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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
JONES COLLEGE ) EB-03-IH-0160
) Facility #31936
Licensee of Noncommercial )
Educational Station WKTZ-FM, )
Jacksonville, Florida )
MEMORANDUM OPINION AND ORDER
Adopted: November 26, 2003 Released:
December 1, 2003
By the Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau:
I. Introduction
1. In this Order, we admonish Jones College
(``Jones''), licensee of noncommercial educational station
WKTZ-FM, Jacksonville, Florida, for broadcasting
advertisements in violation of Section 399B of the
Communications Act of 1934, as amended (``the Act''),1 and
Section 73.503 of the Commission's rules.2 Based on our
review of the facts and circumstances of this case, we
conclude that the licensee has violated the pertinent
statutory and Commission underwriting rule provisions.
Although we believe that no monetary sanction is warranted
at this time based on the licensee's prior unblemished
record and other factors, we find that an admonishment is
necessary to redress the statutory and rule violations.
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.3 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. Specifically, such announcements may not contain
comparative or qualitative descriptions, price information,
calls to action, or inducements to buy, sell, rent or
lease.4 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.5
III. Discussion
4. The Underwriting Announcements. We received
recorded evidence of numerous announcements, allegedly
broadcast by WKTZ-FM on March 1, 2003, that appeared to
promote the products or services of presumably for-profit
entities.6 By inquiry letter dated September 25, 2003, we
asked Jones to comment on announcements made on behalf of
underwriters that included Chuck Nolan Cadillac, Annabelle's
Home Furnishings gallery, Donovan Heat & Air, Count Basie
Orchestra, and Windsor Park Golf Club.7 These announcements
are alleged to contravene the statute, as implemented and
interpreted by applicable Commission rules, precedent and
policy.8
5. In its October 15, 2003, response, Jones admits
that the announcements were aired by WKTZ-FM, but contends
that it ``cannot confirm or deny'' that the transcripts
reflect the announcements ``exactly as broadcast.''9 Jones
maintains that the announcements were contained in a weekly
two-hour program called ``Swingtime'' provided to the
station by programmer Norm Vincent, who prepares the show
for air.10 Jones contends that it pays nothing to Mr.
Vincent for the program, and that it receives nothing from
him or the underwriters mentioned in the announcements.11
Jones argues that because the underwriters are sponsors of
the ``Swingtime'' show, but not station WKTZ-FM, and because
no consideration was exchanged between the underwriters and
the station for the broadcast of the announcements, they
could not be deemed to be ``advertisements'' prohibited by
section 399B of the Act.12 Jones further represents,
however, that, upon consultation with counsel, Mr. Vincent
has ``truncate[d]'' the underwriting announcements in order
to ensure future underwriting rule compliance,13 and that
the station has instituted internal procedures to ensure
more ``consistent,'' rather than ``periodic'' review of its
broadcast underwriting announcements.14
6. We find that all of 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, for the
reason that they encourage or invite business patronage,
make references to discounted or low-cost services or
products, or otherwise depict the underwriters in a
comparative and qualitative manner.15 Although underwriting
announcements may identify underwriters and their products
or services, they may not promote them.16 We reject Jones's
argument that because the station received no payment for
the broadcast of the announcements, they could not be deemed
to be ``advertisements,'' as a matter of law, under section
399B of the Act. Remuneration of consideration has been
construed to include various forms.17 In this case, Jones
indicates that the station did not pay Mr. Vincent for the
right to broadcast the ``Swingtime'' program.18 The
``consideration'' received by the station for broadcasting
the announcements thus appears to have been the producer's
agreement to allow the station to air the ``Swingtime''
program free of charge.19 Consequently, we reject any
suggestion that Jones' broadcast of the announcements was
permissible under section 399B of the Act.
