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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

     In the Matter of                              )                         
                                                       Facility ID No. 9426  
     CAYUGA COUNTY COMMUNITY COLLEGE               )                         
                                                       NAL/Account No.       
     Licensee of Noncommercial Educational         )   200932080001          
     Station WDWN(FM), Auburn, New York                                      
                                                   )   FRN 0003414620        


   Adopted: January 16, 2009 Released: January 16, 2009

   By the Chief, Enforcement Bureau:


   1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
   that Cayuga County Community College ("Cayuga"), licensee of noncommercial
   educational Station WDWN(FM), Auburn, New York, willfully and repeatedly
   broadcast prohibited advertisements in apparent violation of Section 399B
   of the Communications Act of 1934, as amended (the "Act"), and Section
   73.503 of the Commission's rules. Based upon our review of the facts and
   circumstances of this case, we conclude that Cayuga is apparently liable
   for a monetary forfeiture in the amount of $2,500.


   2. This case arises from a complaint made to the Commission on August 26,
   2005, alleging that noncommercial educational Station WDWN(FM) had aired
   prohibited commercial announcements during its August 13, 2005, broadcast
   of an Auburn Doubledays baseball game. Thereafter, the Enforcement Bureau
   ("Bureau") inquired of the licensee concerning the allegations contained
   in the complaint. Cayuga responded to the LOI on December 19, 2006.


   3. Under Section 503(b)(1) of the Act, any person who is determined by the
   Commission to have willfully or repeatedly failed to comply with any
   provision of the Act or any rule, regulation, or order issued by the
   Commission shall be liable to the United States for a forfeiture penalty.
   Section 312(f)(1) of the Act defines willful as "the conscious and
   deliberate commission or omission of [any] act, irrespective of any intent
   to violate" the law. The legislative history to Section 312(f)(1) of the
   Act clarifies that this definition of willful applies to both Sections 312
   and 503(b) of the Act, and the Commission has so interpreted the term in
   the Section 503(b) context. The Commission may also assess a forfeiture
   for violations that are merely repeated, and not willful.  "Repeated"
   means that the act was committed or omitted more than once, or lasts more
   than one day. In order to impose such a penalty, the Commission must issue
   a notice of apparent liability, the notice must be received, and the
   person against whom the notice has been issued must have an opportunity to
   show, in writing, why no such penalty should be imposed. The Commission
   will then issue a forfeiture if it finds, by a preponderance of the
   evidence, that the person has willfully or repeatedly violated the Act or
   a Commission rule. As described in greater detail below, we conclude under
   this procedure that Cayuga is apparently liable for a forfeiture in the
   amount of $2,500 for its apparent willful and repeated violations of the
   Commission's Underwriting Rules.

    A. Cayuga Has Willfully and Repeatedly Broadcast Advertisements in

   Violation of Section 399B of the Act and Section 73.503 of the
   Commission's Rules

   4. 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.

   5. At issue here are ten underwriting announcements, transcripts of which
   are attached, that Cayuga does not deny that its station broadcast on
   August 13, 2005. Although Cayuga claims that it is "unable to verify the
   accuracy or inaccuracy" of the language reflected in the transcripts of
   the announcements, it acknowledges that the station aired underwriting
   announcements on that date, and that the underwriters mentioned "appear to
   be the same list of underwriters that would have been included in the
   broadcast." Cayuga further represents that all of the entities mentioned
   in the announcements are for-profit entities. Cayuga contends that it
   received no consideration from any for-profit entity for broadcasting the
   announcements, but instead claims that sponsorship donations of $100 each,
   per season, were made by the underwriters directly to the Auburn
   Doubledays non-profit baseball club to help defray their travel expenses.
   Cayuga claims that the station, after receipt of the Commission's inquiry,
   has revised its practices for the inclusion of underwriting announcements
   on similar broadcasts.

   6. After careful review of the record in this case, we find that the
   announcements set forth in the attached transcript were made on behalf of
   for-profit entities and apparently exceed the bounds of what is
   permissible under Section 399B of the Act and the Commission's pertinent
   rules and policies, notwithstanding the "good faith" discretion afforded
   licensees under Xavier, supra. We conclude that they appear to constitute
   prohibited advertisements because they invite or urge business patronage
   (e.g., "[m]eets all your banking needs. Visit one of our four branches"),
   distinguish favorably the respective underwriters from their competitors
   by stating or implying that they offer superior service, products,
   warranty or price (e.g., "flexible financing," "Budweiser and Bud Lite are
   discounted," "sport medicine guarantee," "where our aim is excellence and
   our goal perfection"), and describe their underwriters through comparative
   or qualitative references made either directly or indirectly (e.g.,
   "offers advantages that are unique to any other firm, with sound
   investment practices based on intensive research").

   7. Moreover, we find that a quid pro quo exchange of consideration between
   the underwriter and the licensee - a prerequisite to finding a violation
   of Section 399B - took place in this case. Cayuga contends that it
   received no support of any kind from any for-profit entity, and that any
   consideration involved was furnished by the underwriters to the baseball
   club whose games were broadcast. Cayuga thus suggests that the station's
   broadcast of any underwriting announcements contained in the broadcast was
   not supported by consideration and was therefore harmless under the Act.

