Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AMERICAN FAMILY ASSOCIATION ) EB-03-IH-0427
)
Licensee of Noncommercial ) Facility Nos. 88121, 82835
Educational Stations WAEF(FM), )
Cordele, Georgia )
WBJY(FM), Americus, Georgia
MEMORANDUM OPINION AND ORDER
Adopted: April 12, 2004 Released:
April 12, 2004
By the Deputy Chief, Investigations and Hearings Division,
Enforcement Bureau:
I. Introduction
1. In this Order, we admonish American Family
Association (``AFA''), licensee of noncommercial educational
Stations WAEF(FM), Cordele, Georgia, and WBJY(FM), Americus,
Georgia, 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. We have carefully
reviewed the record, including the complaint and AFA'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.
II. Background
2. In response to a listener complaint that AFA's
noncommercial stations had aired commercial advertising,1 we
issued two letters of inquiry to the licensee.2 AFA
responded to our December 1, 2003, inquiries by its
submissions dated December 31, 2003.3 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.4
Although noncommercial educational stations may not
broadcast advertisements, contributors of funds to
noncommercial stations may receive on-air acknowledgements.5
The Commission has held that such acknowledgements may be
made for identification purposes only, and should not
promote the contributors' products, services, or business.6
3. Specifically, such announcements may not contain
comparative or qualitative descriptions, price information,
calls to action, or inducements to buy, sell, rent or
lease.7 At the same time, however, the Commission has
acknowledged that it is at times difficult to distinguish
between announcements that promote versus those which merely
identify the underwriter. Consequently, it expects only
that licensees exercise reasonable, good-faith judgment in
this area.8 In sum, the Commission will defer to licensee
judgments that are made in good faith and are objectively
reasonable.9
III. Discussion
4. The key facts in this case are not in dispute.
AFA represents that it received general contributions from
Dr. Joel M. Johnson and that Stations WAEF(FM) and WBJY(FM)
aired announcements acknowledging his support.10 AFA also
admits that the announcements, since discontinued, departed
from its own internal underwriting guidelines and the
Commission's requirements.11 AFA further represents that the
announcement made over WBJY(FM) encouraging listeners to
attend the Jacki Velasquez concert was ``spontaneous'' and
uncompensated, and argues that it therefore constituted a
``public service announcement'' that did not violate Section
399B of the Act.12 AFA represents that the announcement
made over WBJY(FM) on behalf of Owens Sporting Goods of
Albany was a ``free sample,'' and uncompensated, but admits
that its message did not comply with either its own or
Commission underwriting guidelines.13
5. We find that the subject underwriting
announcements made on behalf of Dr. Joel M. Johnson and
Owens Sporting Goods of Albany exceed the bounds of what is
permissible under Section 399B of the Act, and the
Commission's pertinent rules and policies, under the ``good-
faith'' discretion afforded licensees under Xavier, supra,
because they encourage listeners to patronize the for-profit
underwriters' services or businesses, or otherwise describe
the underwriters in prohibited comparative, qualitative
terms, and were made in exchange for consideration.14 We
agree that the announcement promoting the Jacki Velasquez
concert was acceptably aired pursuant to the ``transitory
event'' exception that pertains to uncompensated
announcements concerning local events of listener
interest.15 In view of the foregoing, we conclude that a
sanction is appropriate. Given the unblemished enforcement
record of the licensee of the stations involved, and in view
of the totality of circumstances of this case, we conclude
that an admonishment, and not a monetary sanction, is
appropriate.16
IV. Ordering Clauses
6. Accordingly, IT IS ORDERED that American Family
Association, licensee of noncommercial educational Stations
WAEF(FM), Cordele, Georgia, and WBJY(FM), Americus, Georgia,
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.
7. IT IS FURTHER ORDERED, that the complaint filed in
this matter IS GRANTED to the extent indicated herein, and
IS OTHERWISE DENIED, and the complaint proceeding IS HEREBY
TERMINATED.17
8. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent, by Certified
Mail -- Return Receipt Requested, to Patrick J. Vaughn,
Esq., Counsel for American Family Association, P.O. Box
2440, Tupelo, Mississippi 38803, and to the complainant.
