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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
ISOTHERMAL COMMUNITY ) EB-00-IH-0414
COLLEGE ) EB-00-IH-0504
) Facility #29262
Licensee of Noncommercial )
Educational Station WNCW(FM), )
Spindale, North Carolina
MEMORANDUM OPINION AND ORDER
Adopted: December 5, 2001
Released: December 6, 2001
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Order, we admonish Isothermal Community
College (``Isothermal''), licensee of noncommercial
educational station WNCW(FM), Spindale, North Carolina, 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, and for failing to properly maintain its
public file in violation of Section 73.3527 of the
Commission's rules, 47 C.F.R. §73.3527.
2. We have carefully reviewed the record, including
the complaints and Isothermal's responses, and conclude that
the licensee has violated the pertinent statutory and
Commission underwriting rule provisions, as well as the
public file rule. 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 Isothermal of our concerns so that rule
compliance may be fully achieved.
II. Background
3. In response to an initial complaint filed December
12, 2000, by station listener Bill Bost, we investigated
Isothermal's broadcast of announcements regarding ``The WNCW
Mountain Oasis Music Festival,'' a local concert event which
was conducted by a for-profit enterprise, A.C. Entertainment
of Knoxville (``ACE''), as well as questions concerning the
station's maintenance of its public file.1 Isothermal
responded to our January 26, 2001, and March 30, 2001,
inquiries by submissions dated February 15, 2001 and April
19, 2001. After having received a further public file
complaint submitted August 15, 2001, by Ted Bost, we
inquired by letter of August 20, 2001, to which Isothermal
responded by letter dated September 6, 2001.
III. Discussion
4. Underwriting Announcements. 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); 47 C.F.R. §73.503. 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. 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).
5. As noted above, under Section 399B of the Act,
noncommercial broadcasters are generally prohibited from
broadcasting messages that promote the products, services or
businesses of for?profit entities, if made in exchange for
remuneration. However, where "economic consideration" is
not the basis for the broadcast of particular announcements,
noncommercial stations may broadcast messages promoting
local "transitory events," such as movies, plays, concerts,
etc., including ticket prices and information, so that
listeners may be informed as to local happenings. In this
case, complainant Bill Bost claims that the station
broadcast announcements in October, 2000, promoting a for-
profit concert event, ``The WNCW Mountain Oasis Music
Festival,'' transcripts of which are attached. Mr. Bost
contends that the music festival was not the station's own
event, but was jointly sponsored with ACE, and thus served
to impermissibly benefit a for-profit entity.
6. Isothermal does not deny that it broadcast the
announcements in question, but argues that their broadcast
did not violate Section 399B of the Act. In this regard,
the licensee contends that the announcements were aired to
publicize ``The WNCW Mountain Oasis Music Festival''
consistent with its discretion under Commission precedent to
promote local ``transitory events'' in the station's
community. Isothermal represents that ACE produced the
festival and realized all of its financial proceeds, and
that the station lent its name, or ``sponsored'' the
festival, and received event tickets and publicity in
exchange for that and for airing promotional announcements.2
Isothermal argues that the announcements were permissible
because the event tickets it received did not constitute
cognizable remuneration and because it did not receive any
of the proceeds resulting from the music festival.
Isothermal describes ACE as a ``long-time supporter'' of the
station, and emphasizes that ACE's ``role as an underwriter
was entirely separate and apart from its role as a
producer'' of the music festival. Isothermal claims that
the purpose for its ``sponsorship and promotion of the WNCW
Festival was the ability to promote the value of membership
in Station WNCW and to encourage listeners to become
members,'' and is consistent with the type of ``creative
fundraising'' encouraged by the Commission in Chicago
Educational Television Association (WTTW(TV)) (MMB October
23, 1995).
7. We reject Isothermal's contention that the
broadcast of the instant announcements was consistent with
the Commission's ``transitory event'' exception. In the
Memorandum Opinion and Order, ``In the Matter of Commission
Policy Concerning the Noncommercial Nature of Educational
Broadcast Stations,'' 90 FCC 2d 895, 911 (1982), the
Commission specifically warned licensees that ``a public
broadcaster's decision to promote third parties must be
based on public-spirited determinations rather than economic
considerations.'' In this case, the licensee admits that it
received ``event tickets'' in specific exchange for
broadcasting announcements promoting a music festival that
directly benefited ACE, a for-profit entity, and that they
were not given as general underwriting support.3
8. Isothermal seems also to imply that the tickets
were not ``consideration received'' by the station because
they were thereafter used as donor premiums or listener
giveaway prizes and not retained. However, it ignores that
``remuneration'' and ``consideration'' have been construed
to include various forms. See, e.g., Fuqua Communications,
Inc., 30 FCC 2d 94, 97 (1971) (consideration may be found
where ``trade-out'' or barter are exchanged); 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) (consideration may be found where the programming
itself is provided freely or at reduced cost). Thus, to the
extent that Isothermal argues that it received no
remuneration for broadcasting the music festival
announcements, its acceptance of event tickets that were
later used as promotional giveaways and donor premiums
belies that claim.
