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

In the Matter of                  )
INC.                              )   File Nos. EB-00-IH-0153
                                 )   and  EB-01-IH-0652
Licensee of Noncommercial         )   NAL/Acct. No. 200232080020
Educational                       )   Facility ID No. 43095
Television Station KMTP-TV,       )   FRN No. 0005704366
San Francisco, California

                       ORDER ON REVIEW

Adopted: December 21, 2004                          
Released: December 23, 2004

By the Commission:

In this Order on Review, we deny an Application for Review 
filed by Minority Television Project, Inc. (``Minority''), 
pursuant to section 1.115 of the Commission's rules.1  
Minority seeks review of a Forfeiture Order2 in which the 
Enforcement Bureau (the ``Bureau'') imposed against Minority 
a forfeiture of $10,000 for its willful and repeated 
broadcast of advertisements over noncommercial educational 
Station KMTP-TV, San Francisco, California, in violation of 
section 399B of the Communications Act of 1934, as amended 
(the ``Act''),3 and section 73.621(e) of the Commission's 
rules.4  In so acting, the Bureau also dismissed, as moot, 
Minority's related June 13, 2000, Request for Declaratory 

In its Application for Review, Minority reiterates past 
arguments raised at the Bureau level.  We find that these 
arguments were fully and correctly addressed in the Bureau's 
Order except to the extent that we take the opportunity to 
elaborate here on certain issues.  Minority reiterates its 
past argument that the Commission cannot sanction it for the 
underwriting announcements at issue due to constitutional 
and statutory provisions protecting the rights of foreign-
language speakers and viewers.  It also again contends that 
section 399B of the Act, as well as the Commission's rules 
and policies promulgated thereunder, constitute 
unconstitutional restrictions on commercial speech.5  We 
reject these arguments.  The current statutory scheme, rules 
and policies governing noncommercial educational 
broadcasters have been in place for more than twenty years.6  
The Bureau fully considered language-specific issues in 
reaching its findings in this proceeding.7  Furthermore, we 
reject Minority's argument that the noncommercial 
underwriting statute, rules and policy imposes an English-
only standard or discriminates against non-English speakers 
or specific ideas in violation of the First Amendment or the 
equal protection guarantee of the Due Process Clause of the 
Fifth Amendment.  To the contrary, neither section 399B of 
the Act nor section 73.621(c) of the Commission's rules 
prohibit the use of a foreign language or discriminate 
against foreign language programming under the regulatory 
scheme.8  Accordingly, we see no constitutional infirmity in 
the regulatory scheme.  Minority also again asks the 
Commission to revisit its underwriting announcement 
standards and to adopt ones that are ``capable of meaningful 
prospective use.''  We agree with the Bureau's rejection of 
this request, for the reasons explained in the Bureau's 
Forfeiture Order.9  The standards are already clear.

We also reject Minority's claim here that the Bureau relied 
on an inadequate translation of the broadcast material in 
question.  Our review of the record confirms that the Bureau 
considered carefully the underwriting announcements at 
issue, but, consistent with applicable Commission precedent, 
rejected certain linguistic connotations Minority had urged 
that the Commission accept.  We note, however, that, in 
evaluating the announcements, the Bureau also specifically 
deferred to the translations provided by Minority itself, 
except in those instances in which the licensee had failed 
to provide any.10  Finally, although Minority claims that 
its underwriting announcements were drafted in accordance 
with standards enunciated and observed by Public 
Broadcasting Service stations, that claim, even if true, 
offers no defense or basis for mitigation.  The practices 
followed, or opinions rendered, by other broadcasters or 
trade organizations are not binding on the Commission.11  
Rather, licensees should rely only on the official 
Commission sources and precedents themselves.12  

