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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
CHRISTIAN VOICE OF CENTRAL ) EB-03-IH-0501
OHIO, INC. ) Facility ID No. 11126
) NAL/Account No. 200532080016
) FRN 0002990828
Licensee of Formerly )
Noncommercial Educational )
Station WCVZ(FM), South
Zanesville, Ohio
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 6, 2004
Released: December 7, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that Christian Voice of
Central Ohio, Inc. (``Christian Voice''), licensee of
formerly noncommercial educational Station WCVZ(FM), South
Zanesville, Ohio, has apparently violated 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, by apparently willfully and repeatedly
broadcasting prohibited advertisements. Based upon our
review of the facts and circumstances of this case, we
conclude that Christian Voice is apparently liable for a
monetary forfeiture in the amount of $20,000.
II. BACKGROUND
2. This case arises from a complaint filed with the
Commission in September 2003, alleging that then-
noncommercial educational Station WCVZ(FM) broadcast
prohibited underwriting announcements during the month of
August 2003.1 In April 2004, after the complaint had been
filed but before the Enforcement Bureau (the ``Bureau'') had
inquired into this matter, Christian Voice sought to modify
its station's noncommercial educational license so that it
could operate WCVZ(FM) as a commercial facility.2 By letter
dated June 17, the Bureau inquired of the licensee
concerning the allegations contained in the complaint.3 The
licensee responded to the staff's inquiry by its filing
dated July 19.4 Thereafter, the staff contacted the
licensee's counsel and directed that Christian Voice file a
further response specifically responding to the inquiries
posed in the LOI, and also provide a sponsoring affidavit or
declaration, also as required by the LOI. Christian Voice
further responded to the LOI on September 8, 2004.5
III. DISCUSSION
3. Under section 503(b)(1) of the Act, any person who
is determined by the Commission to have willfully or
repeatedly failed to comply with any provision of the Act or
any rule, regulation, or order issued by the Commission
shall be liable to the United States for a forfeiture
penalty.6 In order to impose such a forfeiture penalty, the
Commission must issue a notice of apparent liability, the
notice must be received, and the person against whom the
notice has been issued must have an opportunity to show, in
writing, why no such forfeiture penalty should be imposed.7
The Commission will then issue a forfeiture if it finds, by
a preponderance of the evidence, that the person has
willfully or repeatedly violated the Act or a Commission
rule.8 As described in greater detail below, we conclude
under this procedure that Christian Voice is apparently
liable for a forfeiture in the amount of $20,000 for its
apparent willful and repeated violations of Commission's
underwriting rules.
A. Christian Voice Apparently Has Willfully and
Repeatedly Broadcast Advertisements in Violation of
Section 399B of the Act and Section 73.503 of the
Commission's Rules
4. 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.9 The pertinent statute specifically
provides that noncommercial educational stations may not
broadcast advertisements.10 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.11 Specifically, such announcements
may not contain comparative or qualitative descriptions,
price information, calls to action, or inducements to buy,
sell, rent or lease.12 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, the
Commission expects only that licensees exercise reasonable,
good-faith judgment in this area.13
5. At issue here are eleven underwriting
announcements that Christian Voice admits that its station
broadcast, not only during the month of August 2003 as
alleged in the complaint, but throughout the period October
2002 through December 2003.14 Christian Voice also
acknowledges that it received remuneration for airing the
messages on behalf of the station's underwriters, all of
which are for-profit entities, and that ten of those
messages were repeated approximately 3,149 times.15 With
respect to the announcements made on behalf of station
underwriter Barnes Advertising, Christian Voice failed to
identify the specific period of time that the station aired
them, indicating only that those messages were broadcast
``three times a day and four times a day on Saturdays.''16
Because of this uncertainty, the total number of repetitions
upon which we rely, 3,149, does not include the messages
aired on behalf of Barnes Advertising.17 Christian Voice
claims that, prior to its station's license modification to
operate commercially, management followed the Commission's
noncommercial underwriting rules and policies ``as best as
they could discern the applicable standards.''18
6. We have carefully reviewed the record in this
case, and find that each of the eleven announcements at
issue exceeds 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. We so
conclude because the announcements seek impermissibly to
distinguish favorably their underwriters from competitors by
directly stating or implying that they offer superior
service or products, and the announcements, in many
instances, also invite or urge business patronage.
