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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
TRI-STATE INSPIRATIONAL ) EB-01-IH-0332-KMS
BROADCASTING CORPORATION ) Facility #67799
)
Licensee of Noncommercial )
Educational Station WFIX(FM), )
Florence, Alabama
MEMORANDUM OPINION AND ORDER
Adopted: September 17, 2001 Released:
September 18, 2001
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Order, we admonish Tri-State Inspirational
Broadcasting Corporation (``Tri-State''), licensee of
noncommercial educational station WFIX(FM), Florence,
Alabama, 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. Tri-State responded
to our May 16, 2001, and June 13, 2001, inquiries by
submission dated June 25, 2001. We have carefully reviewed
the record, including Tri-State'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 Tri-State 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.
Tri-State does not deny that the station broadcast the
sponsored announcements described in our letter of inquiry
and set forth in the attached transcript. Tri-State argues,
however, that the announcements comply with Section 399B of
the Act , and the pertinent Commission policies and rules,
noting that ``at the time [of their broadcast] we felt we
were well within our bounds, and that our announcements were
fully permissible.'' Tri-State admits, however, that its
management is relatively inexperienced in noncommercial
broadcast and that it has found interpreting the
Commission's underwriting announcement policy to be
difficult, often requiring it to consult with other more
seasoned noncommercial broadcasters. Since taking control
of the licensee's board in September 2000, Tri-State's
management contends that it has developed ``newly revised''
control procedures aimed at ensuring Commission underwriting
rule compliance.
5. We find that the subject underwriting
announcements exceed the bounds of what is permissible under
Section 399B of the Act, and the Commission's pertinent
rules and policies, in light of the ``good-faith''
discretion afforded licensees under Xavier, supra.
Notwithstanding this finding, we believe that a monetary
sanction is not necessary to redress the statutory and rule
violations at issue. This disposition is based to a
significant degree upon the fact that Tri-State's board is
new and has taken steps to ensure compliance with our
underwriting rules. However, certain aspects of Tri-State's
response warrant further examination.
6. Specifically, we caution Tri-State that references
that distinguish the underwriter from its competitors are
prohibited. See Public Notice, supra. Thus, the mention of
a sponsoring retail jeweler's getting its gemstones directly
from the diamond cutter distinguishes the jeweler from those
who do not. Such references are thus promotional and should
be avoided.1 Similarly, the station's characterization of
an underwriter's inventory as ``name-brand'' seeks to cast
its products in a favorable light and is not value-neutral.2
Id. Also, underwriting announcements may not make
descriptive, qualitative references that intend to induce
patronage of their underwriters' businesses. Id.; see also
In re WJTA(FM), 5 FCC Rcd 7106 (MMB 1990). Thus, Tri-
State's explanation that several of the station's
announcements attempt to ``conjure up feelings that we could
all identify with'' essentially reveals that their intent is
to distinguish and promote their respective underwriters'
products or services in the minds of listeners.3 Moreover,
even where statements made about an underwriter are
factually true, they are not permissible if they are also
promotional. See Letter from the Chief, Investigations and
Hearings Division, Enforcement Bureau, to Station KOUZ(FM),
(July 12, 2000) (use of the phrase ``ICAR gold-class
certification'' to describe underwriter's service
qualifications was found impermissible). Thus, the
station's references to an underwriter's having ``kept up
with [changing] technology'' or a ``new Sentricon Baiting
System'' are prohibited.4 Additionally, the station's
description of an underwriter's service as being
``convenient'' is qualitative and prohibited.5 See Letter
from the Chief, Investigations and Hearings Division,
Enforcement Bureau, to Station WLRY(FM), (April 5, 2000)
(where description of underwriting pharmacy as ``provid[ing]
the same service as the major chains without the long wait''
was found impermissible).
7. Finally, we note that several of the announcements
in question were over 30 seconds in length. While the
Commission has not adopted quantitative limitations on
announcements, it has noted that the longer they take to
identify their underwriters, the more likely they are to be
found promotional. See In re WNYE-TV, 7 FCC Rcd 6864, 6865
(MMB 1992). In the instant case, it appears that the
excessive length of several of the announcements contribute
to their overall promotional nature.
IV. Ordering Clauses
8. In view of the foregoing, we conclude that a
sanction is appropriate. Accordingly, IT IS ORDERED that
Tri-State Inspirational Broadcasting Corporation, licensee
of noncommercial educational station WFIX(FM), Florence,
Alabama, 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.
9. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent, by Certified
Mail -- Return Receipt Requested, to Tri-State Inspirational
Broadcasting Corporation, 113 N. Seminary Road, Florence,
Alabama, 35630.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Attachment
ATTACHMENT
The following text was transcribed from audiotape
recordings of underwriting announcements broadcast on
WFIX(FM), Florence, AL, during the period October 2000
through March 2001:
1. Osborne's Jewelers (30 seconds).
The Antwerp diamond dealers usually deal only with America's
largest importers. At Osborne Jewelers, as a member of the
IJO, they acquire diamonds directly from the diamond cutter
in Antwerp, eliminating the importer and distributor.
Antwerp means a diamond directly from the diamond's source.
Osborne Jewelers of Florence and Athens, with diamonds
directly from Antwerp. Osborne Jewelers, on Jefferson
Street in Athens, and Cox Creek Parkway in Florence.
2. The Sound Shoppe (30 seconds).
The Sound Shoppe in the Shoals-area has name-brand musical
instruments and sound equipment. Brand-name guitars like
Gibson, Takoma, and a brand-new truckload of Epiphones.
