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                                   Before the

                       Federal Communications Commission

                              Washington, DC 20554

                                                  )   EB-05-IH-0974          
     In the Matter of                                                        
                                                  )   Facility ID No. 31936  
     JONES COLLEGE                                                           
                                                  )   NAL/Account No.        
     Licensee of Noncommercial Educational            200932080019           
     Station WKTZ-FM, Jacksonville, Florida       )                          
                                                      FRN 0001824077         

                                FORFEITURE ORDER

   Adopted: July 31, 2009 Released: July 31, 2009

   By the Chief, Enforcement Bureau:


   1. In this Forfeiture Order, we impose a monetary forfeiture of $4,500
   against Jones College ("Jones" or "Licensee"), licensee of noncommercial
   educational Station WKTZ-FM, Jacksonville, Florida ("Station"), for
   violating Section 399B of the Communications Act of 1934, as amended (the
   "Act"), and Section 73.503(d) of the Commission's Rules by broadcasting
   advertisements over the Station.

   I. background

   2. This case arises from a complaint made to the Commission alleging that
   noncommercial educational Station WKTZ-FM had broadcast prohibited
   advertisements. Following the complaint, agency monitoring and recording
   of station broadcasts was conducted on July 2 and 9, 2005. Thereafter, the
   Enforcement Bureau ("Bureau") inquired of the Licensee concerning these
   matters. Jones responded to the Bureau's letter of inquiry ("LOI") on
   December 1, 2005.

   3. On January 16, 2009, the Bureau issued a Notice of Apparent Liability
   for Forfeiture ("NAL"), finding that the Licensee had apparently violated
   the pertinent statute and Commission Rules, and proposing a monetary
   forfeiture of $5,000. On February 13, 2009, Jones responded to the NAL,
   alleging that the Bureau's ruling is erroneous and that the proposed
   forfeiture should be cancelled or reduced.


   4. The proposed forfeiture amount in this case was assessed in accordance
   with Section 503(b) of the Communications Act, Section 1.80 of the
   Commission's Rules, and the Commission's forfeiture guidelines set forth
   in its Forfeiture Policy Statement. In assessing forfeitures, Section
   503(b) of the Act requires that we take into account the nature,
   circumstances, extent, and gravity of the violation, and with respect to
   the violator, the degree of culpability, any history of prior offenses,
   ability to pay, and other matters as justice may require. As discussed
   further below, we have examined Jones's response to the NAL pursuant to
   the aforementioned statutory factors, our Rules, and the Forfeiture Policy
   Statement, and find that cancellation is not appropriate in this case.
   Jones also argues in its response that the Bureau's NAL was time barred
   and we reject that claim. We find, however, that a partial reduction in
   the forfeiture amount is warranted because one announcement at issue in
   the NAL aired permissibly on behalf of Vystar Credit Union, a nonprofit

   A. The NAL was Timely Issued by the Enforcement Bureau.

   5. First, we turn to Jones's argument that the NAL is time-barred. In
   support, Jones points to Section 503 of the Communications Act and Section
   1.80 of the Commission's Rules and contends that "because the NAL was
   issued more than one year after the events complained of, the forfeiture
   is barred by statute and by Commission rules."

   6. The applicable statute, Section 503, provides in pertinent part:

   No forfeiture penalty shall be determined or imposed against any person
   under this subsection if-- (A) such person holds a broadcast station
   license issued under Title III of this Act and if the violation charged
   occurred--(i) more than 1 year prior to the date of issuance of the
   required notice or notice of apparent liability; or (ii) prior to the date
   of commencement of the current term of such license, whichever is

   In U.S. v. Evergreen Media Corporation of Chicago, AM ("Evergreen"), the
   Court referred to the following excerpt from the Senate Commerce, Science
   and Transportation Committee Report to interpret Section 503:

   For Broadcast licensee S.1547, as reported, makes the limitations period
   within which the FCC must issue a notice of forfeiture liability 1 year
   from the date on which the violation occurred, or within the current
   license term, whichever is the longer period, but not to exceed 3 years.

   The Evergreen Court found that "when Congress said earlier [in Section
   503], they meant later." Consequently, the Court found that a notice of
   apparent liability that was issued over one year after the violation, but
   before the expiration of the license term in which the violations
   occurred, was timely. Likewise, in the matter at hand, while the NAL was
   issued more than one year after the conduct in question, it was issued
   during the current license term in which the conduct occurred. Therefore,
   contrary to Jones's argument, the NAL was timely issued.

