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

In the Matter of                  )
                                 )
ISOTHERMAL COMMUNITY              )   EB-00-IH-0414
COLLEGE                           )   EB-00-IH-0504
                                 )   Facility #29262
Licensee of Noncommercial         )
Educational Station WNCW(FM),     )
Spindale, North Carolina

                MEMORANDUM OPINION AND ORDER

Adopted:  December 5, 2001                                  
Released:  December 6, 2001

By the Chief, Enforcement Bureau:

                       I. Introduction

     1.   In  this Order,  we admonish  Isothermal Community 
College   (``Isothermal''),    licensee   of   noncommercial 
educational station WNCW(FM),  Spindale, North Carolina, 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, and for  failing to properly maintain its 
public  file   in  violation  of  Section   73.3527  of  the 
Commission's rules, 47 C.F.R. 73.3527. 

     2.   We have  carefully reviewed the  record, including 
the complaints and Isothermal's responses, and conclude that 
the  licensee  has  violated  the  pertinent  statutory  and 
Commission  underwriting rule  provisions,  as  well as  the 
public  file  rule.   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 Isothermal of  our concerns so that rule 
compliance may be fully achieved.

                       II.  Background

     3.   In response to an initial complaint filed December 
12,  2000, by  station listener  Bill Bost,  we investigated 
Isothermal's broadcast of announcements regarding ``The WNCW 
Mountain Oasis Music Festival,'' a local concert event which 
was conducted by a for-profit enterprise, A.C. Entertainment 
of Knoxville (``ACE''), as  well as questions concerning the 
station's  maintenance  of  its  public  file.1   Isothermal 
responded  to our  January  26, 2001,  and  March 30,  2001, 
inquiries by  submissions dated February 15,  2001 and April 
19,  2001.   After having  received  a  further public  file 
complaint  submitted  August  15,  2001,  by  Ted  Bost,  we 
inquired by letter  of August 20, 2001,  to which Isothermal 
responded by letter dated September 6, 2001.

                      III.  Discussion

     4.   Underwriting  Announcements.   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);   47   C.F.R.   73.503.    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.   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).

     5.   As  noted above,  under Section  399B of  the Act, 
noncommercial  broadcasters  are generally  prohibited  from 
broadcasting messages that promote the products, services or 
businesses of  for?profit entities, if made  in exchange for 
remuneration.   However, where  "economic consideration"  is 
not the basis for the broadcast of particular announcements, 
noncommercial  stations  may  broadcast  messages  promoting 
local "transitory events," such  as movies, plays, concerts, 
etc.,  including  ticket  prices and  information,  so  that 
listeners may be  informed as to local  happenings.  In this 
case,  complainant   Bill  Bost  claims  that   the  station 
broadcast announcements  in October, 2000, promoting  a for-
profit  concert  event,  ``The  WNCW  Mountain  Oasis  Music 
Festival,''  transcripts of  which are  attached.  Mr.  Bost 
contends that the  music festival was not  the station's own 
event, but was  jointly sponsored with ACE,  and thus served 
to impermissibly benefit a for-profit entity.

     6.   Isothermal  does not  deny that  it broadcast  the 
announcements in  question, but argues that  their broadcast 
did not  violate Section 399B  of the Act.  In  this regard, 
the licensee  contends that the announcements  were aired to 
publicize  ``The   WNCW  Mountain  Oasis   Music  Festival'' 
consistent with its discretion under Commission precedent to 
promote  local   ``transitory  events''  in   the  station's 
community.   Isothermal  represents  that ACE  produced  the 
festival  and realized  all of  its financial  proceeds, and 
that  the  station  lent  its  name,  or  ``sponsored''  the 
festival,  and  received  event  tickets  and  publicity  in 
exchange for that and for airing promotional announcements.2   
Isothermal  argues that  the announcements  were permissible 
because  the event  tickets it  received did  not constitute 
cognizable remuneration  and because it did  not receive any 
of  the   proceeds  resulting   from  the   music  festival.   
Isothermal describes ACE as a ``long-time supporter'' of the 
station, and emphasizes that  ACE's ``role as an underwriter 
was  entirely  separate  and  apart   from  its  role  as  a 
producer'' of  the music  festival.  Isothermal  claims that 
the purpose for its ``sponsorship  and promotion of the WNCW 
Festival was the ability to  promote the value of membership 
in  Station  WNCW  and  to  encourage  listeners  to  become 
members,''  and is  consistent with  the type  of ``creative 
fundraising''  encouraged  by   the  Commission  in  Chicago 
Educational Television  Association (WTTW(TV))  (MMB October 
23, 1995).

