
Today   this  technique   is  manifest   in  the   field  of 
chiropractic.   Dr. Luther  P.  Rosemond  is the  modern-day 
drugless  physician.  If  you are  experiencing pain  as the 
result of  a personal injury, auto  accident, or job-related 
injury,  let   Dr.  Rosemond   show  you   how  chiropractic 
techniques can restore and maintain your good health without 
the use of mind-dulling drugs.   Dr. Luther P. Rosemond will 
teach you how to use  your body's natural maintenance system 
to keep it functioning in peak condition.  And if you really 
want to give your stress a rest, contact Barbara Rosemond, a 
licensed  massage-therapist,  for relaxing  and  therapeutic 
massage.   Call  313-837-9355,   that's  313-837-WELL.   Dr. 
Rosemond is located at 17701 Schoolcraft. . . .






                         

_________________________

1 Our January 19, 2001, inquiry followed an earlier December 
4, 2000, letter cautioning Late Night to comply with the 
pertinent Commission rules and policies regarding 
noncommercial underwriting messages.

2 Late Night claims that The Cotillion Club Banquet Center 
is a not-for-profit entity and that it is therefore 
permissible for a noncommercial station to broadcast 
promotional underwriting announcements on its behalf.  We 
agree.
 
3 Late Night refers to our letter of inquiry dated November 
6, 2000.
4 The text of that announcement reads as follows:  ``Today 
it seems everybody is offering a discount in car insurance.  
But at what price?  Reduced protection and personal service?  
At State Farm, you can earn discounts and still get full 
service and dependable protection. . .  .''