   8. We reject this argument. The Act does not require that the
   consideration involved be supplied directly by the sponsor or underwriter
   itself. Moreover, cognizable consideration may take many forms, including
   programming itself. In this case, we find that sufficient consideration
   exists because the baseball club furnished the programming by permitting
   Cayuga to broadcast the club's road games. Although Cayuga claims that the
   decision to air the material was based on its civic-minded determination
   to help publicize the club, the fact that Cayuga may have had other
   reasons for broadcasting the material does not negate the fact that Cayuga
   also received consideration, in this case the club's permission to air
   such material. Finally, we do not find mitigating Cayuga's contention that
   it has since revised its practices to preclude further lapses. This
   argument ignores settled precedent that a licensee's post-facto remedial
   efforts are not mitigating.

   B. Proposed Forfeiture

   9. The Commission's Forfeiture Policy Statement sets a base forfeiture
   amount of $2,000 for violation of the underwriting requirements. The
   Forfeiture Policy Statement also provides that the Commission shall adjust
   a forfeiture based upon consideration of the factors enumerated in Section
   503(b)(2)(E) of the Act, such as "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 such other
   matters as justice may require."

   10. In the Christian Voice NAL, the Bureau proposed a $20,000 forfeiture
   against a noncommercial educational broadcast licensee for airing ten
   separate announcements on several thousand occasions in apparent violation
   of the Commission's Underwriting Rules over a fifteen-month period of
   time. Here, it appears that on August 13, 2005, Cayuga willfully and
   repeatedly broadcast ten separate advertisements on at least one occasion
   in violation of Section 399B of the Act and Section 73.503(d) of the
   Commission's rules. While the number of prohibited announcements here is
   similar to Christian Voice NAL, the number of repetitions is substantially
   fewer and the period of time over which they aired is substantially less.
   Based on all the circumstances, and after examining forfeiture actions in
   other recent underwriting cases, we believe that a forfeiture of $2,500 is


   11. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of
   1934, as amended, and Sections 0.111, 0.311, and 1.80 of the Commission's
   rules, Cayuga County Community College, licensee of noncommercial
   educational Station WDWN(FM), Auburn, New York, is hereby NOTIFIED OF ITS
   APPARENT LIABILITY FOR A FORFEITURE in the amount of $2,500 for willfully
   and repeatedly broadcasting advertisements in violation of Section 399B of
   the Act, 47 U.S.C. S: 399b, and Section 73.503 of the Commission's rules,
   47 C.F.R. S: 73.503, on August 13, 2005.

   12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
   rules, that within thirty days of the release of this Notice, Cayuga SHALL
   PAY the full amount of the proposed forfeiture or SHALL FILE a written
   statement seeking reduction or cancellation of the proposed forfeiture.

   13. 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 Number and FRN Number 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[s] 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 23A (call
   sign/other ID), and enter the letters "FORF" in block number 24A (payment
   type code). 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 procedures.
   Cayuga County Community College will also send electronic notification on
   the date said payment is made to,, and

   14. The response, if any, shall be mailed to Hillary S. DeNigro, Chief,
   Investigations and Hearings Division, Enforcement Bureau, Federal
   Communications Commission, 445 12th Street, S.W, Room 4-C330, Washington
   DC 20554 and SHALL INCLUDE the NAL/Acct. No. referenced above. To the
   extent practicable, the response, if any, shall also be sent via e-mail to,, and

   15. The Commission will not consider reducing or canceling a forfeiture in
   response to a claim of inability to pay unless the respondent submits: (1)
   federal tax returns for the most recent three-year period; (2) financial
   statements prepared according to generally accepted accounting practices
   ("GAAP"); or (3) some other reliable and objective documentation that
   accurately reflects the respondent's current financial status. Any claim
   of inability to pay must specifically identify the basis for the claim by
   reference to the financial documentation submitted.

   16. IT IS FURTHER ORDERED that the above-referenced complaint IS GRANTED
   to the extent indicated herein and IS OTHERWISE DENIED, and the instant
   complaint proceeding IS HEREBY TERMINATED.

   17. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
   Certified Mail/Return Receipt Requested, to Cayuga County Community
   College, 197 Franklin Street, Auburn, New York 13021, and by regular mail
   to its counsel, Cary S. Tepper, Esq., Booth, Freret, Imlay & Tepper, P.C.,
   14356 Cape May Road, Silver Spring, Maryland 20904-6011.


   Kris Anne Monteith

   Chief, Enforcement Bureau


   Set forth below is the relevant text of underwriting announcements
   allegedly broadcast over Station WDWN(FM), Auburn, New York, on August 13,

   Coca Cola Bottling

   Coca Cola is available on Double Days Dollar Discount Nights. With over
   400 brands, they have a drink for everyone.


   Shoppers Club Cards are good for a discount.

   Owasco Beverage

   Budweiser and Bud Lite are discounted on Double Day Dollar Events.