9. Moreover, even if Isothermal had not received
tangible consideration in the form of event tickets from ACE
in exchange for making the broadcast announcements in which
that business was promoted, we could not ignore that the
announcements themselves appeared to support the station's
self-interest by identifying the event as the ``The WNCW
Mountain Oasis Music Festival.'' Thus, the station clearly
anticipated increased membership, and enhanced economic
benefit, as a result of its broadcast promotion of the music
festival directly benefiting a for-profit entity, ACE.
Consistent with the Memorandum Opinion and Order, supra, we
do not believe that the ``transitory event'' exception was
intended to apply to announcements of this type, made out of
a station's self-interest rather than its ``public-spirited
determination.'' See also Letter of the Chief,
Investigations and Hearings Division to University of
Massachusetts (WFCR(FM)) (February 29, 2000).
10. Finally, we strongly disagree with Isothermal's
reliance on Chicago Educational Television Association
(WTTW(TV)), supra, to justify the promotional underwriting
announcements in this case. In Chicago, the Mass Media
Bureau criticized, but declined to punish, the conduct of a
joint-fundraising arrangement where the noncommercial
station split its fundraising proceeds with other area not-
for-profit institutions. As noted above, in this case the
licensee's promotion of the music festival at issue directly
benefited ACE, a for-profit entity, and the harm caused to
the noncommercial service was far more tangible.
Consequently, we find that Isothermal violated Section 399B
of the Act through airing the announcements in question.
11. Public Inspection File. In his December 12th
complaint, Bill Bost further alleged that the licensee
withheld certain documents he requested that relate to the
station's promotion of ``The Mountain Oasis Music
Festival,'' discussed above, and that it suddenly raised the
documents' copying cost without justification, in order to
discourage his investigation. Bill Bost claims that, during
his October 3, 2000, visit, the station's public file lacked
specific documents that are required to be contained therein
pursuant to Subsections 73.3527 (e)(4), (5), (6), (9), and
(10). In his August 15th complaint, Ted Bost alleged that
on August 10, 2001, WNCW(FM) staffers unreasonably delayed
his access to the station's public file.4 In sum, Messrs.
Bost charge that Isothermal violated Section 73.3527 of the
Commission's rules, and should be sanctioned accordingly.
12. In its February 15th and April 19th responses,
Isothermal admits only that it failed to include materials
in its public file relating to its quarterly issues/programs
and donors lists, as required by Subsections 73.3527(e)(8)
and (9) of the Commission's rules, but avers that it has
since taken remedial action. The licensee denies, however,
Bill Bost's allegation that it overcharged him for copying
services or that it discouraged his investigation.
Isothermal explains that the extensive nature of Bill Bost's
document production request, which appears to have sought
material beyond the scope of the station's public file
rule,5 required it to hire additional clerical help and
raise its per page copying fee from 10 to 25 cents.
Moreover, in its response to our subsequent August 30th
inquiry, Isothermal denies that it improperly delayed access
to Ted Bost when he requested to inspect the public file on
August 10, 2001. The licensee claims that due to Mr. Bost's
earlier threats of litigation and apparent antagonism toward
the staff, the station's managers feared that a safety issue
might arise during his visit. Isothermal represents that
the station's staff thus delayed Mr. Bost's access to the
public file approximately ten minutes while it sought
assistance from the university's legal counsel and security
department to monitor the visit. Isothermal argues that,
given the full circumstances of Mr. Bost's visit, such delay
was not unreasonable and was consistent with the intent of
Section 73.3527 of the Commission's rules.
