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

In the Matter of                  )
                                 )   Facility #79130
Licensee of Noncommercial         )
Educational Station KAYH(FM)      )
Fayetteville, Arkansas            )


     Adopted:   January 29, 2003                  Released:   
January 31, 2003

By the Commission:

     1.   In this  Memorandum Opinion and Order,  we deny an 
application for  review filed June  12, 2002, by  KERM, Inc. 
(``KERM'').1  KERM seeks review of  the May 15, 2002, letter 
ruling of  the Chief, Investigations and  Hearings Division, 
Enforcement   Bureau,  which   found   that  Family   Vision 
Ministries,   Inc.    (``Family   Vision'')    licensee   of 
noncommercial  station   KAYH(FM),  Fayetteville,  Arkansas, 
broadcast  a single  advertisement in  violation of  Section 
399B of the Communications Act  (``Act''), 47 U.S.C.  399B, 
and Section 73.503(d) of the Commission's rules, 47 C.F.R.  
73.503(d), but refrained from  imposing any sanction.  KERM, 
which provided transcript and recorded evidence and argument 
challenging  numerous  KAYH(FM) underwriting  announcements, 
now  argues  that  the  staff's  ruling  ignored  additional 
instances  of the  licensee's underwriting  rule violations, 
and that  the ruling thus  failed to impose  the appropriate 
sanction  in  redress.   Family   Vision  filed  a  pleading 
opposing  the  application for  review,2  and  KERM a  reply 

     2.   We reject  KERM's arguments.  The staff's  May 15, 
2002,   letter  ruling   properly  concluded   that  station 
KAYH(FM)'s broadcast  of the Arvest Farmer's  and Merchant's 
Bank  underwriting  announcement represented  ``an  isolated 
occurrence''  of licensee  noncompliance with  the pertinent 
statute  and  Commission  rules,   and  that  the  station's 
broadcast of this announcement did not warrant any sanction.  
As  noted   in  the   staff's  ruling,  the   11  additional 
announcements complained about by KERM are permissible under 
Xavier University, 5 FCC Rcd  4920 (1990); Public Notice, In 
the Matter of Commission Policy Concerning the Noncommercial 
Nature  of  Educational  Broadcasting  Stations  (April  11. 
1986),  republished,  7  FCC   Rcd  827  (1992)  (``Enhanced 
Underwriting and Donor  Acknowledgment Statement''),3 and in 
keeping   with    Commission   policy    that   underwriting 
announcements  may identify,  but  not  promote, their  for-
profit   sponsors.4    In   this  regard,   the   additional 
announcements briefly describe  their underwriter's products 
or  services  in  value-neutral  terms,  and  list  business 
addresses  and   telephone  numbers,  consistent   with  the 
identification-only  purpose of  underwriting announcements.  
See Public Notice.  Significantly,  the announcements do not 
provide  prohibited  price  information, attempt  to  induce 
business  patronage, call  listeners to  action, or  seek to 
distinguish  or  compare their  products  or  services in  a 
favorable   manner   to    those   of   their   competitors.  
Accordingly, we conclude that their broadcast was within the 
licensee's reasonable  good faith discretion  under Xavier.5  
Thus, their broadcast was permissible.6

     3.   Furthermore, in  view of the  single non-compliant 
announcement at issue in this case, KERM does not adequately 
explain why  the imposition  of a  formal sanction  would be 
required to  ensure KAYH(FM)'s prospective  rule compliance.  
In  this regard,  while complaining  parties may  question a 
licensee's  conduct and  so invite  Commission scrutiny  and 
investigative   efforts,  the   agency   itself  has   broad 
discretion  in determining  whether to  impose sanctions  in 
given cases.  See  Lorain Journal Co. v. FCC,  351 F.2d 824, 
830-31 (D.C. Cir. 1965), cert. denied sub nom. WWIZ, Inc. v. 
FCC, 383 U.S. 967 (1966), citing FCC v. WOKO, Inc., 329 U.S. 
223 (1946); see  also In re Black Media Works,  Inc., 16 FCC 
Rcd  3374 (EB  2001).  In this  connection, after  reviewing 
KERM's application for review, the responsive pleadings, and 
the underlying  record, we  find no  reason to  overturn the 
Bureau's prior  decision and conclude that  the decision not 
to impose a sanction was correct.7 
     4.   Accordingly,  IT IS  ORDERED, pursuant  to Section 
1.115 of the Commission's rules, 47 C.F.R.  1.115, that the 
application for review filed June 12, 2002, by KERM, Inc. IS 
DENIED; that the staff's May 15, 2002, decision IS AFFIRMED; 
and  that  Family  Vision's opposition  to  application  for 
review IS GRANTED to the extent indicated herein.