     7.   We   reject  Isothermal's   contention  that   the 
broadcast of  the instant announcements was  consistent with 
the  Commission's ``transitory  event''  exception.  In  the 
Memorandum Opinion and Order,  ``In the Matter of Commission 
Policy  Concerning the  Noncommercial Nature  of Educational 
Broadcast  Stations,''  90  FCC  2d  895,  911  (1982),  the 
Commission  specifically warned  licensees  that ``a  public 
broadcaster's  decision to  promote  third  parties must  be 
based on public-spirited determinations rather than economic 
considerations.''  In this case, the licensee admits that it 
received   ``event  tickets''   in  specific   exchange  for 
broadcasting announcements  promoting a music  festival that 
directly benefited  ACE, a for-profit entity,  and that they 
were not given as general underwriting support.3  

     8.   Isothermal seems  also to  imply that  the tickets 
were not  ``consideration received'' by the  station because 
they  were thereafter  used  as donor  premiums or  listener 
giveaway prizes and not  retained.  However, it ignores that 
``remuneration'' and  ``consideration'' have  been construed 
to include various forms.   See, e.g., Fuqua Communications, 
Inc., 30  FCC 2d 94,  97 (1971) (consideration may  be found 
where ``trade-out'' or barter  are exchanged); 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) (consideration may  be found where the programming 
itself is provided freely or at reduced cost).  Thus, to the 
extent   that  Isothermal   argues  that   it  received   no 
remuneration   for    broadcasting   the    music   festival 
announcements,  its acceptance  of event  tickets that  were 
later  used  as  promotional giveaways  and  donor  premiums 
belies that claim. 

     9.   Moreover,  even  if  Isothermal had  not  received 
tangible consideration in the form of event tickets from ACE 
in exchange for making  the broadcast announcements in which 
that business  was promoted,  we could  not ignore  that the 
announcements themselves  appeared to support  the station's 
self-interest  by identifying  the event  as the  ``The WNCW 
Mountain Oasis Music Festival.''   Thus, the station clearly 
anticipated  increased  membership,  and  enhanced  economic 
benefit, as a result of its broadcast promotion of the music 
festival  directly  benefiting  a  for-profit  entity,  ACE.  
Consistent with the Memorandum  Opinion and Order, supra, we 
do not  believe that the ``transitory  event'' exception was 
intended to apply to announcements of this type, made out of 
a station's self-interest  rather than its ``public-spirited 
determination.''    See   also    Letter   of   the   Chief, 
Investigations  and  Hearings   Division  to  University  of 
Massachusetts (WFCR(FM)) (February 29, 2000).

     10.  Finally,  we strongly  disagree with  Isothermal's 
reliance  on  Chicago   Educational  Television  Association 
(WTTW(TV)), supra,  to justify the  promotional underwriting 
announcements  in this  case.   In Chicago,  the Mass  Media 
Bureau criticized, but declined to  punish, the conduct of a 
joint-fundraising   arrangement   where  the   noncommercial 
station split its fundraising  proceeds with other area not-
for-profit institutions.   As noted above, in  this case the 
licensee's promotion of the music festival at issue directly 
benefited ACE, a  for-profit entity, and the  harm caused to 
the   noncommercial   service   was   far   more   tangible.  
Consequently, we find that  Isothermal violated Section 399B 
of the Act through airing the announcements in question. 
      
     11.  Public  Inspection  File.   In his  December  12th 
complaint,  Bill  Bost  further alleged  that  the  licensee 
withheld certain  documents he requested that  relate to the 
station's   promotion  of    ``The   Mountain  Oasis   Music 
Festival,'' discussed above, and that it suddenly raised the 
documents' copying  cost without justification, in  order to 
discourage his investigation.  Bill Bost claims that, during 
his October 3, 2000, visit, the station's public file lacked 
specific documents that are required to be contained therein 
pursuant to  Subsections 73.3527 (e)(4), (5),  (6), (9), and 
(10).  In his  August 15th complaint, Ted  Bost alleged that 
on August  10, 2001, WNCW(FM) staffers  unreasonably delayed 
his access to  the station's public file.4   In sum, Messrs. 
Bost charge that Isothermal  violated Section 73.3527 of the 
Commission's rules, and should be sanctioned accordingly.