FEDERAL COMMUNICATIONS COMMISSION
William D. Freedman
Deputy Chief, Investigations and
Hearings Division
Enforcement Bureau
Attachment A
Set forth below is the text of an announcements aired on
Station WAEF(FM), Cordele, GA, and/or WBJY(FM), Americus,
Georgia, between August and December, 2003:
Dr. Joel M. Johnson (45 seconds)
For surgical excellence that's close to home, Dr. Joel M.
Johnson offers both the advanced care and convenience you
deserve, for all your general and vascular surgery needs.
You may contact Dr. Joel M. Johnson at the South Georgia
Surgical Clinic at 382-9733. Dr. Johnson's lifelong
commitment has been to help people live whole, healthy lives
and he is confident that you will notice this the moment
that you meet. Dr. Joel M. Johnson is a proud underwriter
of positive Christian music in South Georgia. 382-9733.
Jackie Velazquez (15 seconds)
[Announcement aired while station host introduces the
artist's recording]:
And now here's Jackie Velazquez. She's going to be at Wild
Adventures tomorrow night, did you know that? Don't miss
it!
Owens Sporting Goods of Albany (30 seconds)
This sports report is brought to you by Owens Sporting Goods
of Albany. Owens has a huge selection of sports equipment
and clothing for families, churches, recreational
departments, and schools, including team logo merchandise.
So be sure to see the good folks at Owens Sporting Goods for
that.
_________________________
1 See Letter of Complainant to Fred L. Broce, District
Director, FCC, dated September 10, 2003 (``Complaint'').
2 See Letters of William D. Freedman, Deputy Division Chief,
Investigations & Hearings Division, Enforcement Bureau, to
American Family Association, dated December 1, 2003
(``LOIs'').
3 See Letter of Patrick J, Vaughn, Counsel for American
Family Association, to Kenneth M. Scheibel, Jr.,
Investigations & Hearings Division, Enforcement Bureau,
dated December 31, 2003 (``WAEF(FM) Response''); Letter of
Patrick J, Vaughn, Counsel for American Family Association,
to Kenneth M. Scheibel, Jr., Investigations & Hearings
Division, Enforcement Bureau, dated December 31, 2003
(``WBJY(FM) Response'')
4 47 U.S.C. §399b(a).
5 See Commission Policy Concerning the Noncommercial Nature
of Educational Broadcasting Stations (1986), Public Notice,
republished, 7 FCC Rcd 827 (1992) (``Public Notice'');
Commission Policy Concerning the Noncommercial Nature of
Educational Broadcasting Stations, Memorandum Opinion and
Order (``1982 Policy Statement''), 90 FCC 2d 895 (1982),
recon. granted in part, 97 FCC 2d 255 (1984).
6 Id.
7 Id.
8 See Xavier University, Memorandum Opinion and Order, 5 FCC
Rcd 4920 (1990).
9 See Minority Television Project, Inc. (KMTP-TV),
Forfeiture Order, 18 FCC Rcd 26611 (EB 2003) (application
for review pending); Window to the World Communications,
Inc. (WTTW(TV)), Notice of Apparent Liability, DA 97-2535
(MMB December 3, 1997), Forfeiture Order, 15 FCC Rcd 10025
(EB 2000) (forfeiture reduced).
10WAEF(FM) Response at 1-2.
11 Id.
12 WBJY(FM) Response at 1-2.
13 Id. AFA indicates that this particular announcement was
uncompensated but was aired in order to encourage the sale
of a larger underwriting package to the merchant.
14The announcements made on behalf of Dr. Joel M. Johnson
were supported by consideration consisting of his monthly
contributions to the licensee. See WAEF(FM) Response at 2.
Because the announcement made on behalf of Owens Sporting
Goods of Albany was aired in order to encourage the sale of
a larger underwriting package to the merchant, AFA
reasonably anticipated consideration. See WBJY(FM) Response
at 1-2; 1982 Policy Statement, 90 FCC 2d 895, 911, ¶ 26
(1982)(public broadcasters are prohibited from airing
announcements promoting ``an entity or individual's goods or
services where the broadcaster receives or reasonably
anticipates the receipt of consideration from such
individual or entity'').
15 1982 Policy Statement, 90 FCC 2d 895, 911-12, ¶¶ 26-29
(1982).
16 See 47 C.F.R. § 1.80 (b)(4).
17
For purposes of the proceeding initiated by this Memorandum
Opinion and Order, AFA shall be the only party to this
proceeding.