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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
FAMILY VISION MINISTRIES, INC. ) File No. EB-01-IH-0629
) Facility #79130
Licensee of Noncommercial )
Educational Station KAYH(FM) )
Fayetteville, Arkansas )
MEMORANDUM OPINION AND ORDER
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.
FEDERAL COMMUNICATIONS COMMISSION
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
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.