Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
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
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Nos. EB-
) and EB-01-IH-0652
MINORITY TELEVISION PROJECT, INC. ) NAL/Acct. No.
) FRN 0005704366
Licensee of Noncommercial Educational ) Facility
ID No. 43095
Television Station KMTP-TV, )
San Francisco, California )
MEMORANDUM OPINION AND ORDER
Adopted: October 20, 2005 Released:
October 26, 2005
By the Commission:
1. In this Memorandum Opinion and Order, we dismiss
in part and otherwise deny a Petition for Reconsideration
filed on January 24, 2005, by Minority Television Project,
Inc. (``Minority''), licensee of noncommercial educational
Station KMTP-TV, San Francisco, California (``Petition'').
Minority seeks reconsideration of the Commission's denial of
its January 22, 2004, Application for Review.1 In its
Application for Review, Minority sought review of a
Forfeiture Order2 issued by the Chief, Enforcement Bureau
(``Bureau''), which imposed a monetary forfeiture in the
amount of $10,000 against it for willful and repeated
violation of the statute and Commission's rules prohibiting
the broadcast of advertisements on noncommercial educational
2. In the underlying NAL and Forfeiture Order
proceeding, the Bureau sanctioned Minority for its willful
and repeated broadcast of approximately 1,911 prohibited
advertisements over noncommercial educational Station KMTP-
TV, San Francisco, California, during a 26-month period
commencing in January 2000.4 In so acting, the Bureau also
dismissed, as moot, Minority's related June 13, 2000,
Request for Declaratory Ruling.5
3. Thereafter, in the December 23, 2004, Order on
Review, the Commission found that Minority's arguments had
been fully and correctly addressed and rejected in the
Bureau's underlying proceeding.6 The Commission noted that
the current statutory scheme, rules and policies governing
noncommercial educational broadcasters have been in place
for more than twenty years, and that, in this proceeding,
the Bureau fully considered language-specific issues in
reaching its findings at every stage of this proceeding.7
Furthermore, the Commission rejected Minority's argument
that the noncommercial underwriting statute, rules and
policy impose an English-only standard or discriminate
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, finding that
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, the Commission found no
constitutional infirmity in the regulatory scheme.9 The
Commission further declined Minority's request that it
revisit its underwriting announcement standards and adopt
ones that are ``capable of meaningful prospective use.''10
Significantly, the Commission found that the existing
standards are already clear.11
4. In its Petition, Minority repeats constitutional
and other arguments previously made and rejected in this
proceeding. It also advances an additional argument which
it maintains warrants reconsideration and reversal of the
Order on Review. Minority claims that it has recently
adopted new ``quantitative'' methods to distinguish
acceptable underwriting announcements from unacceptable
commercial advertisements, and maintains that its methods
are less subjective and more reliable than the Commission's
standards,12 and enjoy academic support.13 Minority
contends that these factors demonstrate that it has made
``good faith'' efforts to comply with the Commission's
underwriting rules, and that the sanctioned underwriting
announcements were within the discretion accorded it under
pertinent Commission precedent and, accordingly,
permissible. 14 For these reasons, Minority urges that the
Commission either mitigate or rescind the forfeiture imposed
against it in this case.15
5. Reconsideration is appropriate only where the
petitioner either demonstrates a material error or omission
in the original order or raises new facts or changed
circumstances not known or existing until after the
petitioner's last opportunity to present such matters.16 A
petition that merely repeats arguments previously considered
and rejected will be denied or dismissed as
6. The Petition repeats constitutional or other
arguments regarding our underwriting standards that we have
already considered and rejected.18 We will not reconsider
those already rejected arguments and dismiss the Petition in
part as ``repetitious'' pursuant to 47 C.F.R. § 1.106(b)(3).
7. With regard to Minority's remaining argument, it
does not warrant reconsideration of the Order on Review
because the ``quantitative'' methods to evaluate
underwriting announcements that Minority claims to have
begun to develop in March 2003, are not timely presented
facts or circumstances that warrant reconsideration.
Minority fails to demonstrate, why, ``through the exercise
of ordinary diligence,'' it could not have at least
supplemented its then pending Application for Review to
raise this issue.19
8. Nor does Minority's post-hoc adoption of
quantitative methods to screen its underwriting message
content demonstrate that the licensee has made ``good
faith'' efforts to comply with the Commission's standards.
