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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
MINORITY TELEVISION PROJECT, ) EB-00-IH-0153
INC. ) EB-01-IH-0652
) NAL/Account No. 200232080020
) Facility #43095
Licensee of Noncommercial ) FRN #0005704366
Educational Television Station
KMTP-TV, San Francisco,
California
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 7, 2002 Released:
August 9, 2002
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Minority Television
Project, Inc. (``Minority''), licensee of noncommercial
educational television station KMTP-TV, San Francisco,
California, apparently violated Section 399B of the
Communications Act of 1934, as amended (``the Act''), 47
U.S.C. § 399b, and Section 73.621 of the Commission's rules,
47 C.F.R. § 73.621, by willfully and repeatedly broadcasting
advertisements. Based on our review of the facts and
circumstances of this case, we conclude that Minority is
apparently liable for a monetary forfeiture in the amount of
Ten Thousand Dollars ($10,000.00).
II. Background
2. This case arises from allegations raised in a
pending Media Bureau (``MB'') proceeding, and referred to
the Enforcement Bureau for resolution. In the MB
proceeding, Minority submitted a Petition for Declaratory
Ruling, on June 13, 2000, which sought Commission approval
of numerous underwriting announcements the station has
broadcast, arguing that the announcements comply with the
pertinent statutory and Commission rule provisions that
prohibit the broadcast of commercial messages on
noncommercial educational stations. In response, AT&T
Broadband, LLC (``AT&T''), operator of cable systems in the
San Francisco market, and Lincoln Broadcasting Company
(``Lincoln''), licensee of commercial television station
KTSF(TV), Brisbane, California, opposed Minority's request,
and complained that KMTP-TV has continuously broadcast
prohibited underwriting announcements since June 1999. By
letters dated November 9, 2001, and February 25, 2002, we
inquired of the licensee.
3. 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.
4. Specifically, such announcements may not contain
comparative or qualitative descriptions, price information,
calls to action, or inducements to buy, sell, rent or lease.
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''). 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
only that licensees exercise reasonable, good-faith judgment
in this area. See Xavier University, 5 FCC Rcd 4920 (1990).
III. Discussion
5. Preliminary Matters. At issue are approximately
twenty underwriting announcements from eighteen entities
admittedly broadcast by the station approximately 1,900
times since June 1999, that appear to have been in exchange
for consideration, and on behalf of for-profit sponsors.1
Minority argues that the foregoing announcements comply with
Section 399B of the Act, the pertinent Commission policies
and rules, and are consistent with its ``good faith''
discretion under Xavier. Minority contends that, as a
foreign-language programmer, it faces a daunting challenge
in attempting to fashion underwriting acknowledgments that
identify but do not promote the messages' sponsors.
Minority notes that many of the announcements at issue are
broadcast in Asian languages, Vietnamese, Mandarin,
Filipino, or Korean, and argues that those languages do not
always yield precise cross-cultural verbal equivalencies in
English.2
6. Minority contends that other federal agencies,
consistent with U.S. policies supporting multiculturalism,
have, in federal legal settings, accepted ``dynamic
equivalencies'' in lieu of word-for-word renditions.3
Minority explains that ``dynamic equivalencies'' emphasize
the speaker's intent over translation errors and misused
words, and argues that its own in-house interpreters have
correctly followed this approach in fashioning the station's
underwriting announcements, consistent with the aims of the
federal Court Interpreters' Act, 28 U.S.C. § 1827(b); 28
U.S.C. § 604(a).4 The licensee contends also that certain
phrases it utilizes are harmless adjective-noun combinations
that do not promote, but instead denote, without value,
discrete categories of products or services like the ``fine
dining'' example the Commission found permissible in Xavier.
AT&T and Lincoln disagree, arguing that Minority's
interpretation of the Xavier case's ``good faith''
discretion standard is overbroad by elevating the
broadcaster's subjective intent over the commonly understood
meaning that listeners ascribe to everyday phrases. The
complainants argue that accepting Minority's theory would
essentially nullify the statutory proscription of Section
399B of the Act and thus that theory is invalid.
7. The Commission has long warned that foreign-
language programmers must take care to ensure that their
programming material is consistent with the pertinent
statutes and Commission rules and policies concerning
underwriting. See Commission Policy Concerning the
Noncommercial Nature of Educational Broadcast Stations, 90
FCC 2d 895 (1982), recon., 97 FCC 2d 255 (1984) (``Policy
Statement''); Public Notice, supra. Minority argues that
its translations are acceptable and that the announcements
comply with Commission underwriting policy and precedent,5
even though its translations may be at odds with those
provided by the complainants. Minority argues that we
should accept its translations as accurate because they were
prepared by trained linguists with superior qualifications,
and with due regard for overall federal policy concerning
multiculturalism and the special demands of foreign-language
translation.6 Minority further asserts that we should
accept its translations as evidence that the announcements
comply with Section 399B of the Act because the translations
were prepared in the exercise of the licensee's good faith
discretion under Xavier.