     12.  In  its February  15th and  April 19th  responses, 
Isothermal admits  only that it failed  to include materials 
in its public file relating to its quarterly issues/programs 
and donors  lists, as required by  Subsections 73.3527(e)(8) 
and (9)  of the  Commission's rules, but  avers that  it has 
since taken remedial action.   The licensee denies, however, 
Bill Bost's  allegation that it overcharged  him for copying 
services   or  that   it   discouraged  his   investigation.  
Isothermal explains that the extensive nature of Bill Bost's 
document production  request, which  appears to  have sought 
material  beyond  the scope  of  the  station's public  file 
rule,5  required it  to  hire additional  clerical help  and 
raise  its  per  page  copying  fee from  10  to  25  cents.  
Moreover,  in its  response  to our  subsequent August  30th 
inquiry, Isothermal denies that it improperly delayed access 
to Ted Bost when he requested  to inspect the public file on 
August 10, 2001. The licensee  claims that due to Mr. Bost's 
earlier threats of litigation and apparent antagonism toward 
the staff, the station's managers feared that a safety issue 
might arise  during his  visit.  Isothermal  represents that 
the station's  staff thus delayed  Mr. Bost's access  to the 
public  file  approximately  ten  minutes  while  it  sought 
assistance from the university's  legal counsel and security 
department to  monitor the  visit.  Isothermal  argues that, 
given the full circumstances of Mr. Bost's visit, such delay 
was not unreasonable  and was consistent with  the intent of 
Section 73.3527 of the Commission's rules.

     13.  Section  73.3527(a)  of   the  Commission's  rules 
requires  noncommercial broadcast  licensees  to maintain  a 
public file containing specific types of information related 
to station operations.6  The  purpose of this requirement is 
to  provide the  public with  timely information  at regular 
intervals throughout  the license period, so  that concerned 
individuals  or   groups  may  participate   effectively  in 
Commission  proceedings  concerning  a  broadcast  licensee, 
including  the evaluation  of its  performance.  See,  e.g., 
Liability  of  KLDT-TV 55,  Inc.,  8  FCC Rcd  6316   (1993) 
forfeiture reduced, 10  FCC Rcd 3198 (1995).   The file must 
be available to the public at any time during the licensee's 
regular business  hours.  Id.; Public  Notice, "Availability 
of Locally  Maintained Records for Inspection  by Members of 
the Public," 13 FCC Rcd  17959 (1998), citing WBRN, Inc., 32 
FCC 2d  729 (1971); Morton L.  Berfield, Esq., 71 RR  2d 142 
(FOB  1992)  (the file  must  be  immediately available  for 
inspection   by  members   of   the   public,  not   through 
appointments or  at times most convenient  to the licensee).  
Moreover,  Section  73.3527(c)  of  the  Commission's  rules 
requires that  requests for copies of  documents required to 
be kept  in the  station's public file  be fulfilled  by the 
licensee at a reasonable cost and within a reasonable period 
of time, i.e., not more than seven days.

     14.  Isothermal admits  that its station's  public file 
was deficient at  the time of our January  26th inquiry with 
respect to  its quarterly issues/programs and  donors lists, 
contrary  to the  requirements of  Subsections 73.3527(e)(8) 
and (9) of the Commission's  rules.  The licensee avers that 
it  has   since  taken  remedial  action,   and  denies  the 
complainants' allegations that the public file was deficient 
in other respects.  In its response to our query, Isothermal 
provides information indicating  that the materials required 
by the  rule's other subsections  are, in fact,  included in 
its  public  file  and  are   current.   We  note  that  the 
complainants  have not  provided any  probative evidence  to 
rebut  the  licensee's   account  concerning  that  showing. 
Moreover, we accept Isothermal's  explanation that it raised 
its copying fees  reasonably in order to  recoup its overall 
copying  costs,  including  clerical expense,  in  a  manner 
consistent with the Commission's public file rule.  