Minority argues that the Bureau failed to accord proper 
weight to two additional mitigating factors.  First, 
Minority argues that only the aggregate number of 
announcements in question, 18, and not the number of times 
that they were aired, 1,911, should be determinative in 
setting the forfeiture amount.13  Second, it argues that the 
continuing nature of the violation over the period 2000 
through 2002 should be mitigated by the fact that the Bureau 
had not advised Minority of its obligations by ruling on its 
declaratory ruling request, which sought approval to air the 
announcements in question.  Minority cites no authority or 
precedent for either of its contentions.  We find that the 
Bureau properly rejected the first argument for the reasons 
stated in the Forfeiture Order, which are consistent with 
precedent.14  Both the number of announcements and the 
number of times they aired are relevant to the amount of the 
forfeiture, and these factors were properly considered by 
the Bureau.15  In any event, we agree with the Forfeiture 
Order's alternative holding that a $10,000 forfeiture would 
hardly be excessive even if the number of cited 
announcements were fewer or if they had been run 
substantially fewer times.16  As to the second argument, we 
note that Commission precedent affords mitigation in 
circumstances where licensees rely to their detriment on 
official advice that later proves to have been erroneous or 
incomplete.17  However, having not received any specific 
Commission advice concerning the instant announcements in 
this case, it was incumbent on Minority, as it is upon all 
similarly situated noncommercial licensees, to consult 
pertinent Commission precedent and to make its own good-
faith determinations as to the announcements' acceptability.  
Ambiguity is not created simply by the filing of a request 
for further guidance regarding a clear rule.  For the 
reasons set forth above, we conclude that Minority ignored 
settled precedent and failed to properly exercise its good-
faith discretion in broadcasting the underwriting 
announcements in question.18  Therefore, the fact that 
Minority had earlier requested, but had failed to receive, a 
declaratory ruling on the acceptability of the underwriting 
announcements, is not a mitigating factor under the 
circumstances of this case.       

 Upon review of the Application for Review and the entire 
record herein, we conclude that Minority has failed to 
demonstrate that the Bureau erred.  The Bureau properly 
decided the matters raised below, and we uphold its decision 
for the reasons stated in its Forfeiture Order. 19 

Accordingly, IT IS ORDERED, pursuant to section 1.115(g) of 
the Commission's rules, 47 C.F.R.  1.115(g), that the 
Application for Review filed by Minority Television Project, 

                              FEDERAL         COMMUNICATIONS 

                              Marlene H. Dortch 

1  47 C.F.R.  1.115.

2   See   Minority  Television  Project,   Inc.  (KMTP-TV), 
Forfeiture  Order,  18  FCC  Rcd  26611  (Enf.  Bur.  2003) 
(``Forfeiture Order'').

3  47 U.S.C.  399b.

4  47 C.F.R.  73.621(e).
5 In  support, Minority  cites several cases  regarding the 
limits placed  on government,  in varied contexts,  when it 
attempts to abridge free speech.   See U.S. v. O'Brien, 391 
U.S. 367 (1968); Yniguez v.  Arizona, 69 F.3d 920, 941 (9th 
Cir.  1995)  (en  banc)  (reversed and  remanded  on  other 
grounds); Arizonians  for Official English v.  Arizona, 517 
U.S.  1102 (1996),  on remand  at  118 F.3d  667 (9th  Cir. 
1997), remanded  with instructions  to dismiss at  119 F.3d 
795 (9th Cir.  1997); and Virginia State  Board of Pharmacy 
v. Virginia Consumer Council, 425 U.S. 748 (1976).       

6 See 47 U.S.C.  399b, which was added by Public Law 97-3, 
95 Stat.  357, 731, Aug.  13, 1981;  47 FR 36179,  Aug. 19, 
1982; and Commission's  Policy Concerning the Noncommercial 
Educational  Nature of  Educational Broadcasting  Stations, 
Memorandum  Opinion  and  Order,   90  FCC  2d  895  (1982) 
(``Policy Statement''),  recon. granted in part,  97 FCC 2d 
255 (1984).