7. Finally, Jones's reliance on its programmer to
supply the station with program material that complies with
Commission underwriting policy does not excuse it from
liability for any sanction we impose. Licensees are
responsible for learning and complying with the statutes and
rules administered by the Commission,20 and for monitoring
the content of their program material, from whatever source
obtained, prior to airing it.21 However, in determining the
appropriate sanction, we will take cognizance of the fact
that Jones itself did not produce the program in question.22
8. Sanction. In view of the foregoing, we conclude
that a sanction is appropriate. However, because of the
prior unblemished record of the licensee, and the fact that
the station itself did not produce the complained of program
material, we do not believe that a monetary sanction is
necessary to redress the instant rule violations. We
instead conclude that an admonishment is sufficient at this
time.23 We further urge the licensee to implement
procedures and practices at its station to ensure that its
broadcast underwriting announcements comply with the
pertinent statute, Commission rules, and precedent
pertaining thereto.
IV. Ordering Clauses
9. Accordingly, IT IS ORDERED that Jones College,
licensee of noncommercial educational station WKTZ-FM,
Jacksonville, Florida, 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 Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to Jones College, 5353 Arlington Expressway, Jacksonville,
Florida 32211, and to its counsel, Christopher D. Imlay,
Esq., Booth, Freret, Imlay & Tepper, P.C., 14356 Cape May
Road, Silver Spring, Maryland 20904-6011.
FEDERAL COMMUNICATIONS COMMISSION
William D. Freedman
Deputy Chief
Investigations and Hearings
Division
Enforcement Bureau
Attachment
ATTACHMENT
The following text was transcribed from audio-taped
recordings of underwriting announcements broadcast on WKTZ-
FM, Jacksonville, Florida, on March 1, 2003:
1. Chuck Nolan Cadillac
Well, as I've mentioned, we're here because of some very
nice people at Chuck Nolan Cadillac. Ninety-eight plus
years in the business. They're going stronger than ever, my
friends. Chuck Nolan Cadillac - over ninety-eight years of
satisfying customers with friendly service and honest value.
Just think, since 1905, the Chuck Nolan people have been
selling and servicing America's proudest name in
automobiles. It's called the standard by which most all
others are compared for sure. There are many reasons
customers keep coming back year after hear to this ten-time
``Master Dealer.'' Why not find out for yourself.
You'll find the goal here is to serve you, and that
commitment really shows. Customers consistently rank Chuck
Nolan Cadillac among the best in the country in sales and
service. So, whether you decide to lease or buy, Chuck
Nolan's full-service finance and insurance office offers a
broad range of financing offers.
You want to know where they are? I'll tell you. They're
out there on Southside Boulevard so conveniently located
across from Tinseltown; 2/3 miles north of the Butler.
Chuck Nolan Cadillac: They've been doing things right since
1905.
2. Annabelle's Home Furnishings Gallery
You know, there's nothing quite like a visit to Annabelle's
Home Furnishings Gallery in Orange Park. Especially this
time of year with Spring just around the corner and one-
hundred-fifty cartons of new merchandise from Annabelle's
recent trip to market have been unloaded and await your
inspection!
And that includes all the ``Lamp-Bergere'' styles and
fragrances. ``Lamp-Bergere,'' the super-popular oil-burning
lamp that emits wonderful fragrances while cleaning and
purifying the air. Oh, leave it to Annabelle to become the
only dealer in Orange Park for this hot item. Now there are
classic styles, as well as the signature collections, museum
pieces and fragrances. Oh, so many, including floral,
fruit, jasmine, exotic, winter wood, and so many others.
Now at Annabelle's, lots of new colors to brighten your
spirits, and neat things like crystal baubles that you can
hang on a lampshade. Or just place. We call them ``jewelry
for the home.'' Oh, and so much more. So allow plenty of
browse time, my friends. You'll love it.
Annabelle's Home Furnishings Gallery on College Drive
immediately off Blanding Boulevard in Orange Park. A
special place always with something special for you.
3. Donovan Heat & Air
I want to tell you about Donovan Heat & Air--one of the
companies that helps make ``Swing Time'' possible. It is
Donovan Heat & Air.
Many of you are Donovan Heat & Air customers, and I know
you're as satisfied as I am. Donovan Heat & Air is a
company large enough to provide customers with competitive
fair pricing for major work, and certainly small enough to
provide the kind of personal and dedicated service family-
owned and operated companies are so well suited for.