Even if Minority's use of these quantitative methods was
effective in complying with the Commission's standards,
Minority did not begin to implement these methods until
March 2003, more than a year after the January 2000, to
February 2002, period of its violations of the Commission's
rules prohibiting the broadcast of advertisements on
noncommercial educational stations. Moreover, we are
unconvinced that Minority's use of quantitative methods is,
in fact, any substitute for our established methods of
evaluating whether a noncommercial station has broadcast
commercial advertisements, or that Minority made a good
faith effort to comply with our underwriting rules. We
therefore deny Minority's Petition.20
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED that, pursuant to 47
U.S.C. § 405 and 47 C.F.R. § 1.106(b)(2), (b)(3), the
Petition for Reconsideration filed on January 24, 2005, by
Minority Television Project, Inc., IS DISMISSED IN PART AND
10. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent by Certified
Mail/Return Receipt Requested, to Minority Television
Project, Inc., c/o its attorney, James L. Winston, Esq.,
Rubin, Winston, Diercks, Harris & Cooke, L.L.P., Sixth
Floor, 1155 Connecticut Avenue, N.W., Washington, D.C.
20036, and by regular mail to Lincoln Broadcasting Company,
c/o its attorney, Michael D. Berg, Esq., Law Offices of
Michael D. Berg, 1730 Rhode Island Avenue, N.W., Suite 200,
Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 Minority Television Project, Inc., Order on Review, 19 FCC
Rcd 25116 (2004) (``Order on Review'').
2 Minority Television Project, Inc., Forfeiture Order, 18
FCC Rcd 26611 (Enf. Bur. 2003) (``Forfeiture Order'');
Minority Television Project, Inc., Notice of Apparent
Liability for Forfeiture, 17 FCC Rcd 15646 (Enf. Bur. 2002)
3 See 47 C.F.R. § 73.621(e).
4 See Order on Review, supra, at ¶ 4.
5 See Forfeiture Order, supra, at ¶ 15.
6 See Order on Review, supra, at ¶ 2.
12 Id. at 8-14. Minority claims that it conducts focus
group, academic text, educator, and advertising agency
review to evaluate potential underwriting announcements,
which steps include asking potential viewers to numerically
grade sample announcements as to their relative degree of
13 See Addendum to Petition, submitted May 2, 2005, at
Attachment 1 (letter from Miriam A. Smith, Associate
Professor, Broadcast & Electronic Communication Arts
Department, San Francisco State University, to Bonnie Asano,
President, KMTP-TV, dated April 8, 2005).
14 Id. at 14-15; Xavier University, Letter of Admonition
(Mass Med. Bur. 1989), recon granted, Memorandum Opinion and
Order, 5 FCC Rcd 4920 (1990).
15 Petition at 14-15.
16 WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686
(1964), aff'd sub nom. Lorain Journal Co. v. FCC, 351 F. 2d
824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966); 47
C.F.R. § 1.106(b)(2)(ii), (b)(3) and (c).
Bennett Gilbert Gaines, Memorandum Opinion and Order, 8 FCC
Rcd 3986 (Rev. Bd. 1993); 47 C.F.R. § 1.106(b)(3).
Order on Review, supra, ¶¶ 2-4; Forfeiture Order, supra, 18
FCC Rcd at 26613-18, ¶¶ 9-15.
19 See 47 C.F.R. § 1.106(b)(2)(ii); see also Sagir, Inc.,
Memorandum Opinion and Order, 18 FCC Rcd 15967, 15972 (2003)
(burden squarely on petitioner to satisfy threshold showing
under 47 C.F.R. § 1.106).
20 We also note that the Commission has declined to adopt
quantitative timing and message frequency limitations in
light of the effectiveness of extant deterrents. See
Commission Policy Concerning the Noncommercial Nature of
Educational Broadcast Stations, Second Report and Order, 86
FCC 2d 141, 156 (1981) (finding that quantitative timing and
message frequency limitations were unnecessary); WNYE-TV,
Memorandum Opinion and Order, 7 FCC Rcd 6864, 6865 (Mass
Med. Bur. 1992).