     15.  Finally, while it  is a matter of  concern when we 
receive  a   complaint  that  a  licensee   has  delayed  in 
responding to a  request to view its  station's public file, 
we  recognize that  noncommercial  licensees  that are  also 
educational    institutions    have   legitimate    security 
considerations which may require  them to take precautionary 
steps  that delay  their  visitors access  to the  stations' 
files.   See  Letter  from  the  Chief,  Investigations  and 
Hearings   Division,  to   Carmel/Clay  School   Corporation 
(WHJE(FM)) (March 15, 2001).  In this case, Ted Bost's delay 
was fairly insubstantial,  less than half and  hour, and was 
apparently  caused  by   the  licensee's  apprehension  that 
security precautions  were necessary.  We have  no reason to 
question  the licensee's  judgment  regarding that  concern.  
Consequently,  we  find  that  Isothermal  violated  Section 
73.3527(e) (8)  and (9) of  the Commission's rules  only and 
find  no  merit  to the  complainants'  further  allegations 
concerning this issue. 

     16.  In view of the  foregoing, we find that Isothermal 
violated Section  399B of the  Act, and Sections  73.503 and 
73.3527   of  the   Commission's  rules,   respectively,  by 
broadcasting announcements promoting a for-profit entity and 
for failing to maintain the station's public file.  In light 
of  the station's  otherwise  unblemished prior  enforcement 
record, however,  we find  that a  monetary sanction  is not 
warranted  to  redress this  rule  violation.   See Note  to 
Section 1.80 (b)(4) of the Commission's rules.7  Instead, we 
believe  that  an  admonishment  is  appropriate  under  the 
circumstances of this case.    




                    IV.  Ordering Clauses

     17.  In  view  of the  foregoing,  we  conclude that  a 
sanction is  appropriate.  Accordingly,  IT IS  ORDERED that 
Isothermal  Community  College,  licensee  of  noncommercial 
educational station  WNCW(FM), Spindale, North  Carolina, IS 
ADMONISHED for  broadcasting advertisements in  violation of 
Section  399B of  the  Act, 47  U.S.C.  399B, and  Sections 
73.503 and  for failing  to maintain properly  its station's 
public  file in  violation  of 73.3527  of the  Commission's 
rules, 47 C.F.R. 73.503 and 73.3527.

     18.  IT  IS  FURTHER  ORDERED   that  a  copy  of  this 
Memorandum  Opinion and  Order shall  be sent,  by Certified 
Mail -- Return Receipt Requested,  to Robert Woods, Esq. and 
Steven  C.  Schaffer, Esq.,  of  Schwartz,  Woods &  Miller, 
Counsel for  Isothermal Community College,  1350 Connecticut 
Avenue, N.W., Suite 300, Washington, D.C.  20036-1717.


                         FEDERAL COMMUNICATIONS COMMISSION


                         David H. Solomon
                         Chief, Enforcement Bureau

Attachment































Promo # I 
Between the traffic, the shopping malls and the bad music 
videos does it ever feel like we're all just: 

[MUSIC - Living in the wasteland of the free] 

Maybe we all just need: 

[MUSIC - more love] 

And better music. WNCW's Mountain Oasis Music Festival is-an 
escape from the ordinary with performances from Bela Fleck, 
Iris DeMent, Tim O'Brien and Darrell Scott, Leftover Salmon, 
Corey Harris, Robert Earl Keen, Southern Culture on the 
Skids, Peter Rowan and Tony Rice, John Cowan and many more 
including a second lakeside stage. The Weekend of October 
6th, 7th, and 8th, it's the WNCW Mountain Oasis Music 
Festival at Deerfields near Hendersonville, North Carolina. 
Camping is also available and tickets are on sale now at 
877-995-9961 and at concertwire.com. WNCW celebrating live 
music with the people who love it. 

