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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) Facility ID No. 134469
AMERICAN INSTITUTE FOR JEWISH EDUCATION
) NAL/Account No.
Licensee of Noncommercial Educational 200932080018
Station WMDI-LP, Lakewood, New Jersey )
1. The Enforcement Bureau ("Bureau") and American Institute for Jewish
Education ("AIJE"), by their authorized representatives, hereby enter into
this Consent Decree for the purpose of terminating the Enforcement
Bureau's investigation into whether AIJE violated Section 399B of the
Communications Act of 1934, as amended, and Section 73.503(d) of the
Commission's Rules, in connection with the broadcast by AIJE of
underwriting acknowledgments over its noncommercial educational Station
WMDI-LP, Lakewood, New Jersey.
2. For the purposes of this Consent Decree, the following definitions
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Adopting Order" means an Order by the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
c. "AIJE" means American Institute for Jewish Education and its
predecessors-in-interest and successors-in-interest.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Complaint" means a third-party telephonic complaint that the Station
broadcast advertisements that may have been received by, or is in the
possession of, the Commission or Bureau on or about December 1, 2006.
g. "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
h. "Effective Date" means the date on which the Commission releases the
i. "Investigation" means the investigation commenced by the Bureau's
monitoring of the Station's broadcast transmissions during the period
consisting of December 2006 and January 2007 and a Letter of Inquiry
dated September 18, 2007, regarding whether AIJE violated the
Commission's Underwriting Laws in connection with its operation of the
Station during the period December 2006 and January 2007.
j. "Parties" mean AIJE and the Bureau.
k. "Rules" mean the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
l. "Station" means Station WMDI-LP, Lakewood, New Jersey (Facility ID No.
m. "Underwriting Laws" mean Section 399B of the Communications Act of
1934, 47 U.S.C. S: 399b, and Sections 73.801 and 73.503(d) of the
Commission's Rules, 47 C.F.R. S:S: 73.801 and 73.503(d).
3. Pursuant to Section 399B(a) of the Act and Section 73.503 of the
Commission's Rules, advertisements are defined as program material
broadcast "in exchange for any remuneration" and intended to "promote
any service, facility, or product" of for-profit entities. Section
399B(b)(2) 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, it
expects that licensees exercise reasonable, "good faith" judgment in
this area, and affords some latitude to the judgments of licensees who
4. On September 18, 2007, the Bureau issued a LOI to AIJE. This LOI
directed AIJE, among other things, to submit sworn written statements
in response to questions relating to allegations or information
suggesting that AIJE had aired announcements that violated the
Underwriting Laws. AIJE responded on November 19, 2007. In the LOI
Response, AIJE admitted to airing the complained-of announcements on
the dates specified in the LOI (i.e., December 13, 2006 and January 5,
2007), as well as during various other periods between February 2006
and May 2007. By its counsel, AIJE clarified responses in its LOI
Response. The announcements may have violated the Underwriting Laws
because they appear to exceed the bounds of what is permissible and
within licensee discretion under the Act and pertinent Commission
III. TERMS OF AGREEMENT
5. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
6. Jurisdiction. AIJE agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
7. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the FCC releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
8. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
Investigation and dismiss the Complaint. In consideration for the
termination of said Investigation and dismissal of the Complaint, AIJE
agrees to the terms, conditions, and procedures contained herein. The
Bureau further agrees that, in the absence of new material evidence,
the Bureau will not use the facts developed in this Investigation
through the Effective Date of the Consent Decree, or the existence of
this Consent Decree, to institute, on its own motion, any new
proceeding, formal or informal, or take any action on its own motion
against AIJE concerning the matters that were the subject of the
Investigation. The Bureau also agrees that it will not use the facts
developed in this Investigation through the Effective Date of this
Consent Decree, or the existence of this Consent Decree, to institute
on its own motion any proceeding, formal or informal, or take any
action on its own motion against AIJE with respect to AIJE's basic
qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, AIJE agrees to maintain a Compliance Plan related to future
compliance with the Underwriting Laws and the Commission's Orders. The
Plan will include, at a minimum, the following components:
a. AIJE will utilize a multi-level review procedure for underwriting
content to be aired on the Station. All scripts of announcements will
continue to be reviewed by AIJE or its staff, prior to broadcast, for
compliance with the Underwriting Laws.
b. AIJE will train employees on acceptable underwriting content that
complies with the Underwriting Laws. Within thirty days of being hired by
AIJE, any new Station employee will be trained as to acceptable
underwriting content that complies with the Underwriting Laws. In
addition, AIJE Station employees will receive refresher training, on an
annual basis, regarding existing guidelines and, where applicable,
pertinent changes to the Underwriting Laws.
c. AIJE will make good faith efforts, with respect to any nationally
distributed programming aired on the Station, to obtain from the
distributors of such programming the copy for underwriting announcements
contained in such programming in advance of such programming's broadcast,
for the purposes of independently reviewing such copy for compliance with
the Underwriting Laws.
d. AIJE will also implement and maintain a plan to educate prospective
underwriters about appropriate underwriting content and how AIJE
incorporates such underwriting content in the messages that it prepares
for underwriter approval and eventual broadcast. To that end, AIJE will
summarize the Underwriting Laws for each client before it accepts any
contract with the prospective underwriter to air underwriting messages
over the Station and prepares the underwriting message for the
underwriter's review. AIJE will not broadcast any announcement that does
not comply with the Underwriting Laws.
e. Termination Date. Unless stated otherwise, the requirements of the
Compliance Plan will expire three (3) years after the Effective Date.
