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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
ENID PUBLIC RADIO ASSOCIATION ) EB-02-IH-0607
) Facility # 124554
Licensee of Low Power )
Noncommercial Station KUAL-LP, )
Enid, Oklahoma )
MEMORANDUM OPINION AND ORDER
Adopted: August 20, 2004
Released: August 23, 2004
By the Chief, Investigations and Hearings Division,
Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we admonish
Enid Public Radio Association (``Enid''), licensee of low
power noncommercial educational FM Station KUAL-LP, Enid,
Oklahoma, for broadcasting advertisements in violation of
section 399B of the Communications Act of 1934, as amended
(the ``Act''),1 and section 73.503(d)2 of the Commission's
rules. We have carefully reviewed the record, including
Enid'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, based on the entire circumstances of
this case, we find that an admonishment is necessary to
redress the statutory and rule violations. Moreover, we
believe that it is appropriate to specifically advise Enid
of our concerns so that rule compliance may be fully
achieved.
II. BACKGROUND
2. In response to a complaint received by our Dallas
Field Office, we inquired of the licensee concerning its
underwriting announcements. Enid responded to our December
10, 2003, inquiry3 by its submission dated January 2, 2004.4
In its response, Enid acknowledges that it broadcast the
inquired of underwriting announcements during the period
June 5, 2002, through June 19, 2002, on Station KUAL-LP.5
Enid indicates that since receiving our LOI, it has
initiated procedures to ensure that underwriting
announcements will undergo more stringent staff review prior
to broadcast.6
III. DISCUSSION
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.7 As the Commission has long held,
noncommercial educational stations may not broadcast
advertisements.8 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.9
4. Specifically, such announcements may not contain
comparative or qualitative descriptions, price information,
calls to action, or inducements to buy, sell, rent or
lease.10 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.11
5. The key facts in this case are not in dispute.
Enid admits that Station KUAL-LP broadcast the announcements
described in our letter of inquiry and set forth in the
attached transcript; that the sponsors are for-profit
entities; and that, with the exception of the announcement
made on behalf of Remax Premier Realty, that it received
consideration for airing the messages. Enid claims that it
broadcast the Remax announcement only once, due to confusion
during the staff's script approval process, and that the
other announcements aired only during a two-week period in
June, 2002.12 Enid asserts that it has since taken steps to
ensure underwriting rule compliance by revising the
station's donor acknowledgment policy and practice.13
6. With the exception of the Remax announcement,
whose broadcast was not made in exchange for consideration,
we find that the other 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. In this regard, the
announcements seek to promote their underwriters through
comparative and qualitative descriptions and references that
one could not reasonably believe would be permitted under
section 399B of the Act and the Commission's pertinent
rules, and are thus prohibited. Notwithstanding this
finding, however, we believe that a monetary forfeiture is
not necessary to redress the statutory and rule violations
at issue. Enid has previously enjoyed a blemish-free
enforcement record.
IV. ORDERING CLAUSES
7. In view of the foregoing, we conclude that a
sanction is appropriate. Accordingly, IT IS ORDERED that
Enid Public Radio Association, licensee of low power
noncommercial station KUAL-LP, Enid, Oklahoma, IS
ADMONISHED for broadcasting advertisements in violation of
section 399B of the Act, 47 U.S.C. § 399b, and section
73.503(d) of the Commission's rules, 47 C.F.R. § 73.503(d).
8. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent, by Certified
Mail -- Return Receipt Requested, to Enid Public Radio
Association, 2122 West Maine, Enid, Oklahoma 73703.
FEDERAL COMMUNICATIONS COMMISSION
William H. Davenport
Chief, Investigation & Hearings
Division Enforcement Bureau
ATTACHMENT
Transcript of Underwriting Announcements Aired on LPFM
Station KUAL-LP, Enid, Oklahoma, from June 5 through June
19, 2002:
Bradford Automotive Repair (30 seconds)
This portion of the news is brought to you by Bradford
Automotive Repair. Steve Bradford, he's been around for 22
years, and that's a long time; a lot of repairs he's been
doing here in Enid at 410 South Grant. And he's open from
8-5 Monday through Friday. His phone number is 234-6635.
That's 234-6635. And he's a very experienced repairman.
And he's a proud sponsor of 104.7, ``The Rocket.''
Bradford Automotive Repair (30 seconds)
MV: Bradford Automotive Repair's at 410 South Grant is open
from 8-5 Monday through Friday. Steve Bradford¾a really
nice guy¾too. You know him, don't you, Jenny?
FV1: I believe my Dad knows him actually.
MV: Norman?
FV1: Yes.
MV: Well, Steve Bradford has offered general automotive
repair for 22 years. And you know what, Anita?
FV2: What?
MV: That's a lot of repairs and a lot of satisfied
customers, too.
FV2: Yes!
MV: Bradford Automotive Repairs can be reached at 234-6635.
Bradford Automotive Repairs, a proud sponsor of our
programming today on 104.7, ``The Rocket.''
Beds Unlimited (30 seconds)
Beds Unlimited is located just south of Northcutt Toyota on
Overland Trail. They feature 90-day layaway on
everything¾bedroom sets, adjustable beds, sofas, futons, and
more. They're an authorized Orthopedic Mattress dealer, and
remember their slogan, ``if you haven't shopped Beds
Unlimited, you're not saving money.'' Beds Unlimited, a
fine sponsor of programming on 104.7, ``The Rocket.''
_________________________
1 47 U.S.C. § 399b.
2 47 C.F.R. § 73.503(d) is a noncommercial broadcast rule
applicable to LPFM licensees through incorporation by §
73.801. 47 C.F.R. § 73.503(d) allows noncommercial stations
to air announcements acknowledging underwriter or sponsor
donations, but prohibits the broadcast of paid announcements
that promote for-profit underwriters or sponsors.
3 See Letter of William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, to
Enid Public Radio Association, dated December 10, 2003
(``LOI'').
4 See Letter of Ron Anderson, Director, Enid Public Radio
Association, to William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
dated January 2, 2004 (``Response'').
5 Response at 1.
6 Id.
7 47 U.S.C. §399b(a).
8 See In the Matter of the Commission Policy Concerning the
Noncommercial Nature of Educational Broadcasting Stations
(1986), Public Notice, republished, 7 FCC Rcd 827 (1992)
(``Public Notice'').
9
Id.
10
Id.
11 See Xavier University, Memorandum Opinion and Order, 5
FCC Rcd 4920 (1990).
12 See Response at 1.
13 Id.