   B. Jones College Has Willfully and Repeatedly Broadcast Advertisements in

   Violation of Section 399B of the Act and Section 73.503 of the Commissions

   7. 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. The pertinent statute
   specifically provides that noncommercial educational stations may not
   broadcast advertisements. Although contributors of funds to such 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 businesses.
   Specifically, such announcements may not contain comparative or
   qualitative descriptions, price information, calls to action, or
   inducements to buy, sell, rent or lease. At the same time, however, the
   Commission has acknowledged that it is at times difficult to distinguish
   between language that promotes versus that which merely identifies the
   underwriter. Consequently, the Commission expects that licensees exercise
   reasonable, "good faith" judgment in this area, and affords some latitude
   to the judgments of licensees who do so.

   8. In its NAL Response, Jones again argues that it had an oral contract
   with the producer of the program and not the sponsors of the program, and
   that the third-party producer, Mr. Norm Vincent, did not provide the
   Station direct consideration in exchange for airing the show. Furthermore,
   the Licensee argues that the NAL incorrectly found that the programming
   supplied by Mr. Vincent constituted consideration because "educational
   programming cannot reasonably be considered remuneration." Consequently,
   Jones argues that the broadcasts were not made in exchange for
   consideration because none existed.

   9. Jones points to no precedent to support its arguments. To the contrary,
   the NAL's analysis is fully consistent with Commission precedent and
   policy that programming itself may constitute legal consideration for
   purposes of the statute. In this case, we find, contrary to Jones's
   position, that it did receive consideration for the broadcast of the
   announcements in the form of the program material. The Commission has
   stated that "[c]onsideration . . . encompasses the contribution of
   programming material and funds, goods and/or services used for
   programming, as well as in kind contributions (e.g., studio equipment)
   which frees station funds for programming purposes." Further, Jones's
   contention that educational programming cannot be considered consideration
   is unsupported. The Commission has drawn no distinction as to what type or
   quality of programming should constitute consideration for purposes of the

   10. Furthermore, the Commission has determined that lack of privity is not
   a bar to finding that consideration was exchanged for the broadcast of an
   announcement. Thus, Jones is not absolved from liability simply because a
   third-party producer supplied the programming. In very limited instances,
   the Commission has considered third-party produced programming to be a
   mitigating, but not an exculpatory, fact. Those cases involved programming
   that was supplied automatically through a satellite feed and announcements
   that were broadcast only once. In this case, by Jones's own admission, the
   third-party supplier produced and recorded the program, "Swingtime,"
   approximately one week in advance of its ultimate broadcast, thus, the
   program was not aired inadvertently. Furthermore, Jones continued to
   broadcast the subject announcements in "Swingtime" multiple times over the
   Station and, as such, its violation was not de minimis. Therefore, on
   these facts, we do not consider mitigation appropriate.

   11. Jones argues that the Station made "good faith" efforts to comply with
   the Commission's Rules and that it, ultimately, terminated the program
   after receipt of the Commission's November 10th LOI. As noted in the NAL,
   post-facto remedial efforts are not mitigating. Furthermore, as the NAL
   pointed out, many of the announcements at issue in the present case are
   the same as those for which Jones has been previously admonished. Thus, we
   conclude that Jones has failed to establish that the NAL erred in its
   findings and we adopt the apparent conclusion contained in the NAL that
   the Station aired announcements that violated the Commission's
   underwriting rules in exchange for consideration.

   12. Jones argues that the Vystar Credit Union announcement was aired
   permissibly because the sponsor is a nonprofit organization. Jones
   contends that announcements made on behalf of nonprofits are permissible
   pursuant to the Commission's 1982 Policy Statement. There, the Commission
   stated that "public broadcasters are authorized to air promotional
   announcements sponsored by non-profit organizations." We note that in our
   November 10th LOI, we specifically asked Jones to identify, for each
   announcement, whether the requesting person or entity was a not-for-profit
   enterprise. In its LOI Response, Jones failed to identify Vystar Credit
   Union as a nonprofit entity at that time. The Licensee's carelessness in
   its earlier filing resulted in an inaccurate conclusion in the NAL and
   wasted government resources. Although we will exclude the Vystar Credit
   Union announcement from our forfeiture calculation, we admonish Jones for
   its negligent misrepresentation in violation of Section 1.17 of our Rules,
   and caution the Licensee to exercise greater care in its responses to the
   Commission in the future. 

   13. Finally, Jones asserts that "no penalty should be imposed, and that,
   should any penalty have been justified, it should have been no more than a
   nominal amount less than $500." We are unconvinced that either
   cancellation or a minimal forfeiture would be appropriate in light of
   Commission precedent in similar underwriting cases. We find, however, that
   a partial reduction is appropriate based on our exclusion of the
   non-profit Vystar Credit Union announcement noted above. Weighing the
   single broadcast of the Vystar announcement against the overall number of
   announcements and their respective repetitions satisfies us that a $500
   reduction properly accounts for its exclusion. Accordingly, as a result of
   our review of Jones's response to the NAL, and in view of the statutory
   factors and the Forfeiture Policy Statement, we affirm the NAL and issue a
   monetary forfeiture in the amount of $4,500.