Drums from Sonar and digital pianos, amps, accessories and
much, much more! Lessons available, too. Darrell Trippet
and the staff at the Sound Shop proudly service anything
they sell. The Sound Shoppe, Parkway Shopping Center, in
Florence.
3. Osborne's Jewelers (45 seconds).
Our jewelers can tell that there's a problem before she ever
says a word. They see it all over her face. They
instinctively know what the problem is. A nice lady comes
in, and has just had her once-in-a-lifetime experience of
being proposed to. She's very happy about that although
she's not thrilled by her engagement ring. The ring she's
going to wear for the rest of her life. Osborne's pleas
with all the guys out there -- please don't let this be you!
Osborne Jewelers has diamond engagement rings that words
cannot describe. Osborne Jewelers on Jefferson Street in
Athens, and now on Cox Creek Parkway.
4. Gilbert Furniture (30 seconds).
Don't you love meeting new, friendly faces in warm, friendly
places? Gilbert Furniture. Don't you love furnishing your
home nice and cozy for the holiday season? Gilbert
Furniture. Don't you love solid-wood bedroom suites by
Orleans? And Chippendale dining-room suites? Everyone
loves Queen Anne living-room suites with matching lamps,
curios, and end tables. Gilbert Furniture. Gilbert
Furniture has all of this, plus leather, three-piece sets,
five-piece small dinettes and much more! Gilbert Furniture,
next to Southern BBQ on Wilson Dam Road.
5. Cedar Gables (30 seconds).
Do you like Waterford Crystal, Linden Clocks, Fitz & Floyd,
Arthur Court, Seraphim Classics, Austin, and many others?
Cedar Gables. Do you like surprises? Like being able to
buy a gift or decorative piece for your home that you never
dreamed would fit into your budget? Cedar Gables. On the
hill just outside of Killen off Highway 72. Where there are
many collectibles, gifts, and most importantly, pleasant
surprises.
6. Osborne's Jewelers (45 seconds).
Because the first snow of the holiday season makes her pulse
quicken and her cheeks flush. Because she doesn't feel it's
Christmas without a mile of colored lights or the scent of
pine mixing with gingerbread. Diamonds for Christmas.
Because she doesn't have the heart to tell a little boy that
Santa's helpers aren't truly elves, or a little girl that it
forgot to snow. Soon it will be Christmas morning, and all
she's expecting is trinkets under the tree. Diamonds: just
because you love her. Osborne Jewelers on Cox Creek Parkway
in Florence, and in Athens on Jefferson Street.
7. Chic-Fil-A (55 seconds).
Male Voice: ``Hey honey, what are you doing?''
Female Voice: ``I'm making a guest list for our party.''
Male Voice: ``Oh. Who's invited?''
Female Voice: ``Well, I thought we'd ask the Johnsons.''
Male Voice: ``Arrrgh. The Johnsons!''
Female Voice: ``The Burkes.''
Male Voice: ``Not the Burkes!''
Female Voice: ``And the Smiths.''
Male Voice: ``Oh, great!''
Female Voice: ``The Fitz-Hughs.''
Male Voice: ``What is this, a wake?''
Female Voice: ``The Everetts.''
Male Voice: ``Hide the jewelry!''
Female Voice: ``The Bakers.''
Male Voice: ``Make it stop!''
Female Voice: ``And the Bovines.''
Male Voice: ``Really? The Bovines?''
Female Voice: ``The Bovines.''
Male Voice: ``As in -`he smells like a barn and she chews
with her mouth wide open?' Those Bovines?''
Female Voice: ``They're the ones.''
Male Voice: ``Are they bringing those Chic-Fil-A Party
Platters with them?''
Female Voice: ``Yes, they are: chicken nuggets, chicken
strips and even chicken salad finger sandwiches.''
Male Voice: ``I got no beef with them.''
Later at the Party:
Host's Voice: ``Great party, huh?''
Guest's Voice: ``M--OOO!''
Narrator: ``Party Trays from Chic-Fil-A. We didn't invent
the chicken, just the chicken sandwich.''
8. Heil Heating and Cooling (30 seconds).
Offering heating and cooling products for over 100 years.
Technology changes rapidly and Heil Heating and Cooling has
kept up with technology! Their units, offering up to 13 CR
means comfort and energy efficiency for your home or office.
The Heil Dealer nearest you is listed in the Yellow Pages.
Heil Heating and Cooling, supporters of the New FIX 91.3.
9. Southern Services Pest Control (30 seconds).
So that nothing can cause damage to your valuable home or
property, Southern Services Pest Control offers service for
all types of homes, businesses, restaurants, hotels,
churches, anywhere pests are a problem. Southern Services
Pest Control . . . features the new Sentricon Baiting System
that eliminates termite colonies. Call Southern Services
Pest Control to find out how they can help you with a free
quote. Southern Services Pest Control, at 764-3121 . . .
.
10. Williams Cleaners (30 seconds).
There's a new name in the dry-cleaning industry in the
Shoals - Williams Cleaners. Mike Williams and his staff at
Williams Cleaners offers same-day service! With a
convenient drive-through window. On Avalon Avenue in Muscle
Shoals, you don't even have to leave your car. Williams
Cleaners does laundry service, alterations, leather
cleaning. And don't forget: same-day service! When you
need it fast, let Williams Cleaners help you! Williams
Cleaners, with two locations . . . .
_________________________
1 See attached announcements for Osborne's Jewelers.
2 See attached announcement for The Sound Shoppe.
3 See attached announcements for Osborne's Jewelers, Gilbert
Furniture, Cedar Gables, and Chic-Fil-A.
4 See attached announcements for Heil Heating and Cooling
and Southern Services Pest Control.
5 See attached announcement for Williams Cleaners.