8. We note that the linguists presented by both sides
appear to be highly qualified. Although we do not accept
all of Minority's arguments, a key factor warrants crediting
its translations over those of the complainants. That is,
consistent with Xavier, licensees have good faith discretion
in preparing their underwriting announcements. In the case
of foreign-language announcements, we believe a licensee's
use of translations of underwriting announcements prepared
by linguists who are sensitive to the native speaker's
intent, as Minority has done, supports their reliability.7
9. While we recognize that foreign languages may pose
special translation difficulties, we find that the foregoing
announcements, based on Minority's own translations,
nevertheless appear to exceed the bounds of what is
permissible under Section 399B of the Act, and the
Commission's pertinent rules and policies, taking into
account the ``good-faith'' discretion afforded licensees
under Xavier, supra. We find they do not appear to be
reasonably intended to connote value-neutral meanings
concerning the underwriters' products or services. In this
regard, we note that the announcements at issue contain not
only textual but visual elements that need no translation.
The combined text and images must be evaluated, in the full
context presented, in order to ascertain the messages'
overall meaning and reasonable objective intent. See In re
Window to the World Communications, Inc. (WTTW(TV)), DA 97-
2535 (MMB December 3, 1997), forfeiture reduced, 15 FCC Rcd
10025 (EB 2000). We find that the subject underwriting
messages, viewed in their totality, appear promotional in
nature and thus appear to constitute prohibited
advertisements.
10. English-Language Announcements. We will first
address the several announcements that were broadcast
aurally in English or contained English-language video
messages; namely, those on behalf of State Farm, U-tron
Computers, and Caliber Dual Monitor Computers. The State
Farm announcement visually depicts the aftermath of a home
ruined by fire. The narrator intones: ``[f]ortunately, they
have a State Farm agent, and the help of the world's largest
claims network. And no one has more experts handling more
claims quickly and more fairly. That's our `Good Neighbor'
promise.'' The visual element concludes with the image of
happy family members apparently restored to their repaired
home. Similarly, the U-tron Computers' announcement
verbally describes its sponsor as ``offering distinctive
computer products'' while visually depicting its product, a
computer set, through flashing graphics containing the terms
``high-end'' and ``heavyweight.''
11. Minority acknowledges that the State Farm and U-
tron announcements should not have been aired because they
contain promotional language. Minority argues, however,
that we should find mitigating the fact that their broadcast
was inadvertent,8 and in the case of the State Farm
announcement, find that the broadcast did not violate
Section 399B of the Act because it was mere program
``filler,'' and not specifically supported by quid pro quo
consideration. Taking into account the licensee's
discretion under Xavier, supra, we find that Minority's
broadcast of both the State Farm and U-tron announcements
appears to exceed the bounds of what is permissible under
the Act, and appears to violate our underwriting rules.
12. In addition, Minority's further arguments have
been specifically rejected in previous cases.
``Consideration,'' for purposes of Section 399B of the Act,
may consist of the program material itself. See Policy
Statement, supra, 90 FCC 2d at 911; Window to the World
Communications, Inc., supra. Thus, even if the program
material were un-sponsored ``filler,'' that fact has no
bearing on the question of its compliance with Section 399B
of the Act. Moreover, even if Minority's airing of the
State Farm and U-tron announcements were through
inadvertence, and not intention, that does not excuse
Minority's rule violation. See In re Rego, Inc. (WGEZ(AM)),
16 FCC Rcd 16795 (EB 2001), citing Gaffney Broadcasting,
Inc., 23 FCC 2d 912, 913 (1970).
13. The underwriting announcement for Caliber is also
broadcast in English and visually depicts costumed
characters dancing across its product's dual computer
screens. The accompanying narrative describes the computer
as featuring ``revolutionary dual display functions'' and
advises viewers that they will ``see more, get more'' with
it, while the graphic message urges them not to ``miss a
thing'' and presumably make a purchase. Minority contends
that the message merely identifies the sponsor and describes
the product. While announcements may identify underwriters
and their products, they may not promote. In this case, the
message makes descriptive, qualitative references that
appear impermissibly to promote the underwriter's product
and otherwise invites patronage of the sponsor's business.
See Public Notice, supra; Kosciusko Educational Broadcasting
Foundation (WJTA(FM)), 5 FCC Rcd 7106 (MMB 1990).
14. Foreign-Language Announcements. The underwriting
announcements made on behalf of Gingko-Biloba Tea, Call-One
Global Air Cellular Telephone, Chevy Venture, Chevy Impala,
Cadillac Escalade, Ford Windstar, Ford Explorer and
Expedition, Ford Motor Company, Korean Airlines, and Asiana
Airlines were broadcast in Asian languages and appear
similar in many salient respects. Generally speaking, they
depict the underwriters' products or services being used and
enjoyed by customers or heavily dwell on their particular
features and qualities. Minority argues that the messages
are merely value-neutral ``image announcements'' broadcast
in good faith, consistent with Commission policy and
precedent, and that they do not promote.
15. We disagree, and find that the foregoing
announcements, with the exception of the Call One Global
Cellular Telephone and generic Ford Motor Company messages,
9 viewed in their entirety, are promotional in nature.
First, the announcements heavily dwell on their
underwriters' products or services at length, both visually
and textually, focusing on their salutary qualities, and
feature their customers' approving responses. See Board of
Education of New York (WNYE-TV), 7 FCC Rcd 6864 (MMB 1992)
(where announcement emphasized in imagery, the
demonstration, use, consumption, and customers' apparent
satisfaction with the underwriter's products, the message
was found to be qualitative and promotional).
16. Minority contends further that the Cadillac
Escalade and Asiana Airlines announcements, although
utilizing seemingly qualitative or price-referent phrases
such as ``highly regarded product,'' ``quality SUV,'' ``best
level,'' and ``free travel,'' respectively, do not, in their
native tongue, convey promotional meanings, but, instead
denote categorical and value-neutral expressions. We
reject these arguments. While we acknowledge that
categorical identifiers are not necessarily promotional, the
Cadillac Escalade announcement, in its full context, belies
Minority's claim that mere product-identification is taking
place. In this regard, the announcement dwells on images of
the SUV automobile in use, focusing on its special
navigation and entertainment features.