   Adelphia Cable

   Targeted advertising through specialized channels such as ESPN. Jack and
   John are available for advertising at [telephone number].

   Smith Barney

   Time tested way of investing. Smith Barney offers advantages that are
   unique to any other firm, with sound investment practices based on
   intensive research.

   Savannah Bank

   Meets all your banking needs. Visit one of our four branches in the Finger
   Lakes. Banking the old fashioned way.

   Finger Lakes Bottling

   Miller Beer is a cold refreshing beer served at Falcon Park.

   Bank of America

   Provides flexible financing for policemen, firemen, nurses, and others in
   the community that serve it so well.

   Victory Sports Medicine

   Home of the 24-hour sports medicine guarantee.

   Tesoros Department Store

   Where our aim is excellence and our goal perfection.

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

   See 47 C.F.R. S: 73.503 (the "Underwriting Rules").

   See Letter of Jim Seward to the Enforcement Bureau, received August 26,
   2005 ("Complaint"), at 1.

   See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
   Hearings Division, Enforcement Bureau, to Cayuga, dated October 20, 2006

   See Letter from Cary S. Tepper, Esq., Counsel to Cayuga, to Elizabeth H.
   Valinoti, Assistant Division Chief, Investigations and Hearings Division,
   Enforcement Bureau, dated December 19, 2006 ("Response").

   See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).

   47 U.S.C. S: 312(f)(1).

   See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

   See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
   Order, 6 FCC Rcd 4387, 4388 (1991).

   See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
   Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P: 10
   (2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
   for, inter alia, a cable television operator's repeated signal leakage).

   Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
   Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.

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

   See, e.g., SBC Communications, Inc.,  Forfeiture Order, 17 FCC Rcd 7589,
   7591 P: 4 (2002) (forfeiture paid).

   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 Response at 1.



   Id. at 2.

   Id. We note that the Auburn Doubledays, participating in the New York-Penn
   League Class A-Short Season, are owned and operated by Auburn Community
   Owned Non-Profit Baseball Association, Inc.

   Id at 3-5.

   See Attachment, Savannah Bank announcement.

   See Attachment, Bank of America announcement.

   See Attachment, Owasco Beverage announcement.

   See Attachment, Victory Sports Medicine announcement.

   See Attachment, Tesoros Department Store announcement.

   See Attachment, Smith Barney announcement.

   See Response at 2; 4-5.

   We note that  47 U.S.C. S: 399b(a) simply provides: "[f]or purposes of
   this Section, the term `advertisement' means any message or other
   programming material which is broadcast or otherwise transmitted in
   exchange for any remuneration, and which is intended to promote any
   service, facility or product offered by any person who is engaged in such
   offering for profit."

   See In the Matter of the Commission Policy Concerning the Noncommercial
   Nature of Educational Broadcast Stations, Memorandum Opinion and Order, 90
   FCC 2d 895, 911-912, P:P: 26-28 (1982) ("1982 Policy Statement").

   See LOI Response at 3. The 1982 Policy Statement specifically found that
   consideration exists where non-profit organizations, such as the baseball
   club here, furnish "live or taped performances" intended for broadcast.
   See 1982 Policy Statement, 90 FCC 2d at 906, P: 19.

   See Response at 3-5.

   See Capstar TX Limited Partnership (WKSS(FM)), Notice of Apparent
   Liability, 20 FCC Rcd 10636 (Enf. Bur. 2005) (forfeiture paid); AT&T
   Wireless Services, Inc., Notice of Apparent Liability, 17 FCC Rcd 21866,
   21871 (2002); KVGL, Inc., Memorandum Opinion and Order, 42 FCC Rcd 258,
   259 (1973).

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
   17115 (1997) ("Forfeiture Policy Statement"), recons. denied 15 FCC Rcd
   303 (1999); 47 C.F.R. S: 1.80(b).

   47 U.S.C. S: 503(b)(2)(E). See also Forfeiture Policy Statement, 12 FCC
   Rcd at 17100 P: 27.

   See Christian Voice of Central Ohio, Inc.(WCVZ(FM)), 19 FCC Rcd 23663
   (Enf. Bur. 2004) ($20,000 forfeiture initially proposed for underwriting
   violations), forfeiture reduced, 23 FCC Rcd 7594  (Enf. Bur. 2008)
   (forfeiture reduced to $9,000 for good compliance record and after finding
   acceptable a previously sanctioned announcement), recons. den., 23 FCC Rcd
   15943 (2008) (forfeiture paid) (collectively "Christian Voice").

   Cf. Family Life Educational Foundation (KOUZ(FM)), Notice of Apparent
   Liability, 17 FCC Rcd 16317 (Enf. Bur. 2002) (forfeiture paid) ($2,000
   forfeiture imposed for repeat violation involving 120 repetitions of
   single message over a three-month period).

   For purposes of the forfeiture proceeding initiated by this NAL, Cayuga
   shall be the only party to this proceeding.

   Federal Communications Commission DA 09-50_____



   Federal Communications Commission DA 09-50