[MUSIC - Way up on the hill where they do the boogie, do the 
boogie, do the boogie, oh I wonder what they do when they do 
the boogie ... do do do do do do ] 

PROMO- Friday 

WNCW's Mountain Oasis Music Festival will feature three days 
of the music you heir and love on your favorite public radio 
station. The Festival will take place Friday, Saturday, and 
Sunday, October 6th, 7th , and 8th at Deerfields near 
Hendersonville, North Carolina. Friday's lineup begins at 7 
pm with the Donna the Buffalo, followed by David Gans, host 
of the Grateful Dead Hour, and finishes up with the Dark 
Star Orchestra. Wireless support and accessibility provided 
by Verizon Wireless. Visit our website at WNCW.org for more 
information or visit concertwire.com for tickets to WNCW's 
Mountain Oasis Music Festival. 

PROMO - Saturday 

WNCW's Mountain Oasis Music Festival will feature three days 
of the music you hear and love on your favorite public radio 
station. The festival will take place Friday, Saturday and 
Sunday, October 6't, 7th and 8th at Deerfields near 
Hendersonville, North Carolina. Saturday's line-up begins 
with Tim O'Brien and Darrell Scott, Iris DeMent, Corey 
Harris and Dan Hicks and the Hot Licks. The music continues 
into the evening with Southern Culture on the Skids, Robert 
Earl Keen, Leftover Salmon and Bela Fleck and the 
Flecktones. Visit our website at WNCW.org for more 
information or visit concertwire.com for tickets to WNCW's 
Mountain Oasis Music Festival. 








_________________________

1 On September 18, 2001, Bill Bost further alleged that the 
licensee wrongfully denied his station listener membership 
renewal in reprisal for his complaint to the FCC.  Their 
dispute on this point appears to be a private matter.  As 
such, Mr. Bost's later complaint does not raise issues 
within the scope of the licensee's public interest 
obligations, and we will not address it.

2 See Isothermal's April 19, 2001 and February 15, 2001, 
responses to the staff's letters of inquiry dated March 30, 
2001 and January 26, 2001, respectively.

3 In its February 15, 2001, response, Isothermal indicates 
that in exchange for its agreement to air the announcements 
promoting the event: 

      ``[t]he station received a donation of event tickets 
     for its fall fund drive (as it had for previous fund-
     raising events).  These tickets were used as station 
     premiums for fund-raising and as give-away items for 
     self-promotion purposes . . .  .  Announcements for the 
     event were included in WNCW's community concert 
     calendar, a determination made solely by the station.''  

4 In his September 26th reply, Ted Bost indicated that he 
was ``delayed 24 minutes'' in his attempt to view the public 
file on August 10th.  Although his complaint suggests he was 
delayed or denied access to the station's public file on 
July 2nd, in his reply he also acknowledged that he did not 
actually request to view the file at that earlier time.  Mr. 
Bost indicates that he instead used that visit to seek 
financial records pertaining to his state FOIA request. 

5 According to the licensee, pursuant to a North Carolina 
state Freedom of Information Act (``FOIA'') request, Ted 
Bost also sought non-FCC regulated information relating to 
the station's operations, including current and prior year 
invoices and employee expense reports.

6 Among the items that are required to be contained in 
the public file are:  copies of all current FCC 
authorizations and modifications thereto (47 C.F.R.  
73.3527(e)(1)); copies of the station's FCC applications (47 
C.F.R.  73.3527(e)(2)); the station's contour maps (47 
C.F.R.  73.3527(e)(3)); the station's annual ownership 
reports and related materials (47 C.F.R.  73.3527(e)(4)); 
such records as are required to be kept concerning 
broadcasts by candidates for public office (47 C.F.R.  
73.3527(e)(5)); a copy of the manual entitled ``The Public 
and Broadcasting'' (47 C.F.R.  73.3527(e)(7)); a quarterly 
list of programs that have provided the station's most 
significant treatment of community issues (47 C.F.R.  
73.3527(e)(8)); a list of donors supporting specific 
programs (47 C.F.R.  73.3527(e)(9)); a statement certifying 
that required local public notice announcements were made at 
the time of  both the pre-filing and post-filing of the 
license renewal application, and the text of such 
announcements (47 C.F.R.  73.3527(e)(10)); material having 
a substantial bearing on a matter which is the subject of an 
FCC investigation or complaint to the FCC about which the 
licensee has been advised (47 C.F.R.  73.3527(e)(11)); and, 
where applicable, ``must-carry'' requests (47 C.F.R.  
73.3527(e)(12)).   

7

  47 C.F.R. 1.80(b)(4).