Moreover, the announcements were aired over a substantial
period of time¾fifteen months.19
B. Proposed Action
7. Section 503(b) of the Act and section 1.80(a) of
the Commission's rules both state that any person who
willfully or repeatedly fails to comply with the provisions
of the Act, the rules or Commission orders shall be liable
for a forfeiture penalty.20 The Commission's Forfeiture
Policy Statement sets a base forfeiture amount of $2,000 for
violation of the enhanced underwriting requirements.21 The
Forfeiture Policy Statement sets forth a base forfeiture
amount of $4,000 for failure to respond to Commission
communications.22 The Forfeiture Policy Statement also
specifies that the Commission shall adjust a forfeiture
based upon consideration of the factors enumerated in
section 503(b)(2)(D) of the Act, such as ``the nature,
circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other
matters as justice may require.''23
8. In this case, it appears that, from October 2002
through December 2003, Christian Voice willfully and
repeatedly broadcast advertisements in violation of section
399B of the Act and section 73.503(d) of the Commission's
rules. We believe that a substantial forfeiture is
necessary due to several factors, including the lengthy
period of time over which the prohibited announcements were
aired -- fifteen months -- and the great number of times
that the announcements were repeated -- more than 3,149 --
indicating an utter failure of licensee practice and policy
concerning its underwriting compliance responsibilities. 24
9. In Minority Television Project NAL, the Bureau
proposed a $10,000 forfeiture against a noncommercial
educational broadcast licensee for nearly 2,000 violations
of the Commission's underwriting rules over a 26-month
period of time.25 In this case, Christian Voice broadcast
substantially more prohibited announcements during a shorter
period of time. Accordingly, we find that a significantly
higher apparent forfeiture is necessary and propose a
$20,000 forfeiture.
10. Accordingly, applying the Forfeiture Policy
Statement and the statutory factors to this case, we
conclude that Christian Voice is apparently liable for a
forfeiture in the amount of $20,000, for violating the
Commission's underwriting rules. We will not hesitate to
take even stronger enforcement action against noncommercial
educational licensees that engage in similarly egregious
violations of our underwriting requirements.
IV. ORDERING CLAUSES
11. In view of the foregoing, we conclude that a
monetary sanction is appropriate. Accordingly, pursuant to
section 503(b) of the Communications Act of 1934, as
amended, and sections 0.111, 0.311 and 1.80 of the
Commission's rules, Christian Voice of Central Ohio, Inc.,
licensee of former noncommercial educational Station
WCVZ(FM), South Zanesville, Ohio, is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount of $20,000
for willfully and repeatedly 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.
12. IT IS FURTHER ORDERED, pursuant to section 1.80 of
the Commission's rules, that within thirty days of the
release of this Notice, Christian Voice SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
13. Payment of the forfeiture must be made by mailing
a check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include
the NAL Acct. No. and FRN referenced above. Payment by
check or money order may be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. Payment by
overnight mail may be sent to Bank One/LB 73482, 525 West
Monroe, 8th Floor Mailroom, Chicago, IL 60601. Payment by
wire transfer may be made to ABA Number 071000013, receiving
bank Bank One, and account number 1165259.
14. The response, if any, must be mailed to William H.
Davenport, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W, Room 4-C330, Washington DC 20554 and MUST
INCLUDE the NAL/Acct. No. referenced above.
15. 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.
16. 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. 20554.26
17. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to Christian Voice of Central Ohio, Inc., P.O. Box 783, New
Albany, Ohio 43054, and to its counsel, David J. Kaufman,
Esq., Brown Nietert & Kaufman, Chartered, Suite 817, 2000 L
Street, N.W., Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
ATTACHMENT
The following text was transcribed by the confidential
complainant from underwriting announcements broadcast over
then-noncommercial educational Station WCVZ(FM), South
Zanesville, Ohio.
Tasty Freeze
Planning a special occasion? Tasty Freeze, at the airport
exit off of I-70, has ice cream cakes for that office
celebration, birthdays, anniversaries, or for that special
event you've planned. These cakes, tastefully decorated by
Bobby Tim, are available in 8 or ten inch. Tasty Freeze, at
the airport exit off of I-70, is open 7 days a week from
noon until 10 p.m. Also available at Tasty Freeze: Hearth
and Home Ohio Bicentennial candles by lum-lite, ice cream
treats or ice cream cakes, it's Tasty Freeze, 588-9314.
Runner Land Company
Are you looking for land for hunting, recreational purposes,
home building or as an investment? Runner Land Company, a
family-owned business, purchases large parcels of property
and farms in Ohio, West Virginia, and Pennsylvania, for the
purpose of subdividing them into potential home sites or
recreational lots. Owner financing available, Runner Land
Company for more than 16 years helping people become
property owners. Runner Land Company, we don't list
acreage, we buy it. Exit 41 off of I-77 in Byeville (740)
685-3064.
Salon Priorities
Want the look you've always dreamed of? Salon Priorities is
a full service salon specializing in innovative hairstyles.