7 See  Forfeiture Order, 18 FCC  Rcd 26611, 26614 at   10, 
citing Licensee Responsibility to Exercise Adequate Control 
Over  Foreign  Language  Programs, Memorandum  Opinion  and 
Order, 39 FCC 2d 1037 (1973).

8 Minority cites several  cases regarding the limits placed 
on  government  in  varied  contexts when  it  attempts  to 
abridge free speech.  See n. 5, supra.  We find these cases 
inapplicable to the facts at issue here because they do not 
address the statutory provision at issue and they interpret 
a  purported government  limitation on  the use  of foreign 
language, which is not the case here.

9 See Forfeiture Order, 18 FCC Rcd 26611, 26613 at  7.

10 See id., 18 FCC Rcd  26611, 26615 at  12.  As correctly 
noted  by  the Bureau  in  the  Forfeiture Order,  Minority 
failed to  provide specific translations for  the Met-Life, 
Scandinavian  Furniture, Sincere  Plumbing,  and East  West 
Bank  announcements.  Id.   Instead, Minority  commented on 
the translations  provided by  the complainant,  which were 
found  at  Attachment  P  to  Minority's  March  25,  2002, 
response, and  identified as Announcements  4, 5, 6  and 7.  
See id.,  citing NAL at   23-25. We find that  the Bureau 
properly  evaluated  Minority's   comments,  and  correctly 
concluded  that  they  did  not  alter  the  announcements' 
overall promotional  nature, which was demonstrated  by the 
announcements'   linguistic  and   visual  elements.    See 
Forfeiture Order, 18 FCC Rcd 26611, 26615 at  12.   

11 See Board of Education  of New York (WNYE-TV), Letter of 
Caution, 7 FCC Rcd 6864 (MMB 1992).

12 Cf. Pine-Aire  Broadcasting Corporation, Inc. (WRLS-FM), 
Memorandum  Opinion  and  Order,  4  FCC  Rcd  1553  (1989) 
(reliance on  advice rendered by Commission  officials may, 
in  appropriate  circumstances,   constitute  a  mitigating 
factor to be considered in determining forfeiture amount).

13 Minority misstates the  Forfeiture Order's holding.  The 
Bureau  cited   only  17   announcements  in   setting  the 
forfeiture amount at $10,000.  See Forfeiture Order, 18 FCC 
Rcd 26611, 26616-17 at  15.

14  See id.; 47  U.S.C.   503(b)(2); note  to 47  C.F.R.  
1.80(b)(4).   Under   section  503(b)  of  the   Act,  each 
prohibited  broadcast is  deemed to  constitute a  separate 

15 See  Forfeiture Order, 18  FCC Rcd 26611, 26616-17  at  
15, n.55.

16 Id.

17 See Pine-Aire  Broadcasting Corporation, Inc. (WRLS-FM), 

18 See  Xavier University, Memorandum Opinion  and Order, 5 
FCC  Rcd   4920  (1990)  (the  Commission   defers  to  the 
``reasonable, good faith judgments'' exercised by licensees 
and  finds violations  only where  material is  ``clearly'' 
promotional as opposed to merely identifying).  

19 Minority  further argues  that the announcement  made on 
behalf of State Farm could not be deemed to violate section 
399B of the  Act because consideration was  not supplied by 
the sponsor to the broadcaster itself.  First, we note that 
Minority cites no statutory language or case law supporting 
its assertion,  and pertinent precedent has  held precisely 
otherwise.  See  Forfeiture Order, 18 FCC  Rcd 26611, 26616 
at  13, citing 1982 Policy Statement, 90 FCC 2d at 911-12, 
 26-28.  Moreover, Minority ignores that the Bureau found 
the circumstances  surrounding Minority's broadcast  of the 
State  Farm  announcement to  be  mitigating,  and did  not 
include  that  announcement  in its  determination  of  the 
forfeiture amount.