17. Furthermore, contrary to Minority's contention,
its own Korean-English translation describes the Cadillac
Escalade's navigation feature in a comparative manner.
Thus, although Minority argues that the adjective-noun
combination ``quality SUV,'' standing alone, denotes a
categorical and value-neutral designation, the actual phrase
at issue is not expressed so narrowly. In this case, by
distinguishing the automobile as ``the only quality SUV with
On Star,'' the announcement goes beyond categorization, by
focusing on the vehicle's select and favorable standing
among competing vehicles by virtue of its unique
equipment.10 Where the term ``only'' has been used to
suggest a product's unique quality or attribute, it has been
found to be promotional. See Agape Broadcasting Foundation
(KNON-FM), 13 FCC Rcd 13154 (MMB 1998).
18. Similarly, we reject Minority's argument that the
Asiana Airlines announcement makes value-neutral references
to the underwriter's bonus mileage plan. The visual aspect
of the announcement depicts two characters discussing their
airline tickets. Minority provides the following
translation11:
Female Character: ``Did you get the surprising
news Asiana Airlines sent to you? Now you can get
American Airline [sic] free tickets using Asiana
mileage.''
Male Character: ``Asiana Air now combines mileage
with American Airlines.''
Female Character: ``Now you can travel free to
America, Central or South America and even
Europe¾to 270 cities around [sic] world earning
mileage with Asiana Airlines. Although you travel
with Asiana Airlines or with American Airlines.''
Male Character: ``Now where do you want to go?''
Female Character: ``Well . . . . (laughter).''
Male Character: ``Mileage benefits with the best
airline in the world. Asiana Airlines.''
19. Minority contends that, in this announcement, the
characters neutrally discuss the airline's bonus mileage
plan and how viewers may qualify for ``the opportunity for
free travel.'' Minority argues that Asiana's reference to
its mileage plan is not promotional, and that the
Commission's proscription on the use of pricing information
is not applicable because it does not extend to terms used,
as here, to convey ``free,'' ``zero,'' or ``value-less''
information, only price-specific information. Minority also
likens the context of this announcement to that of the
mention of toll-free ``800'' telephone numbers, and argues
that ``value is not attached to [such] calls.''
20. These arguments are without merit. First, the
Commission has specifically found references to ``free''
products or services to be prohibited language of
inducement. See Public Notice, supra.12 Secondly, we do
not agree that the reference to Asiana's bonus mileage plan
is, in this instance, value-neutral. The announcement
dwells singularly on a discussion of the underwriter's
business marketing program that offers purchase enhancements
to potential customers, and also refers to it as the ``best
airline in the world.'' As such, the presentation attempts
to induce business patronage, and to present the underwriter
in comparative and qualitative terms. It is thus
prohibited. See id. Also, we note that Minority's argument
concerning broadcast invitations to utilize underwriter's
toll-free telephone numbers is inapposite. Moreover,
Minority cites no authority supporting its proposition that
the noncommercial broadcast encouragement to contact an
underwriter through the use of toll-free telephone numbers
is, in fact, categorically non-promotional.
21. Elsewhere, Minority makes arguments particular to
specific announcements. It argues that the Gingko Biloba
Tea announcement, which depicts a grandson enjoying tea that
his encouraging grandfather explains will make him smarter,
should be deemed value-neutral because it is ``farcical.''
Minority offers no support for this assertion and we reject
it. Similarly, we reject Minority's argument that the
Korean Airlines announcement is a harmless ``image
announcement'' consistent with Commission underwriting
policy. The announcement features an airliner being
prepared for flight by a busy crew that labors happily,
singing the lyrics ``fill sky with love, love. Spread smile
over face--smile, smile, smile, smile. Fill sky with love,
love, love, love. Fill sky with love. Between you and the
sky is Korean Air.''13 The message exceeds the
identification-only purpose of underwriting announcements by
presenting Korean Airlines to the viewing audience as a
competent, harmoniously-run carrier and an inviting host to
potential travelers. The overall message seeks to induce
patronage and is therefore promotional and prohibited.
22. Minority argues that the Ford Windstar
announcement's reference14 to the vehicle's ``five-star
safety rating in government crash tests four years in a
row'' is factually verifiable and therefore non-promotional.
The factual veracity of a claim made in an underwriting
announcement is irrelevant to the issue of whether it is
promotional. See Tri-State Inspirational Broadcasting
Corporation, 16 FCC Rcd 16800 (EB 2001).15 In this case,
the announcement's reference to the vehicle's superior
safety characteristics is impermissibly comparative and
descriptive in nature. Moreover, Minority's announcement on
behalf of the Ford Explorer and Expedition SUVs is similarly
indistinguishable from commercial advertising in that it
dwells singularly on the products being vigorously used,
featuring them as being able to overcome obstacles to which
lesser vehicles might impliedly succumb: ``the ditch is
deep; but no problem, the minute you show your power [sound
of racing motor]''; and ``with Ford Explorer and Expedition,
[you] can handle any road, anywhere.''16 See WNYE-TV, 7 FCC
Rcd at 6865. Similarly, the Chevy Venture and Impala
announcements make improper reference to the products'
favorable visual and mechanical features and appeal¾``that
should be pretty to catch my fancy'' and ``be strong; be
sharp; beautiful safety design . . . detailed lines,
gorgeous power acceleration.''17
23. On February 25, 2002, we inquired further
concerning seven additional announcements submitted by
Lincoln on behalf of station underwriters Yip's Auto World,
Ulfert's Furniture, Met-Life (Retirement and Insurance--
Great Wall of China), Scandinavian Concepts, Sincere
Plumbing, and East West Bank. In its March 25, 2002,
response, Minority did not provide its own translations for
any of the announcements other than those for Yip's Auto
World and Ulfert's Furniture,18 but commented on Lincoln's
translations as to all.19 In its response, Minority argues
that the foregoing announcements are acceptable because they
are similar to material aired by other leading public
television stations, and claims that they were fashioned in
good-faith reliance on several of the guidelines set forth
by the Public Broadcasting System for its own member
stations.