13. Section 73.3527(a) of the Commission's rules
requires noncommercial broadcast licensees to maintain a
public file containing specific types of information related
to station operations.6 The purpose of this requirement is
to provide the public with timely information at regular
intervals throughout the license period, so that concerned
individuals or groups may participate effectively in
Commission proceedings concerning a broadcast licensee,
including the evaluation of its performance. See, e.g.,
Liability of KLDT-TV 55, Inc., 8 FCC Rcd 6316 (1993)
forfeiture reduced, 10 FCC Rcd 3198 (1995). The file must
be available to the public at any time during the licensee's
regular business hours. Id.; Public Notice, "Availability
of Locally Maintained Records for Inspection by Members of
the Public," 13 FCC Rcd 17959 (1998), citing WBRN, Inc., 32
FCC 2d 729 (1971); Morton L. Berfield, Esq., 71 RR 2d 142
(FOB 1992) (the file must be immediately available for
inspection by members of the public, not through
appointments or at times most convenient to the licensee).
Moreover, Section 73.3527(c) of the Commission's rules
requires that requests for copies of documents required to
be kept in the station's public file be fulfilled by the
licensee at a reasonable cost and within a reasonable period
of time, i.e., not more than seven days.
14. Isothermal admits that its station's public file
was deficient at the time of our January 26th inquiry with
respect to its quarterly issues/programs and donors lists,
contrary to the requirements of Subsections 73.3527(e)(8)
and (9) of the Commission's rules. The licensee avers that
it has since taken remedial action, and denies the
complainants' allegations that the public file was deficient
in other respects. In its response to our query, Isothermal
provides information indicating that the materials required
by the rule's other subsections are, in fact, included in
its public file and are current. We note that the
complainants have not provided any probative evidence to
rebut the licensee's account concerning that showing.
Moreover, we accept Isothermal's explanation that it raised
its copying fees reasonably in order to recoup its overall
copying costs, including clerical expense, in a manner
consistent with the Commission's public file rule.
15. Finally, while it is a matter of concern when we
receive a complaint that a licensee has delayed in
responding to a request to view its station's public file,
we recognize that noncommercial licensees that are also
educational institutions have legitimate security
considerations which may require them to take precautionary
steps that delay their visitors access to the stations'
files. See Letter from the Chief, Investigations and
Hearings Division, to Carmel/Clay School Corporation
(WHJE(FM)) (March 15, 2001). In this case, Ted Bost's delay
was fairly insubstantial, less than half and hour, and was
apparently caused by the licensee's apprehension that
security precautions were necessary. We have no reason to
question the licensee's judgment regarding that concern.
Consequently, we find that Isothermal violated Section
73.3527(e) (8) and (9) of the Commission's rules only and
find no merit to the complainants' further allegations
concerning this issue.
16. In view of the foregoing, we find that Isothermal
violated Section 399B of the Act, and Sections 73.503 and
73.3527 of the Commission's rules, respectively, by
broadcasting announcements promoting a for-profit entity and
for failing to maintain the station's public file. In light
of the station's otherwise unblemished prior enforcement
record, however, we find that a monetary sanction is not
warranted to redress this rule violation. See Note to
Section 1.80 (b)(4) of the Commission's rules.7 Instead, we
believe that an admonishment is appropriate under the
circumstances of this case.
IV. Ordering Clauses
17. In view of the foregoing, we conclude that a
sanction is appropriate. Accordingly, IT IS ORDERED that
Isothermal Community College, licensee of noncommercial
educational station WNCW(FM), Spindale, North Carolina, IS
ADMONISHED for broadcasting advertisements in violation of
Section 399B of the Act, 47 U.S.C. §399B, and Sections
73.503 and for failing to maintain properly its station's
public file in violation of 73.3527 of the Commission's
rules, 47 C.F.R. §§73.503 and 73.3527.
18. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent, by Certified
Mail -- Return Receipt Requested, to Robert Woods, Esq. and
Steven C. Schaffer, Esq., of Schwartz, Woods & Miller,
Counsel for Isothermal Community College, 1350 Connecticut
Avenue, N.W., Suite 300, Washington, D.C. 20036-1717.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Attachment
Promo # I
Between the traffic, the shopping malls and the bad music
videos does it ever feel like we're all just:
[MUSIC - Living in the wasteland of the free]
Maybe we all just need:
[MUSIC - more love]
And better music. WNCW's Mountain Oasis Music Festival is-an
escape from the ordinary with performances from Bela Fleck,
Iris DeMent, Tim O'Brien and Darrell Scott, Leftover Salmon,
Corey Harris, Robert Earl Keen, Southern Culture on the
Skids, Peter Rowan and Tony Rice, John Cowan and many more
including a second lakeside stage. The Weekend of October
6th, 7th, and 8th, it's the WNCW Mountain Oasis Music
Festival at Deerfields near Hendersonville, North Carolina.
