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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
R. J.' S LATE NIGHT ) EB-01-IH-0003-KMS
ENTERTAINMENT ) Facility #54428
CORPORATION )
)
Licensee of Noncommercial )
Educational Station WHPR-FM,
Highland Park, Michigan
MEMORANDUM OPINION AND ORDER
Adopted: June 13, 2001 Released: June
14, 2001
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Order, we admonish R. J.' s Late Night
Entertainment Corporation (``Late Night''), licensee of
noncommercial educational station WHPR-FM, Highland Park,
Michigan, for broadcasting advertisements in violation of
Section 399B of the Communications Act of 1934, as amended
(``the Act''), 47 U.S.C. §399b, and Section 73.503 of the
Commission's rules, 47 C.F.R. §73.503.1 Late Night
responded to our January 19, 2001, inquiry by submission
dated February 8, 2001. We have carefully reviewed the
record, including Late Night's response, and conclude that
the licensee has violated the pertinent statutory and
Commission underwriting rule provisions. While we believe
that no monetary sanction is warranted at this time, we find
that an admonishment is necessary to redress the statutory
and rule violations. Moreover, we believe that it is
appropriate to specifically advise Late Night of our
concerns so that rule compliance may be fully achieved.
II. Background
2. 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. 47 U.S.C. §399b(a). As noted above,
noncommercial educational stations may not broadcast
advertisements. Although contributors of funds to
noncommercial 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 business.
3. The Commission noted that it may be difficult at
times for licensees to distinguish between language that
promotes versus that which merely identifies the
underwriter, but expects that licensees exercise
``reasonable, good faith judgment'' in this area. See
Xavier University, 5 FCC Rcd 4920 (1990); Public Notice, "In
the Matter of the Commission Policy Concerning the
Noncommercial Nature of Educational Broadcasting Stations,"
(April 11, 1986), republished, 7 FCC Rcd 827 (1992). As the
Commission made clear in Xavier, it will not deem
announcements impermissible where the ``language at issue .
. . is not clearly promotional as opposed to identifying
and . . . the licensee exercised reasonable, good-faith
judgment regarding the language. . . .''
III. Discussion
4. The key facts in this case are not in dispute.
Late Night does not deny that the station broadcast the
sponsored announcements described in our letter of inquiry
and set forth in the attached transcript. Late Night also
admits that ``5 of the 6 announcements''2 appear to exceed
what is permissible under Section 399B of the Act , and the
pertinent Commission policies and rules, ``because these
acknowledgments go beyond pure identification and are
arguably promotional in nature.'' However, Late Night
argues that the ``inappropriate nature'' of the
announcements subject to our January 19, 2001, inquiry is
``very different from the inappropriate nature'' of those
subject to our earlier inquiry.3 Therefore, Late Night
contends that the station's broadcast of the later
announcements does not undermine the veracity of its
November 24, 2000, representation to the Commission that the
station's underwriting announcement practices have been
remedied.
5. Regarding the issue of penalty, Late Night argues
that the Commission should not impose a sanction for several
reasons. In this regard, it asks that we take into account
the fact that the station received no direct remuneration
for broadcast of the announcements contained in the
programming donated by ``The Thomas Pope Show'' and Dudley
Broadcasting Network, Inc. (``DBN''). Further, Late Night
asks that we consider the fact that it made a good-faith
effort to comply with our rules after our earlier inquiry
letter, but that during ``the remedial process commenced in
November [2000],'' it did not fully grasp the thorough
manner in which such announcements must be scrutinized in
order to ensure rule compliance. As a result of a recent
station policy change, Late Night claims that the station
has ``formally established a 3-member screening team'' to
ensure that the content of future underwriting announcements
is acceptable and compliant with the Commission's pertinent
rules and policies.
6. We agree that a monetary sanction is not necessary
to redress the statutory and rule violations at issue. This
disposition is based upon the fact that Late Night appears
to have taken further significant steps to ensure compliance
with our underwriting rules. However, certain aspects of
Late Night's response warrant further examination.