Now, hopefully you won't need Donovan Heat & Air's services
often, other than those all-important preventive maintenance
check-ups, but when you do you're going to get quick, honest
and competent work with no overtime charges until after 8
p.m., including Saturday. Free major work estimates and a
ninety-day no-payment/no interest finance plan available to
you. That's Donovan Heat & Air.
Here's the telephone number: 223-4200. 223-4200. Donovan
Heat & Air. A company for all seasons.
4. Count Basie Orchestra
Here's some good news for all of you Count Basie fans. The
Count Basie Orchestra will be here to perform in concert at
the Jacksonville University Terry concert Hall, Wednesday,
March 12th at 7:30 p.m.
Yes, the All-American big band with several of the original
Count's men. They're coming to town, so mark your calendars
now and call Pat Young at 256-7371 for tickets. That's Pat
Young at 256-7371.
The Basie Orchestra is under the direction of noted
trombonist and leader Grover Mitchell. They're considered
the best big band on tour, and I know will provide an
exciting and memorable evening for all of us. So before you
forget, make a note to call Pat Young for tickets. 256-
7371. 256-7371. March 12th at JU's Terry Concert Hall.
Count Basie Orchestra: timeless, priceless, and still the
genuine article. This is one that you don't want to miss.
5. Windsor Park Golf Club
Here's some good news for all you senior golfers, who are
looking for your game out on the right course. And the
course I'm speaking about of course, is the Windsor Park
Golf Club. The Windsor Park Golf Club has a senior bonus
program which allows you to play at a special reduced rate,
including a cart, on any Tuesday right up until May 12th.
Now this is an opportunity for you to play and enjoy this
beautiful, challenging, and Jacksonville's only nationally
rated golf course, for a special senior's rate. Any Tuesday
until May 12th. So all you have to do is call 223-GOLF.
That's 223-GOLF for details on this senior's golf program,
and arrange your tee time for some world-class golf. User-
friendly and conveniently located. Windsor Park Golf Club
on Hodges Boulevard between Beach and the Butler.
_________________________
1 47 U.S.C. § 399b.
2 47 C.F.R. § 73.503.
3 47 U.S.C. §399b(a).
4 See In the Matter of Commission Policy Concerning the
Noncommercial Nature of Educational Broadcasting Stations
(1986), Public Notice, republished, 7 FCC Rcd 827 (1992)
(``Public Notice'').
5
See Xavier University, 5 FCC Rcd 4920 (1990).
6See Letter of James C. McKinney to Ralph Barlow, District
Director, Enforcement Bureau, dated March 1, 2003
(``Complaint Letter'').
7See Letter of the Chief, Investigations and Hearings
Division, Enforcement Bureau, to Jones College, dated
September 25, 2003 (``LOI'').
8See Complaint Letter.
9 See Letter of Jones College, to the Chief, Investigations
and Hearings Division, Enforcement Bureau, dated October 15,
2003, at 2 (``Response'').
10Id.
11Id.
12Id.
13 Id. at 3. Jones did not indicate specifically how the
text of the announcements was to be modified.
14 Id.
15LOI, exhibits A- E; Attachment.
16 See Public Notice, supra; Kosciusko Educational
Broadcasting Foundation (WJTA(FM)), 5 FCC Rcd 7106 (MMB
1990).
17 See, e.g., Fuqua Communications, Inc., 30 FCC 2d 94, 97
(1971).
18 Response at 2.
19 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) (``WTTW''); Commission
Policy Concerning the Noncommercial Nature of Educational
Broadcast Stations, 90 FCC 2d 895, 911 (1982), recon., 97
FCC 2d 255 (1984).
20 See, e.g. In the Matter of Rego, Inc., 16 FCC Rcd 16795,
16797 (EB 2001), citing Gaffney Broadcasting, Inc., 23 FCC
2d 912, 913 (1970).
21 See WTTW, supra.
22 Id.
23 See Note to 47 C.F.R. § 1.80(b)(4).