   14. ACCORDINGLY, IT IS ORDERED  that, pursuant to Section 503(b) of the
   Communications Act of 1934, as amended (the "Act"), and Section 1.80 of
   the Commission's Rules, Jones College IS LIABLE FOR A MONETARY FORFEITURE
   in the amount of $4,500 for willfully and repeatedly violating Section
   399B of the Act, as amended, and Section 73.503(d) of the Commission's

   15. IT IS FURTHER ORDERED that, pursuant to the authority delegated in
   Section 0.111(a)(17) of the Commission's Rules, Jones College IS
   ADMONISHED for violating Section 1.17(a)(2) of the Rules.

   16. Payment of the forfeiture shall be made in the manner provided for in
   Section 1.80 of the Rules within thirty (30) days of the release of this
   Forfeiture Order. If the forfeiture is not paid within the period
   specified, the case may be referred to the Department of Justice for
   collection pursuant to Section 504(a) of the Act. Payment of the
   forfeiture must be made by check or similar instrument, payable to the
   order of the Federal Communications Commission. The payment must include
   the NAL/Account No. and FRN No. referenced above. Payment by check or
   money order may be mailed to Federal Communications Commission, P.O. Box
   979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to
   U.S. Bank-Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza,
   St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number
   021030004, receiving bank TREAS/NYC, and account number 27000001. For
   payment by credit card, an FCC Form 159 (Remittance Advice) must be
   submitted. When completing the FCC Form 159, enter the NAL/Account Number
   in block number 24A (payment type code). Jones will also send electronic
   notification on the date said payment is made to,,, and Requests for full payment under an
   installment plan should be sent to: Chief Financial Officer -- Financial
   Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554.
   Please contact the Financial Operations Group Help Desk at 1-877-480-3201
   or Email: with any questions regarding payment

   17. IT IS FURTHER ORDERED that a copy of this Order shall be sent, by
   Certified Mail/Return Receipt Requested, to Jones College, 5353 Arlington
   Expressway, Jacksonville, Florida, 32211, and by regular mail to its
   counsel, Christopher D. Imlay, Esq., Booth, Freret, Imlay & Tepper, P.C.,
   14356 Cape May Road, Silver Spring, Maryland 20904-6011.


   Kris Anne Monteith

   Chief, Enforcement Bureau

   See 47 U.S.C. S: 399b.

   See 47 C.F.R. S: 73.503(d).

   See Case Report, prepared by the Tampa Field Office, Enforcement Bureau,
   and dated September 19, 2005 ("Field Office Report"), at 2.

   See id. at 2-3.

   See Letter from William D. Freedman, Deputy Chief, Investigations and
   Hearings Division, Enforcement Bureau, to Jones College, dated November
   10, 2005 ("November 10th LOI").

   See Letter from Christopher D. Imlay, Esq., Counsel to Jones College, to
   Kenneth M. Scheibel, Jr., Attorney, and William D. Freedman, Deputy Chief,
   Investigations and Hearings Division, Enforcement Bureau, dated December
   1, 2005 ("LOI Response").

   See Jones College, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd
   231 (Enf. Bur. 2009) ("NAL").

   See Jones College, Response to Notice of Apparent Liability for
   Forfeiture, filed February 13, 2009 ("NAL Response").

   See 47 U.S.C. S: 503(b).

   See 47 C.F.R. S: 1.80.

   See The Commission's Forfeiture Policy Statement and Amendment of Section
   1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
   Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
   ("Forfeiture Policy Statement").

   See 47 U.S.C. S: 503(b)(2)(E).

   See NAL Response at 3.


   See 47 U.S.C. S: 503(b)(6).

   See U.S. v. Evergreen Media Corporation of Chicago, AM, 832 F. Supp. 1179,
   1182 (N.D. Ill. 1993) ("Evergreen"). We note that the 1992 amendments to
   Section 503 deleted the phrase: "but not to exceed 3 years." See
   Telecommunications Authorization Act of 1992, Pub. L. No. 102-538, 106
   Stat. 3533 (codified as amended at 47 U.S.C. S: 503 (b)(6)).

   Evergreen, 832 F. Supp. at 1182.

   See id.

   See File No. BRED-20030930AXW (2004) (granting Jones's application for a
   license renewal on January 22, 2004 for a term expiring on February 1,

   See 47 U.S.C. S: 399b(a).

   See id.

   See Public Notice, In the Matter of the Commission Policy Concerning the
   Noncommercial Nature of Educational Broadcasting Stations (1986),
   republished, 7 FCC Rcd 827 (1992) ("Public Notice").

   See id.