24. We reject Minority's contentions. Noncommercial
licensees are responsible for complying with Section 399B of
the Act. As to the substance of the announcements, we note
that their visual aspects, viewed in the context of their
accompanying text, appear to be promotional. To the extent
that Minority may have relied upon external advice in
determining whether to air questionable program material,
such factor has been found mitigating only in cases where
the advice is sought from the Commission itself, and is then
strictly followed. See, e.g,. Pine-Aire Broadcasting Corp.,
4 FCC Rcd 1553 (1989) (seeking and following Commission
advice may, in appropriate instances, constitute a
mitigating factor in the event of a rule violation).20
25. Minority's translation for the Yip's Auto
announcement states that ``Yip's Auto cannot guarantee that
you're lucky all the time. But Yip's assures its repairs
for as long as you have your car. Yip's stands behind this
protection.'' The mention of a product or service guarantee
is promotional because it seeks to induce patronage.21 In
addition, both Met-Life announcements contain promotional
elements, characterizing the company as ``offer[ing]
excellent products and services'' in discussing the
financial product as a solution to a customer's problem, and
by favorably describing the strength of its insurance
product, in both image and text, as ``a good protector as
the Great Wall of China was against the enemy.''
26. Minority insists that no analogy was intended and
that the Great Wall was being compared only to itself, not
to the product. That interpretation, however, is
inconsistent with the message's image and text. Contrary to
Minority's contention, it appears that more than value-
neutral ``image identification'' is taking place. The
announcement for Sincere Plumbing makes a prohibited call to
action when it invites viewers to ``come to visit our
showroom.'' Similarly, the announcement for Scandinavian
Furniture describes the showroom's atmosphere and products
as so ``romantic, soft[] and gentl[e]. . . you don't want to
leave.'' Thus, it improperly characterizes the
underwriter's furniture products and business setting in a
comparative, qualitative manner. Additionally, the
announcement for Ulfert's Furniture calls listeners to
action by urging ``[i]f you're shopping for furniture,
please come to Ulfert's.'' In addition, the announcement
for East West Bank depicts characters describing the
services of the bank in prohibited comparative and
qualitative terms: ``it's so easy and fast to be approved
for a house loan at East West Bank.''
27. Lincoln argues that the placement, duration and
frequency of broadcast of the foregoing announcements
constituted substantial interruptions of regularly scheduled
programming in further violation of Section 399A(b) of the
Act. Lincoln further asserts that the announcements failed
to identify their specific underwriters, and that this fact
underscores their commercial nature and demonstrates a
violation of the Commission's underwriting rules. With
regard to Section 399A(b), the Commission has construed this
restriction as one not limiting the number of underwriting
acknowledgments that may be aired, but instead as one
channeling their placement such that the flow of regular
programming is not ``unduly disrupted.'' See Policy
Statement, 90 FCC 2d 895 at 902-03. We note that the
announcements in question uniformly appear to be thirty
seconds or less. Minority contends that it broadcasts no
more than three to four such announcements per half-hour
segment, and our review supports that claim.22
28. The Commission has not adopted quantitative
guidelines on the length of announcements or the number of
repetitions except to note that the longer announcements
are, the more likely they are to be promotional, and that
licensees should avoid placing them with such frequency so
as to constitute ``commercial clutter.'' See WNYE-TV, 7 FCC
Rcd at 6865; Policy Statement, supra. First, even if a
noncommercial licensee takes several breaks per half-hour
segment to run underwriting announcements, this does not, by
itself, demonstrate a violation of Section 399A(b).23
Having reviewed the evidence in this case, we find neither
the overall number, frequency of broadcast announcements,
nor length of the individual messages at issue to be
inconsistent with the Commission's noncommercial rules or
underwriting policy. Based on the overall evidence
submitted, we find that they appear to occur at natural
program breaks and that they do not recur with undue
frequency.
29. However, we find also that the videotaped evidence
depicts announcements that do not contain specific
acknowledgments identifying their sponsors as station
underwriters. As the purpose of underwriting
acknowledgments is to identify those station donors who have
sponsored specific programming, Minority's omission of this
identifying information is improper. Thus, to the extent
that the station's underwriting acknowledgments have been
lacking in this respect, we will caution Minority to make
appropriate underwriter identifications in the future.