Salon Priorities gas distinctive new styles to extenuate
your features. Salon Priorities, where the atmosphere is
relaxed and friendly, Salon Priorities, your premier source
for hair design, features Alterna and Kenra products. Salon
Priorities, 963 Linden Avenue, next to modern glass in
Zanesville, Salon Priorities, hair with attitude head on,
454-3128.
Williamson Insurance
``You reach a certain age where suddenly it's not about
where are we gong to go on Friday night,''
[says] Phil Urban, president and CEO of Grange Insurance,
``it's about children, and a mortgage, and responsibilities,
and it can add up to a pretty good amount of money, and
making sure you've got the right life insurance is
absolutely a part of the strategy.''
Protecting your assets and debt is the key to your financial
responsibility. Grange Insurance is there and so is
Williamson Insurance in Zanesville. Williamson Insurance is
your local independent Grange agent, whether it's home,
farm, business or life insurance. Williamson Insurances'
personalized service and attention to detail can make a big
difference in good times and bad. All backed by the
strength of Grange Insurance, Williamson Insurance, 453-
0791, and they're at 2115 Maple Avenue in Zanesville.
Williamson Insurance is now located temporarily at 3562
Maple Avenue in the Colony Center while they build to serve
you better.
Prindle GMAC Real Estate
Prindle GMAC Real Estate is proud to be an underwriter of
Christian radio, located at 1805 Maple Avenue in Zanesville.
Prindle GMAC Real Estate is experience din all types of real
estate sales. At Prindle GMAC Real Estate, we're all about
family. Dick Pryor of Prindle GMAC Real Estate offers over
25 years of home buying and home selling experience. Dick
Pryor and Prindle GMAC Real Estate, we love selling real
estate. Dick Pryor, 454-9191.
Snouffer Funeral Home
Snouffer Funeral Home with all the warmth of home. This is
Josh Snouffer, owner and funeral director of Snouffer
Funeral Home, Zaneville's nicest, largest, and most
affordable funeral home. With the loss of a loved one,
there are so many things to do. That's why Snouffer Funeral
Home is there for you. Snouffer Funeral Home is here for
you, with a convenient location, ample parking, large
viewing rooms, a spacious chapel, and for your convenience,
no steps, ramps, or elevators, an outdoor patio, and a
special area for your children. I extend my personal
invitation for you and your family to discuss with me your
pre-planning funeral needs; in-home visits are available.
Snouffer Funeral Home, we are here for you, before, during,
and after your loss. Snouffer Funeral Home, 1150 West
Military Road in Zanesville, 740-450-8000, or
snoufferfuneralhome.com.
Barnes Advertising
Narrator: ``Barnes Advertising, we are outdoor advertising.
Barnes Advertising, we ARE outdoor advertising.''
First Voice: ``What are you doing?''
Second Voice: ``Promoting who we are.''
First Voice: ``You're way over the top.''
Second Voice: ``Well, how would you do it?''
First Voice: ``Just tell them what you do.''
Second Voice: ``We are a family-owned company since 1916,
serving 13 counties in central and
southern Ohio.''
First Voice: ``That's better, but don't forget the phone
number.''
Second Voice: ``O.K., 1-800-458-1410.''
First Voice: ``What was that?''
Second Voice: ``1-800-458-1410.''
Hague Quality Water
The real flavor of water refreshes and satisfies, but today,
enjoying a drink of water may not be as simple as filling
your glass from the tap. Even in approved municipal
systems, the goodness is often marred by minerals, organic
matter, or chlorine. A Hague drinking water system, with
reverse osmosis, turns ordinary tap water into a continuous
supply of fresh water. Quality products, quality service,
quality support by quality people, it's all in their name,
Hague Quality Water, West Main Street in Zanesville, 740-
455-3202.
Cambridge Classic Ford and Caldwell Classic Chevrolet
With any new car or truck purchased, Cambridge Classic Ford
and Caldwell Classic Chevrolet will provide an oil change
and car wash for five years or 50,000 miles. The 5/50 oil
and bath, available at Cambridge Classic Ford and Caldwell
Classic Chevrolet. Don't buy any old car, but a classic.
740-439-7767 or toll-free 888-882-5393.
The School House
Are you looking for creative learning materials? The School
House, your parent-teacher supply store, has two locations,
in Newark and Zanesville, to serve you. The School House
has accessories for teachers, schools, home-schoolers,
including Alpha-Omega home school curriculum, grandparents,
youth-serving organizations, and anyone working with
children. The School House, where learning and fun come
together, 1218 Brandywine Boulevard in Zanesville, and 36
South Third Street in Newark. Zanesville, 455-6445; Newark,
345-7710.