10. Compliance Reports. AIJE will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after the
Effective Date, twenty-four months after the Effective Date, and upon
expiration of this Consent Decree, three years after the Effective Date.
Each compliance report shall include a compliance certificate from an
officer, as an agent of AIJE, stating that the officer has personal
knowledge that AIJE has established and maintained on an ongoing basis
operating procedures intended to ensure compliance with this Consent
Decree, together with an accompanying statement explaining the basis for
the officer's compliance certification. Each compliance report will
describe any significant difficulties the Licensee has encountered during
the reporting period in ensuring compliance with the Underwriting Laws,
what steps it has taken to resolve those difficulties, and the success of
those steps in doing so. All compliance reports shall be submitted to the
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 4-C330, Washington,
11. Voluntary Contribution. AIJE agrees that it will make a voluntary
contribution to the United States Treasury in the amount of seven thousand
dollars ($7,000.00). Such contribution shall be made in seven (7) monthly
payments of one thousand dollars ($1,000.00) each. The first payment is to
be made within thirty (30) calendar days of the Effective Date, and the
balance paid in subsequent consecutive monthly installments as set forth
above. The payments must be made by check or similar instrument, payable
to the order of the Federal Communications Commission. The payments must
include the NAL/Account Number and FRN Number referenced in the caption to
the Adopting Order. Payments by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payments by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis,
MO 63101. Payments by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payments 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
23A (call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). AIJE will also send electronic notification on the
dates said payments are made to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov, and
12. Waivers. AIJE waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or to
otherwise challenge or contest the validity of this Consent Decree and the
Order adopting this Consent Decree, provided the Commission issues an
Order adopting the Consent Decree without change, addition, modification,
or deletion. AIJE shall retain the right to challenge Commission
interpretation of the Consent Decree or any terms contained herein. If
either Party (or the United States on behalf of the Commission) brings a
judicial action to enforce the terms of the Adopting Order, neither AIJE
nor the Commission shall contest the validity of the Consent Decree or the
Adopting Order, and AIJE shall waive any statutory right to a trial de
novo. AIJE hereby agrees to waive any claims it may otherwise have under
the Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501
et seq., relating to the matters addressed in this Consent Decree.
13. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted by
the Commission (except an Order specifically intended to revise the terms
of this Consent Decree to which AIJE does not expressly consent) that
provision will be superseded by such Commission rule or Order.
14. Successors and Assigns. AIJE agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
15. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute either
an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders. The Parties
agree that this Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, AIJE does not admit or deny
noncompliance, violation or liability for violating the Act, the
Commission's Rules or Orders in connection with the matters that are the
subject of this Consent Decree.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to affect
the meaning or interpretation of this Consent Decree.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
19. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed and
delivered, shall be an original, and all of which counterparts together
shall constitute one and the same fully executed instrument.
Kris Anne Monteith
American Institute for Jewish Education
See 47 U.S.C. S: 399b.
47 C.F.R. S: 73.801 makes certain rules, including 47 C.F.R. S: 73.503,
applicable to low power FM stations, such as Station WMDI-LP. See 47
C.F.R. S:S: 73.801 and 73.503(d).
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to American Institute for Jewish
Education, dated September 18, 2007 ("LOI").
See supra, note 2.
See 47 U.S.C. S: 399b.
See 47 U.S.C. S: 399b(a).
See 47 U.S.C. S: 399b(b)(2).
See Commission Policy Concerning the Noncommercial Nature of Educational
Broadcasting Stations, Public Notice (1986), republished, 7 FCC Rcd 827
See Xavier University, Letter of Admonition, issued November 14, 1989
(Mass Med. Bur.), recons. granted, Memorandum Opinion and Order, 5 FCC Rcd
See Letter from Barry A. Friedman, Esq., to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated November 19, 2007, and filed on
behalf of AIJE ("LOI Response"). The LOI Response was filed pursuant to
extensions of time for filing a response.
See id. at Declaration 1-3, contained with LOI Response.
See Email from Barry A. Friedman, Esq., to Melissa Marshall, dated August
15, 2008; Emails from Barry A. Friedman, Esq., to Melissa Marshall, dated
August 18, 2008; Email from Barry A. Friedman, Esq., to Melissa Marshall,
dated September 11, 2008.
See Xavier University, supra, note 10.
Federal Communications Commission DA 09-25
Federal Communications Commission ________FCC 08-