     5.   IT  IS  FURTHER  ORDERED,   that  copies  of  this 
Memorandum  Opinion and  Order  shall be  sent by  Certified 
Mail, Return  Receipt Requested, to  KERM, Inc., c/o  Dan J. 
Alpert, Esq., 2120 N. 21st Road, Arlington, Virginia, 22201, 
and  to  Family  Vision  Ministries, Inc.,  c/o  Vincent  J. 
Curtis, Esq.,  Fletcher, Heald & Hildreth,  PLC, 11th Floor, 
1300 North 17th Street, Arlington, Virginia, 22209.


                         Marlene H. Dortch


1 KERM is licensee of Stations KURM(AM), Rogers, Arkansas; 
KARV(AM), Russellville, Arkansas; KARV-FM, Ola, Arkansas; 
and KLTK(AM) and KURM-FM, Southwest City, Missouri.

2 On June 25, 2002, Family Vision requested an extension of 
time until July 12, 2002, to file its opposition pleading, 
arguing that newly hired counsel needed additional time to 
prepare its filing.  The Commission's policy is not to grant 
extensions of time routinely.  See 47 C.F.R.  1.46(a).  In 
this case, however, we find that the public interest is 
served by permitting the late-filing so that we may have a 
better understanding of the record.
3 In Xavier, the Commission acknowledged that it can at 
times be difficult to distinguish between language that 
identifies versus that which promotes, and that it expects 
only that licensees exercise ``reasonable good faith 
judgment'' in this area.  

4 The additional announcements cited by KERM were for the 
Armadillo Grill; the Color Shop; Spring Street Grill and 
Catering; the Maxillo Facial Surgery Center; Northwest 
Tires; Pizza in Springdale; First National Bank of 
Springdale; Posa's House of Pasta; Williams' Tractor; and 
Signature Cleaners.

5 First, we find that the Armadillo Grill announcement's 
mention of ``daily lunch specials'' is acceptable because it 
appears to refer to the variety of the restaurant's luncheon 
offerings and, thus, does not convey prohibited price 
information.  Similarly, we find that the description of the 
Color Shop's offering of ``professional equipment and 
supplies'' is permissible because it refers to the general 
type of merchandise offered and is not specifically 
promotional of the underwriter.  The Spring Street Grill and 
Catering announcement's mention that it offers ``home style 
food'' and ``bakes [its] pies daily'' appears to identify 
its products in a general, categorical manner, as does the 
Williams Tractor announcement's mention that its Magnum 325 
ATV possesses ``an intelligent four-wheel drive system.''  
See Xavier; cf. Board of Education of New York (WNYE-TV)), 7 
FCC Rcd 6864 (MMB 1992).  Similarly, we find that the 
Northwest Tires announcement identifies its Toyo radial tire 
as being ``designed for pickups, vans and sport utility 
vehicles'' in a value-neutral manner without specifically 
comparing it to other makes.  Cf. Kosciusko Educational 
Broadcasting Foundation (WJTA(FM)), 5 FCC Rcd 7106 (MMB 
1990).  In that vein, we find that the Posa's House of Pasta 
announcement acceptably identifies the restaurant as 
offering ``dining in or carry-out dinners with catering and 
gift baskets'' in a value-neutral manner that refrains from 
urging patronage.  Cf. id.  Finally, we note the Maxillo 
Facial Surgery Center announcement observes generally that 
surgery ``never has to be unpleasant'' and does not appear 
to distinguish the underwriter's medical skills from those 
of other oral surgeons.  Cf. id.  Thus, we find that it is 
6 KERM ignores that the precedent and policy pronouncements 
on which it relies were modified by both the later Enhanced 
Underwriting and Donor Acknowledgment Statement and Xavier 
case to afford licensees greater discretion in formulating 
compliant underwriting announcements.

7 We note that, in its responsive pleading, Family Vision 
does not challenge our finding respecting the Arvest 
Farmer's and Merchant's Bank underwriting announcement.