7. Specifically, we caution Late Night to observe
that, even in those instances where noncommercial licensees
do not receive direct payment from for-profit sponsors,
``consideration'' that renders the broadcast of such
underwriters' promotional announcements inappropriate may
nonetheless be present. In this connection,
``remuneration'' and ``consideration'' have been construed
to include various forms. See, e.g., Fuqua Communications,
Inc., 30 FCC 2d 94, 97 (1971); Window to the World
Communications, Inc., 12 FCC Rcd 20239, 20241 (MMB 1997),
affirmed in part, modified in part, 15 FCC Rcd 10025 (EB
2000). In the instant case, Late Night indicates that the
live-feed of ``The Tom Pope Show,'' received from DBN,
contained the prohibited announcements, and that DBN
supplied the program to its station free of charge. Thus,
the program itself appears to have been the
``consideration'' supporting the prohibited announcements'
broadcast. Consequently, in the future, Late Night should
observe that underwriting announcements accepted through a
``live-feed'' from a network programmer also warrant similar
textual scrutiny to those produced by the station itself.
Id.
8. Finally, contrary to Late Night's explanation, the
text of at least one of the current announcements undercuts
its earlier claim of good-faith rule compliance efforts. In
this regard, we note that the station's own internal policy
guide entitled ``Rules and Regulations WHPR 88.1 FM
Sponsored Programming,'' submitted to the Commission in its
November 24, 2000, response, contains as its first
underwriting announcement instruction the admonition that
``[t]here cannot be any mention of sale prices, percentages,
discounts, or bargains when advertising sponsors.'' Despite
the station's internal policy, it thereafter repeatedly
broadcast a State Farm Insurance announcement that conveyed,
in addition to its comparative and qualitative message,
obviously prohibited price information.4 As Late Night was
admittedly aware by virtue of its own submission, prohibited
price information includes not only specific price
information, but also sponsor discounts and products or
services offered by the sponsor at no cost or ``free.'' See
Xavier, supra. We caution Late Night to ensure in the
future not only that it has appropriate written policies in
place but also that station management and other relevant
employees fully understand and consistently apply the
policies.
IV. Ordering Clauses
9. In view of the foregoing, we conclude that a
sanction is appropriate. Accordingly, IT IS ORDERED that R.
J.'s Late Night Entertainment Corporation, licensee of
noncommercial educational station WHPR-FM, Highland Park,
Michigan, IS ADMONISHED for broadcasting advertisements in
violation of Section 399B of the Act, 47 U.S.C. §399B, and
Section 73.503 of the Commission's rules, 47 C.F.R. §73.503.
10. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent, by Certified
Mail -- Return Receipt Requested, to Rosalind M. Parker,
Esq., Counsel for R. J.'s Late Night Entertainment
Corporation, 1140 Connecticut Avenue, N.W., Suite 1142,
Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Attachment
ATTACHMENT
The following text was taken from a recording of
announcements aired by noncommercial educational station
WHPR-FM during the month of December 2000.
1. State Farm Insurance (35 seconds)
Today it seems everybody is offering a discount in car
insurance. But at what price? Reduced protection and
personal service? At State Farm, you can earn discounts and
still get full service and dependable protection. See State
Farm Agent George Warden in Southfield, for the State Farm
Multiple Lines Discount. With State Farm, you get an agent
you can depend on. See Sate Farm Agent George Warden at
24361 Greenfield or call 248-569-8555.
2. Aknartoons Fine Foods Eatery (60 seconds)
Aknartoons Fine Foods Eatery has the dinners you will always
enjoy. Aknartoons is located at 10300 Woodward Avenue at
Calvert. Open seven days a week from 11:00 a.m. until 12:00
Midnight. Come in and try our dinners, excellent sides and
delicious desserts. To order by phone, call 867-3102.
That's 867-3102. Aknartoons Fine Foods Eatery, located at
10300 Woodward Avenue at Calvert. Aknartoons has something
special for you every Thursday and Friday between the hours
of 6:00 p.m. and 8:00 p.m. At Aknartoons, there's live
entertainment with a band. Every Thursday and Friday from
6:00 p.m. until 8:00 p.m. Make sure you stop by to enjoy
good food, good music and good friends at Aknartoons.
Aknartoons Fine Foods Eatery.