_________________________
1 See Letter from confidential complainant to Maureen Del
Duca, Chief, Investigations and Hearings Division,
Enforcement Bureau, dated September 11, 2003
(``Complaint'').
2 See File No. BMLH-20040415AEI, granted July 19, 2004
(``WCVZ Commercial Application'').
3 See Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, to
Christian Voice of Central Ohio, Inc., dated June 17, 2004
(``LOI'').
4 See Letter from David J. Kaufman, Esq., to William D.
Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, dated July 19, 2004 (``July
19th Response''). In its response, Christian Voice also
provided CDs of the announcements in question, as well as a
request for confidentiality regarding the documents that it
had provided in the binder. See id.; 47 C.F.R. § 0.459.
Because this NAL discusses only that information already
made public by Christian Voice, i.e., the text of the
announcements broadcast, the identity of the underwriters as
revealed in such announcements, and when and how many times
the announcements were aired, we need not rule on the
confidentiality request. Until we do so rule, we will honor
Christian Voice's request for confidential treatment of
certain internal documents and business information that it
has supplied to the Bureau during the course of this
investigation.
5 See Letter from David J. Kaufman, Esq., to William D.
Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, dated September 8, 2004
(``September 8th Response'').
647 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also
47 U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14
U.S.C. § 1464). Section 312(f)(1) of the Act defines
willful as ``the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to
violate'' the law. 47 U.S.C. § 312(f)(1). The legislative
history to section 312(f)(1) of the Act clarifies that this
definition of willful applies to both sections 312 and
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d Sess.
51 (1982), and the Commission has so interpreted the term in
the section 503(b) context. See, e.g., Application for
Review of Southern California Broadcasting Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) (``Southern
California Broadcasting Co.''). The Commission may also
assess a forfeiture for violations that are merely repeated,
and not willful. See, e.g., Callais Cablevision, Inc.,
Grand Isle, Louisiana, Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a
Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage).
``Repeated'' means that the act was committed or omitted
more than once, or lasts more than one day. Southern
California Broadcasting Co., 6 FCC Rcd at 4388, ¶ 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362 ¶ 9.
747 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
8See, e.g., SBC Communications, Inc., Forfeiture Order, 17
FCC Rcd 7589, 7591 ¶ 4 (2002). In SBC Communications, the
Commission assessed a $100,000 forfeiture against a carrier
for its willful refusal to supply a sworn declaration in
response to an Enforcement Bureau letter of inquiry. The
Commission stated: ``[T]he order here was squarely within
the Commission's authority and, in any event, parties are
required to comply with Commission orders even if they
believe them to be outside the Commission's authority.''
Id. at ¶ 5.
9 47 U.S.C. § 399b(a).
10 Id.
11 See In the Matter of the Commission Policy Concerning
the Noncommercial Nature of Educational Broadcasting
Stations, Public Notice (1986), republished, 7 FCC Rcd 827
(1992) (``Public Notice'').
12 Id.
13 See Xavier University, Memorandum Opinion and Order, 5
FCC Rcd 4920 (1990).
14 See September 8th Response at 3-4.
15 Id.
16 Id. at 4. Although we do not have the specific number of
times the Barnes Advertising announcement ran, we note that,
even assuming that Christian Voice only broadcast messages
on behalf of Barnes Advertising during a single 30-day
month, consisting of 22 weekdays, it would have run 70 such
messages.
17 The licensee further represents that Barnes Advertising
promoted the station on several billboards within the WCVZ
listening area in exchange for its airing the underwriting
messages. See Fuqua Communications, Inc., Memorandum
Opinion and Order, 30 FCC 2d 94, 97 (1971) (consideration
has been construed to involve many forms, including barter
of goods or services and ``trade-outs'').
18 See September 8th Response at 5.
19 See September 8th Response at 4.
20 See 47 U.S.C. § 503(b); 47 C.F.R § 1.80.
21 The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087, 17115 (1997)
(``Forfeiture Policy Statement''), recon. denied 15 FCC Rcd
303 (1999); 47 C.F.R. § 1.80(b).
22 Id.
23 47 U.S.C. § 503(b)(2)(D). See also Forfeiture Policy
Statement, 12 FCC Rcd at 17100 ¶ 27.
24 See, e.g., See, e.g., Minority Television Project, Inc.
(KMTP-TV), Notice of Apparent Liability for Forfeiture, 17
FCC Rcd 15646 (Enf. Bur. 2002), Forfeiture Order, 18 FCC Rcd
26611 (Enf. Bur. 2003) (application for review pending)
(where the Bureau found that such factors warranted a
substantial upward adjustment in the case of a first-time
violation).
25 Id. at 17 FCC Rcd 15646, ¶¶ 30-31.
26 See 47 C.F.R. § 1.1914.