30. Sanction. In view of the foregoing, we find that
Minority has apparently violated Section 399B of the
Communications Act, 47 U.S.C. § 399b, and Section 73.621(e)
of the Commission's rules, 47 C.F.R. § 73.621(e), by airing
impermissible donor and underwriting announcements on its
noncommercial educational television station. In this case,
the violations were numerous and continued for an extended
period of time. In this regard, from the information
supplied by the licensee, it appears that the foregoing
announcements were broadcast in excess of 1,911 times during
the January 2000 through March 2002 period.24 Lincoln urges
that we impose a substantial forfeiture in addition to other
extraordinary relief, including enjoining the licensee from
broadcasting further non-compliant announcements and
requiring it to submit to monitoring under the threat of
license revocation, although it cites no precedent in
support of our taking these measures.
31. Considering the entire record, including the
complaints, the pleadings responsive to our inquiries, and
the applicable law, we conclude that a proposed forfeiture
of Ten Thousand Dollars ($10,000.00) is appropriate in this
case. In this regard, we note that the apparent duration,
gravity, egregiousness, and continuing nature of the
violations is more serious than what is contemplated by the
base amount of $2,000 per underwriting rule violation.
Moreover, the facts of this case are more troubling than
those present in proceedings involving other noncommercial
stations. See J.C. Maxwell Broadcasting Group, Inc.
(WMPR(FM)), 8 FCC Rcd 784 (MMB 1993) ($7,500 forfeiture
imposed for repeated underwriting violations on fourteen
dates during a two-year period that persisted even after
several complaints were received and two letters of inquiry
issued); Window to the World Communications, Inc., supra
(where $5,000 forfeiture was originally imposed for numerous
noncompliant television underwriting announcements repeated
over one-year period).25 This case is more serious, as it
involves the broadcast of a larger number of advertisements
on many occasions over a lengthy period of time. These
factors warrant substantial compounding of the base
forfeiture amount. See 47 C.F.R. § 1.80(b)(4). However,
we do not find any other type of sanction to be necessary or
justified at this time.
32. Finally, Lincoln asserts that we should sanction
Minority for filing frivolous pleadings that have abused the
Commission's processes. We decline to do so. Minority's
pleadings filed relative to our underwriting investigation
were not unauthorized from a procedural standpoint. See,
e.g., 47 C.F.R. § 1.41 and § 1.45. From a substantive
standpoint, while we do not accept most of Minority's
contentions, we do not find that the licensee has presented
facts or legal arguments in a manner lacking good-faith or
inconsistent with its right to advocate its views.
IV. Ordering Clauses
33. Accordingly, IT IS ORDERED, pursuant to Section
503(b) of the Communications Act of 1934, as amended,26 and
Sections 0.111, 0.311 and 1.80 of the Commission's rules,27
that Minority Television Project, Inc., licensee of
noncommercial educational television station KMTP-TV, San
Francisco, California, is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of Ten Thousand
Dollars ($10,000.00) for willfully and repeatedly
broadcasting advertisements in violation of Section 399B of
the Act, 47 U.S.C. § 399b, and Section 73.621 of the
Commission's rules, 47 C.F.R. § 73.621.
34. IT IS FURTHER ORDERED, pursuant to Section 1.80 of
the Commission's rules, that within thirty days of the
release of this Notice, Minority SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
35. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment MUST INCLUDE the FCC Registration Number (FRN)
referenced above and also should note the NAL/Acct. No.
referenced above.
36. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W, Room 3-B443, Washington DC 20554 and MUST
INCLUDE the NAL/Acct. No. referenced above.
37. 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.
38. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.28
39. IT IS ALSO ORDERED that the complaints filed by
AT&T Broadband LLC and Lincoln Broadcasting Company ARE
GRANTED to the extent indicated herein and ARE OTHERWISE
DENIED, and the complaint proceeding IS HEREBY TERMINATED.29
40. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to Counsel for Minority Television Project, Inc., James L.
Winston, Esq. and Paul M. Breakman, Esq., Rubin, Winston,
Diercks, Harris & Cooke, LLP, 1155 Connecticut Avenue, NW,
Suite 600, Washington, DC 20036, and by first-class mail to
Michael D. Berg, Esq., Shook, Hardy & Bacon, LLP, 600 14th
Street, NW, Suite 800, Washington, DC 20005-2004, Steven J.