   See Xavier University, Letter of Admonition, issued November 14, 1989
   (Mass Med. Bur.), recons. granted, Memorandum Opinion and Order, 5 FCC Rcd
   4920 (1990) ("Xavier").

   See NAL Response at 4.


   See id.

   See Commission Policy Concerning the Noncommercial Nature of Educational
   Broadcast Stations, Memorandum Opinion and Order, 90 FCC 2d 895, 911
   (1982), recons. granted in part, Memorandum Opinion and Order, 97 FCC 2d
   255 (1984) ("1982 Policy Statement").

   See 1982 Policy Statement, 90 FCC 2d at 911.

   See Minority Television Project, Inc., Forfeiture Order, 18 FCC Rcd 26611,
   26615 (Enf. Bur. 2003) ("Minority Television") (finding that the Act does
   not require the consideration involved to be supplied directly by the
   sponsor or underwriter itself) (subsequent history omitted).

   Cf. Minority Television, 18 FCC Rcd at 26616; Window to the World
   Communications, Inc., Letter, 12 FCC Rcd 20239 (Mass Media Bur. 1997),
   Forfeiture Order, 15 FCC Rcd 10025 (Enf. Bur. 2000) (forfeiture reduced).

   See NAL Response at 5.

   See id. at 4-6.

   See NAL, 24 FCC Rcd at 236; see also Hispanic Broadcast System, Inc.,
   Forfeiture Order, 20 FCC Rcd 12008, 12009 (Enf. Bur. 2005).

   See NAL, 24 FCC Rcd at 235; see also Jones College, Memorandum Opinion and
   Order, 18 FCC Rcd 24971 (Enf. Bur., Investigations & Hearings Div., 2003).

   See NAL Response at 6.

   See id.; see also 1982 Policy Statement, Memorandum Opinion and Order, 90
   FCC 2d at 900 n. 16.

   1982 Policy Statement, 90 FCC 2d at 901.

   See November 10th LOI at 4.

   See LOI Response at 3 (referring only to Fleet Landing and St. Catherine's
   Laboure Manor as nonprofit organizations).

   47 C.F.R. S: 1.17(a)(2) (prohibiting negligent misrepresentation in
   filings with the Commission).

   See, e.g., Benko Broadcasting Company, Memorandum Opinion and Order, 3 FCC
   Rcd 6838, 6841 (Media Bureau, Video Services Div. 1988); Fatima Response,
   Inc., Memorandum Opinion and Order, 14 FCC Rcd 18543, 18546 (1999),
   recons. dismissed, 15 FCC Rcd 10520 (admonishing licensee for carelessness
   in inaccurate statements made in a Commission filing).  We find that an
   admonishment, and not a monetary sanction, is appropriate based on the
   particular circumstances of this case, but caution that future Section
   1.17 violations by Jones College may result in the imposition of a
   monetary forfeiture.  Cf. Invision Industries, Inc., Notice of Apparent
   Liability for Forfeiture and Order, 23 FCC Rcd 13095, 13099-104 (2008)
   (imposing a $4,000 forfeiture for violation of Section 1.17(a)(2)
   for failing to provide accurate information concerning material
   information in an investigation that, if accurately produced in the first
   instance, would have been against its interest, unlike the instant case,
   where earlier accurate disclosure would have been exculpatory); Syntax
   Brillian, Forfeiture Order and Notice of Apparent Liability for
   Forfeiture, 23 FCC Rcd 6323 (2008).  In both Invision and Syntax Brillian,
   in contrast to the instant case, the extent and relative gravity of the
   underlying substantive violations were more significant, the
   investigations more complex, and the overall impact of the apparent
   Section 1.17(a)(2) violations more serious.

   NAL Response at 7.

   See, e.g., Southern Rhode Island Public Radio Broadcasting, Inc.,  Notice
   of Apparent Liability for Forfeiture, 15 FCC Rcd 8115 (Enf. Bur. 2000)
   ($1,000 forfeiture imposed for a first time violation); Southern Rhode
   Island Public Radio Broadcasting, Inc., Order and Consent Decree, 23 FCC
   Rcd 3769 (Enf. Bur. 2008) (directing Licensee to pay a settlement amount
   of $7,500, which was based on among other factors, recognition of the
   licensee's blemished prior history).

   See 47 U.S.C. S: 503(b), 47 C.F.R. S: 1.80.

   See 47 U.S.C. S: 399b; 47 C.F.R. S: 73.503(d).

   47 C.F.R. S: 0.111(a)(17) (delegating to the Enforcement Bureau the
   authority to issue admonishments).

   See 47 C.F.R. S: 1.80.

   See 47 U.S.C. S: 504(a).

   Federal Communications Commission DA 09-1733


   Federal Communications Commission ___________ DA 09-1733