3. Glory Foods (60 seconds; contained in live-feed from
``The Thomas Pope Show'')
[Lyrics sung to musical score]:
When you're in the mood for some home-cooked food with that
real good, feel-good, down-home taste, make it easy on
yourself -Get Glory Foods! Glory Foods -- Just about the
best!
Help yourself to some soulful greens; complement well with
candy sweets.
Top off that spread with delicious cornbread.
And you're talkin' about real good eatin'. . . .
Female Voice: ``This year add to the ummm ummm ummm
goodness of your holiday turkey or ham or just about any
main dish with Glory Foods. From seasoned greens to black-
eyed peas, Glory Foods are easy to prepare. So you spend
more time with your family. Of course, nothing can replace
the tastes your family's come home to for years, but Glory
Foods is just about the best!''
[Lyrics sung to musical score]:
When you're in the mood for some home-cooked food with that
real good, feel-good, down-home taste, make it easy on
yourself -Get Glory Foods! Glory Foods -- Just about the
best!
Narrator: Available at your local supermarket.
4. Wittnauer Watches (60 seconds; contained in live-feed
from ``The Thomas Pope Show'')
[Announcement spoken over musical background.]
Male Voice: ``I hear you're looking for a watch.''
Female Voice: ``I want a Wittnauer.''
Male Voice: ``Of course you want a watch with great
looks.''
Female Voice: ``I want a Wittnauer.''
Male Voice: ``May I show you another. . . .?''
Female Voice: ``I want a Wittnauer.''
Male Voice: ``Over here we have an entire showcase filled
with. . . . .''
Female Voice: ``I want a Wittnauer.''
Narrator: ``Wittnauer Watches. Whether you want to dress
up or dress down. Wittnauer Watch style is just what you
want. Wittnauer Watches with Swiss Quartz accuracy.''
Male Voice: ``Ma'am, is there any. . . .''
Female Voice: ``I want a Wittnauer.''
Male Voice: ``I know; I know. . . .''
Chorus: ``I want a Wittnauer.''
Narrator: ``You want the right watch, you want a Wittnauer.
Wittnauer Watches, products of Wittnauer International.''
Female Voice: ``I want a Wittnauer!''
Narrator: `` Wittnauer Watches. Fine jewelry, of course.''
Company Spokesman: ``Hi, I'm Charles D. Watkins, Vice
Chairman of The Wittnauer Watch Company. Please call this
toll-free number for the authorized Wittnauer Jeweler
nearest you, at 1-888-367-9488 or 1-888-FORWITT.''
5. Rosemond Chiropractic (75 seconds; contained in live-
feed from ``The Thomas Pope Show'')
Pain is you body's way of saying something is wrong. Early
history speaks of the relief of ``the laying on of hands.''
Today this technique is manifest in the field of
chiropractic. Dr. Luther P. Rosemond is the modern-day
drugless physician. If you are experiencing pain as the
result of a personal injury, auto accident, or job-related
injury, let Dr. Rosemond show you how chiropractic
techniques can restore and maintain your good health without
the use of mind-dulling drugs. Dr. Luther P. Rosemond will
teach you how to use your body's natural maintenance system
to keep it functioning in peak condition. And if you really
want to give your stress a rest, contact Barbara Rosemond, a
licensed massage-therapist, for relaxing and therapeutic
massage. Call 313-837-9355, that's 313-837-WELL. Dr.
Rosemond is located at 17701 Schoolcraft. . . .
_________________________
1 Our January 19, 2001, inquiry followed an earlier December
4, 2000, letter cautioning Late Night to comply with the
pertinent Commission rules and policies regarding
noncommercial underwriting messages.
2 Late Night claims that The Cotillion Club Banquet Center
is a not-for-profit entity and that it is therefore
permissible for a noncommercial station to broadcast
promotional underwriting announcements on its behalf. We
agree.
3 Late Night refers to our letter of inquiry dated November
6, 2000.
4 The text of that announcement reads as follows: ``Today
it seems everybody is offering a discount in car insurance.
But at what price? Reduced protection and personal service?
At State Farm, you can earn discounts and still get full
service and dependable protection. . . .''