Horvitz, Esq. and Frederick W. Giroux, Esq., Cole, Raywid &
Braverman, LLP, 1919 Pennsylvania Avenue, NW, Suite 200,
Washington, DC 20006-3458.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Table A
Based on information supplied by the licensee, set
forth below is a list of the announcements cited in the
foregoing NAL indicating their broadcast dates.30
Underwriter's Name Date(s)
State Farm Insurance [Year 2000]: 9/25
U-tron Computers [Year 2000]: 7/1; 7/4; 7/7;
7/12; 7/17; 7/20; 7/25; 7/26;
8/2; 8/11; 8/14; 8/17; 8/22;
8/25; 9/1; 9/4; 9/6; 9/13;
9/15; 10/2; 10/5; 10/9; 10/11;
10/16; 10/19; 10/24
Caliber Dual Monitors
Computers [Year 2000]: 7/12; 7/13;
7/18; 7/20
Gingko-Biloba Tea [Year 2000]: 9/15; 9/19; 9/21;
9/26; 9/29; 10/3; 10/6; 10/9;
10/12; 10/18; 10/25; 10/27;
11/2; 11/4; 11/8; 11/9; 11/14;
11/17
Chevy Venture [Year 2000]: 4/6; 4/7; 4/13;
4/14; 4/20; 4/21; 5/8; 5/9;
5/10; 5/11; 5/16; 5/17; 5/18;
5/22; 5/23; 5/24; 5/25; 6/7;
6/9; 6/14; 6/16; 6/20; 6/23;
7/5; 7/7; 7/12; 7/14; 8/9;
8/11; 8/16; 8/18; 8/23; 8/25;
9/7; 9/8; 9/14; 9/15; 9/21;
9/22; 10/10; 10/11; 10/12;
10/13; 10/17; 10/18; 10/19;
10/20; 11/14; 11/15; 11/16;
11/17; 11/21; 11/22; 11/23;
11/24; 12/19; 12/20; 12/21
[Year 2001]: 1/22; 1/23;
1/25; 1/29; 1/30
Chevy Impala [Year 2000]: 3/13; 3/14;
3/15; 3/16; 3/17; 3/22; 3/23;
3/24; 4/6; 4/7; 4/13; 4/14;
4/20; 4/21; 5/8; 5/9; 5/10;
5/11; 5/15; 5/17; 5/18; 5/19;
5/22; 5/23; 5/24; 5/25
[Year 2001]: 1/19; 1/24;
1/29; 1/31; 2/22; 2/23; 2/26;
2/27; 2/28; 4/30; 5/1; 5/2;
5/3; 5/4
Asiana Airlines [Year 2000]: 2/25; 2/29; 3/2;
3/3; 3/6; 3/7; 4/5; 4/6; 4/7;
5/9; 5/10; 5/16; 9/25; 9/26;
9/27; 10/16; 10/17; 10/18
[Year 2001]: 2/23; 2/25;
3/13; 3/14; 3/15; 4/3; 4/4;
4/5; 4/6; 4/7; 4/10; 4/13;
4/14; 4/17; 4/18; 4/19; 4/20;
4/21; 4/24; 4/25; 4/26
Cadillac Escalade [Year 2000]: 2/25; 3/2; 3/3;
3/6; 3/7; 3/8; 3/9; 3/10;
3/13; 3/14; 3/15; 3/16; 3/17;
3/20; 3/21; 3/22; 3/23; 3/24;
4/13; 4/14; 5/9; 5/11; 6/6;
6/8; 7/5; 7/6; 7/7; 7/12;
7/13; 7/14
[Year 2001]: 6/11; 6/12;
6/13; 6/14; 6/15; 6/16; 6/17;
6/18; 6/19; 6/20; 6/21; 6/22;
6/26; 6/27; 10/1; 10/2; 10/3;
10/4; 10/5
Ford Windstar [Year 2000]: 2/10; 2/11;
2/14; 2/15; 2/16; 2/18; 2/21;
2/22; 2/25; 2/28; 2/29; 3/1;
3/2; 3/3; 3/6; 3/7; 3/8; 3/9;
3/10; 3/14; 3/16; 3/17; 3/20;
3/21; 3/23; 3/28; 3/30; 4/3;
4/4; 4/5; 4/6; 4/7; 4/10;
4/11; 4/12; 4/13; 4/14; 4/17;
4/18; 4/19; 4/20; 4/21; 4/24;
4/25; 4/26; 4/28; 5/1; 5/2;
5/3; 5/4; 5/5; 5/8; 5/10;
5/11; 5/15; 5/16; 5/18; 5/19;
5/22; 5/23; 5/26
Ford Explorer and Expedition [Year 2000]: 2/23;
2/24; 3/13; 3/15; 3/22; 3/23;
3/24; 3/27; 3/29; 4/11; 4/17;
4/19; 4/21; 4/26; 4/27; 5/9;
5/12; 5/17; 5/24; 5/25; 5/29;
5/30; 5/31; 6/1; 6/2; 6/5;
6/6; 6/7; 6/8; 6/9; 6/12;
6/13; 6/14; 6/15; 6/16; 6/19;
6/20; 6/21; 6/22; 6/23; 6/26;
6/27
Korean Airlines [Year 2000]: 7/25; 7/26;
7/27; 7/28; 7/31; 8/1; 8/2;
8/3; 8/4; 8/9; 8/11; 8/14;
8/15; 8/16; 8/17; 8/18; 8/19;
8/21; 8/22; 8/23; 8/24; 8/25
[Year 2001]: Each weekday
January through November
except 9/24 to 10/14
Yip's Auto World [Year 2000]: 7/3; 7/4; 7/5;
7/6; 7/7; 7/8; 9/25; 10/17
[Year 2001]: 2/1; 2/2; 2/3;
2/4; 2/5; 2/6; 2/7; 2/8; 2/9;
2/10; 2/12; 2/13; 2/15; 2/17;
2/18; 2/20; 2/21; 2/23; 5/23;
6/2; 9/4; 9/20; and once daily
from October through December
[Year 2002]: 1/2; 1/3; 1/4;
1/5; 1/7; 1/8; 1/9; 1/10;
1/11; 1/12; 1/14; 1/15; 1/16;
1/17; 1/21; 1/22; 1/23; 1/24;
1/25; 1/26; 1/28; 1/29; 1/30;
1/31; 2/1; 2/2; 2/4; 2/5; 2/6;
2/7; 2/8; 2/9; 2/11; 2/12;
2/13; 2/14; 2/15; 2/16; 2/17;
2/18; 2/19; 2/20; 2/22; 2/23;
2/25; 2/26; 2/27; 2/28; 3/1;
3/2; 3/3; 3/4; 3/5; 3/6; 3/8
3/9; 3/10; 3/11; 3/12; 3/13;
3/14; 3/15
Ulfert's Furniture [Year 2000]: Once daily
during August through