Camping is also available and tickets are on sale now at
877-995-9961 and at concertwire.com. WNCW celebrating live
music with the people who love it.
[MUSIC - Way up on the hill where they do the boogie, do the
boogie, do the boogie, oh I wonder what they do when they do
the boogie ... do do do do do do ]
PROMO- Friday
WNCW's Mountain Oasis Music Festival will feature three days
of the music you heir and love on your favorite public radio
station. The Festival will take place Friday, Saturday, and
Sunday, October 6th, 7th , and 8th at Deerfields near
Hendersonville, North Carolina. Friday's lineup begins at 7
pm with the Donna the Buffalo, followed by David Gans, host
of the Grateful Dead Hour, and finishes up with the Dark
Star Orchestra. Wireless support and accessibility provided
by Verizon Wireless. Visit our website at WNCW.org for more
information or visit concertwire.com for tickets to WNCW's
Mountain Oasis Music Festival.
PROMO - Saturday
WNCW's Mountain Oasis Music Festival will feature three days
of the music you hear and love on your favorite public radio
station. The festival will take place Friday, Saturday and
Sunday, October 6't, 7th and 8th at Deerfields near
Hendersonville, North Carolina. Saturday's line-up begins
with Tim O'Brien and Darrell Scott, Iris DeMent, Corey
Harris and Dan Hicks and the Hot Licks. The music continues
into the evening with Southern Culture on the Skids, Robert
Earl Keen, Leftover Salmon and Bela Fleck and the
Flecktones. Visit our website at WNCW.org for more
information or visit concertwire.com for tickets to WNCW's
Mountain Oasis Music Festival.
_________________________
1 On September 18, 2001, Bill Bost further alleged that the
licensee wrongfully denied his station listener membership
renewal in reprisal for his complaint to the FCC. Their
dispute on this point appears to be a private matter. As
such, Mr. Bost's later complaint does not raise issues
within the scope of the licensee's public interest
obligations, and we will not address it.
2 See Isothermal's April 19, 2001 and February 15, 2001,
responses to the staff's letters of inquiry dated March 30,
2001 and January 26, 2001, respectively.
3 In its February 15, 2001, response, Isothermal indicates
that in exchange for its agreement to air the announcements
promoting the event:
``[t]he station received a donation of event tickets
for its fall fund drive (as it had for previous fund-
raising events). These tickets were used as station
premiums for fund-raising and as give-away items for
self-promotion purposes . . . . Announcements for the
event were included in WNCW's community concert
calendar, a determination made solely by the station.''
4 In his September 26th reply, Ted Bost indicated that he
was ``delayed 24 minutes'' in his attempt to view the public
file on August 10th. Although his complaint suggests he was
delayed or denied access to the station's public file on
July 2nd, in his reply he also acknowledged that he did not
actually request to view the file at that earlier time. Mr.
Bost indicates that he instead used that visit to seek
financial records pertaining to his state FOIA request.
5 According to the licensee, pursuant to a North Carolina
state Freedom of Information Act (``FOIA'') request, Ted
Bost also sought non-FCC regulated information relating to
the station's operations, including current and prior year
invoices and employee expense reports.
6 Among the items that are required to be contained in
the public file are: copies of all current FCC
authorizations and modifications thereto (47 C.F.R. §
73.3527(e)(1)); copies of the station's FCC applications (47
C.F.R. § 73.3527(e)(2)); the station's contour maps (47
C.F.R. § 73.3527(e)(3)); the station's annual ownership
reports and related materials (47 C.F.R. § 73.3527(e)(4));
such records as are required to be kept concerning
broadcasts by candidates for public office (47 C.F.R. §
73.3527(e)(5)); a copy of the manual entitled ``The Public
and Broadcasting'' (47 C.F.R. § 73.3527(e)(7)); a quarterly
list of programs that have provided the station's most
significant treatment of community issues (47 C.F.R. §
73.3527(e)(8)); a list of donors supporting specific
programs (47 C.F.R. § 73.3527(e)(9)); a statement certifying
that required local public notice announcements were made at
the time of both the pre-filing and post-filing of the
license renewal application, and the text of such
announcements (47 C.F.R. § 73.3527(e)(10)); material having
a substantial bearing on a matter which is the subject of an
FCC investigation or complaint to the FCC about which the
licensee has been advised (47 C.F.R. § 73.3527(e)(11)); and,
where applicable, ``must-carry'' requests (47 C.F.R. §
73.3527(e)(12)).
7
47 C.F.R.§ 1.80(b)(4).