December; twice daily on 21
days
[Year 2001]: Once daily;
twice daily on 21 days
[Year 2002]: Once daily
Met Life: Retirement [Year 2001]: 6/2
Met Life: Great Wall [Year 2001]: 6/2
Scandinavian Concepts [Year 2000]: 2/25; 7/18;
7/20; 7/25; 7/27; 8/1; 8/3;
8/8; 8/10; 8/15; 8/17; 8/22;
8/24; 8/29; 8/31; 9/5; 9/7;
9/12; 9/17; 9/26; 9/28; 10/3;
10/5; 10/10; 10/12; 10/17;
10/19; 10/24; 10/26; 10/31;
11/2; 11/7; 11/9; 11/14;
11/16; 11/21; 11/23; 11/28;
11/30; 12/5; 12/7; 12/12;
12/14; 12/19; 12/21; 12/26;
12/28
[Year 2001]: 1/2/; 1/3; 1/5;
1/7; 1/8; 1/9; 1/10; 1/12;
1/14; 1/15; 1/16; 1/17; 1/21;
1/22; 1/23; 1/24; 1/26; 1/28;
1/29; 1/30; 1/31; 2/1; 2/2;
2/6; 2/8; 2/13; 2/15; 2/20;
2/22; 2/27; 3/1; 3/6; 3/8;
3/13; 3/15; 3/20; 3/22; 3/27;
3/29; 4/3; 4/5; 4/10; 4/12;
4/17; 4/19; 4/24; 4/26; 5/23;
5/31; 6/2; 11/15; 11/17;
11/19; 11/20; 11/21; 11/22;
11/27; 11/28; 11/29; 12/1;
12/3; 12/4; 12/5; 12/6; 12/8;
12/10; 12/11; 12/12; 12/14;
12/15; 12/17; 12/18; 12/19;
12/20; 12/21; 12/22; 12/24;
12/26; 12/27; 12/29; 12/30
[Year 2002]: Once daily
Sincere Plumbing [Year 2000]: 7/3; 7/5; 7/7;
7/8; 7/10; 7/12; 7/14; 7/15;
7/16; 7/17; 7/19; 7/21; 7/22;
7/24; 7/26; 7/28; 7/29; 7/31;
8/2; 8/4; 8/5; 8/7; 8/9; 8/11;
8/12; 8/14; 8/15; 8/17; 8/19;
8/21; 8/23; 8/25; 8/26; 8/28;
8/30; 9/1; 9/2; 9/4; 9/6; 9/7;
9/8; 9/9; 9/11; 9/13; 9/15;
9/16; 9/18; 9/20; 9/22; 9/23;
9/25; 9/27; 9/29; 9/30; 10/2;
10/4; 10/6; 10/7; 10/9; 10/11;
10/13; 10/15; 10/16; 10/18;
10/20; 10/21; 10/23; 10/25;
10/27; 10/28; 10/30; 11/1;
11/3; 11/4; 11/6; 11/8; 11/10;
11/11; 11/13; 11/15; 11/17;
11/18; 11/20; 11/22; 11/24;
11/25; 11/27; 11/29; 12/1;
12/2; 12/4; 12/6; 12/9; 12/11;
12/13; 12/15; 12/16; 12/18;
12/20; 12/22; 12/23; 12/25;
12/27; 12/29; 12/30
[Year 2001]: 2/1; 2/6; 2/8;
2/13; 2/15; 2/20; 2/22; 2/25;
2/27; 4/3; 4/5; 4/10; 4/12;
4/17; 4/19; 4/24; 4/26; 6/2;
12/1; 12/2; 12/3; 12/4; 12/5;
12/6; 12/8; 12/9; 12/10;
12/11; 12/12; 12/15; 12/16;
12/17; 12/18; 12/19; 12/20;
12/21; 12/22; 12/23; 12/24;
12/25; 12/26; 12/27; 12/28;
12/29; 12/30
[Year 2002]: Once daily
East West Bank [Year 2001]: 7/14; 7/21;
7/28; 8/4; 8/11; 8/18; 8/25;
9/1; 9/8; 9/15; 9/22; 9/29;
10/6; 10/13; 10/20; 10/27;
11/3; 11/10; 11/17; 11/24
_________________________
1 In its April 17, 2002, reply, Lincoln submitted a new
videotape citing three additional underwriting announcements
allegedly broadcast by KMTP-TV during the period January
2002 through March 2002. We will review those allegations
separately.
2 Minority cites Gonzalez, Fundamentals of Court
Interpretation: Theory, Policy and Practice, Carolina Press
(1991); Gerson and Gerson, Technical Writing: Process and
Product, pp. 60-73, Prentice Hall (1997).
3 See id.
4 See Exhibit C to Minority's Reply to Opposition to
Complaint for Carriage, June 26, 2000, Declaration and
Memorandum of Arlene Stevens.
5 The translations actually provided by Minority do not
coincide with every announcement under consideration. In
certain cases, Minority declined to provide its own
versions, instead criticizing the translations offered by
the complainants. In other instances, we did not inquire
about announcements for which Minority provided
translations. The specifics of the textual evidence will be
discussed infra.
6 See Attachments B, J, K, L, N and O, Minority's Response,
March 25, 2002, and captioned Statements of Margaret Lacson,
Arlene Stevens, Sohyoun Kim, Candy Chan, Lorraine Mallore,
and Joung-Mi Nam, respectively, which array their
educational and linguistic backgrounds. Lincoln's versions
were provided by a professional translator and native
speakers who appear to possess training, background and
expertise comparable to the licensee's expert witnesses.
See Attachment D to Lincoln's Reply, April 17, 2002, and
Declaration of Yan Fen Liu Madjd-Sadjadi; Attachment A to
Lincoln's Complaint, November 9, 2001, and Supporting
Declarations of Kevin Ho, David Shin-Ho Kim, Art Gubisch,
and Frances Chan Lee.
7 Minority suggests that the Court Interpreters' Act
expresses a substantive policy for foreign-language
translations that we should consider when evaluating its
efforts to comply with Section 399B of the Act. We reject
any implication that the provisions of the Court
Interpreters' Act govern proceedings under Title III of the
Communications Act, and note that the Court Interpreters'
Act sets forth guidelines the Administrative Office of the
U.S. Courts shall employ in appointing certified
interpreters in court cases.
Specifically, the applicability of the Court Interpreters'
Act has been narrowly construed to apply to U.S. District
Court judicial proceedings only. See 28 U.S.C. § 1827 (j);
U.S. v. Lira-Arredondo, 38 F.3d 531 (Tenth Cir. 1994) (where
the Tenth Circuit held that the Court Interpreters' Act did
not apply to non-judicial proceedings; that it applied only
to testimony and communications that took place before the
court); In re Morrison, 22 B. R. 969, recon. den., 26 B. R.
57 (Bankr. N.D. Ohio 1982) (where the bankruptcy court
determined the Court Interpreters' Act did not require the
provision of interpreting services at a meeting of creditors
and discharge hearing). Thus, the cited provisions of the
Court Interpreters' Act do not appear to bear on this case.
8 The licensee admits that it failed to edit properly the U-
tron announcement from the version that had been aired on
commercial stations.
9 The visual aspects of the Call One Global Cellular
Telephone and generic Ford Motor Company announcements dwell
heavily on the products in use and thus appear to be
inconsistent with the Commission's underwriting policies.
However, because we are unable to correlate the English
language translated text of these two specific announcements
with their corresponding video, we do not have a complete
context on which to evaluate them. Accordingly, we decline
to rule on them at this time.
10 Minority concedes that one version of this announcement,
broadcast seven times during the period February 25, through
March 9, 2000, contained the following calls to action
``drive Escalade''; ``buy or lease Escalade now!''; ``a
folding viewfinder and cassette player [are included] now
until March 31, 2000''; and should not have been aired.
11 See Attachment A, Minority's Reply to AT&T Broadband LLC
Comments, July 27, 2000; Announcement #11.
12 In describing the prohibition against language that
contains inducements to buy, sell, rent or lease, the
Commission specifically identified the following example:
``six months' free service.'' (Italics added.)
13 See Attachment A to Minority's Reply to AT&T Broadband
LLC Comments, dated July 27, 2000; Announcement #52.
14 See id.; Announcement #23.
15 This analysis is also consistent with past unpublished
letter rulings. See, e.g., Letter of the Chief,
Investigations and Hearings Division, Enforcement Bureau, to
Station KOUZ(FM) (EB July 12, 2000).
16 See id.; Announcement #24.
17 See id.; Announcements #44 and #47.
18 See Attachment P, Minority's Response dated March 25,
2002.
19 Minority cavils with certain grammatical aspects of
Lincoln's translations but does not challenge their overall
meaning. Moreover, in those instances where Minority failed
to provide its own translations we must presume that it
concedes the basic accuracy of Lincoln's interpretations.
20 Although Minority does not pursue this point, it bears
noting that the licensee first sought a declaratory ruling
on the acceptability of several of the announcements in
question. However, Minority did not refrain from
broadcasting them in advance of receiving Commission advice,
so mitigation under the basis articulated in Pine-Aire would
not apply.
21This analysis is consistent with past unpublished letter
rulings. See, e.g., Letter of the Chief, Complaints &
Political Programming Branch, Enforcement Division, to
Evansville-Vanderburgh School Corporation (WPSR(FM)), (MMB
March 23, 1999).
22 See Minority's Response to Letter of Inquiry, December
20, 2001, pp. 6-7.
23 This analysis is also consistent with past unpublished
letter rulings. See, e.g., Letter of the Chief,
Investigations and Hearings Division, to Hispanic Broadcast
System, Inc. (WLAZ(FM)) (EB Feb. 11, 2002).
24 The number of repetitions of the announcements in
question cannot be precisely determined on the record. In
Attachment A to its December 20, 2001, response to our
initial inquiry, and Attachment Q to its March 25, 2002,
response to our second inquiry, Minority provided
information pertaining to eighteen of the announcements
under consideration, contending that they were broadcast
1,911 times during the years 2000 through 2002. See also
Table A to this decision.
25 The original forfeiture amount in Window to the World
Communications, Inc. was based on a finding that the station
had broadcast numerous impermissible underwriting
announcements over an extended period of time. It was later
reduced to $2,000 based on the staff's later conclusion that
only one of the announcements at issue violated Section 399B
of the Act.
26 See 47 U.S.C. § 503(b).
27 See 47 C.F.R. §§ 0.111, 0.311, and 1.80.
28 See 47 C.F.R. § 1.1914.
29For purposes of the forfeiture proceeding initiated by
this NAL, Minority Television Project, Inc. shall be the
only party to this proceeding.
30 Bold-face type indicates dates on which two broadcasts
took place.