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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
MINORITY TELEVISION PROJECT, )
INC. ) File Nos. EB-00-IH-0153
) and EB-01-IH-0652
Licensee of Noncommercial ) NAL/Acct. No. 200232080020
Educational ) Facility ID No. 43095
Television Station KMTP-TV, ) FRN No. 0005704366
San Francisco, California
ORDER ON REVIEW
Adopted: December 21, 2004
Released: December 23, 2004
By the Commission:
In this Order on Review, we deny an Application for Review
filed by Minority Television Project, Inc. (``Minority''),
pursuant to section 1.115 of the Commission's rules.1
Minority seeks review of a Forfeiture Order2 in which the
Enforcement Bureau (the ``Bureau'') imposed against Minority
a forfeiture of $10,000 for its willful and repeated
broadcast of advertisements over noncommercial educational
Station KMTP-TV, San Francisco, California, in violation of
section 399B of the Communications Act of 1934, as amended
(the ``Act''),3 and section 73.621(e) of the Commission's
rules.4 In so acting, the Bureau also dismissed, as moot,
Minority's related June 13, 2000, Request for Declaratory
Ruling.
In its Application for Review, Minority reiterates past
arguments raised at the Bureau level. We find that these
arguments were fully and correctly addressed in the Bureau's
Order except to the extent that we take the opportunity to
elaborate here on certain issues. Minority reiterates its
past argument that the Commission cannot sanction it for the
underwriting announcements at issue due to constitutional
and statutory provisions protecting the rights of foreign-
language speakers and viewers. It also again contends that
section 399B of the Act, as well as the Commission's rules
and policies promulgated thereunder, constitute
unconstitutional restrictions on commercial speech.5 We
reject these arguments. The current statutory scheme, rules
and policies governing noncommercial educational
broadcasters have been in place for more than twenty years.6
The Bureau fully considered language-specific issues in
reaching its findings in this proceeding.7 Furthermore, we
reject Minority's argument that the noncommercial
underwriting statute, rules and policy imposes an English-
only standard or discriminates against non-English speakers
or specific ideas in violation of the First Amendment or the
equal protection guarantee of the Due Process Clause of the
Fifth Amendment. To the contrary, neither section 399B of
the Act nor section 73.621(c) of the Commission's rules
prohibit the use of a foreign language or discriminate
against foreign language programming under the regulatory
scheme.8 Accordingly, we see no constitutional infirmity in
the regulatory scheme. Minority also again asks the
Commission to revisit its underwriting announcement
standards and to adopt ones that are ``capable of meaningful
prospective use.'' We agree with the Bureau's rejection of
this request, for the reasons explained in the Bureau's
Forfeiture Order.9 The standards are already clear.
We also reject Minority's claim here that the Bureau relied
on an inadequate translation of the broadcast material in
question. Our review of the record confirms that the Bureau
considered carefully the underwriting announcements at
issue, but, consistent with applicable Commission precedent,
rejected certain linguistic connotations Minority had urged
that the Commission accept. We note, however, that, in
evaluating the announcements, the Bureau also specifically
deferred to the translations provided by Minority itself,
except in those instances in which the licensee had failed
to provide any.10 Finally, although Minority claims that
its underwriting announcements were drafted in accordance
with standards enunciated and observed by Public
Broadcasting Service stations, that claim, even if true,
offers no defense or basis for mitigation. The practices
followed, or opinions rendered, by other broadcasters or
trade organizations are not binding on the Commission.11
Rather, licensees should rely only on the official
Commission sources and precedents themselves.12
Minority argues that the Bureau failed to accord proper
weight to two additional mitigating factors. First,
Minority argues that only the aggregate number of
announcements in question, 18, and not the number of times
that they were aired, 1,911, should be determinative in
setting the forfeiture amount.13 Second, it argues that the
continuing nature of the violation over the period 2000
through 2002 should be mitigated by the fact that the Bureau
had not advised Minority of its obligations by ruling on its
declaratory ruling request, which sought approval to air the
announcements in question. Minority cites no authority or
precedent for either of its contentions. We find that the
Bureau properly rejected the first argument for the reasons
stated in the Forfeiture Order, which are consistent with
precedent.14 Both the number of announcements and the
number of times they aired are relevant to the amount of the
forfeiture, and these factors were properly considered by
the Bureau.15 In any event, we agree with the Forfeiture
Order's alternative holding that a $10,000 forfeiture would
hardly be excessive even if the number of cited
announcements were fewer or if they had been run
substantially fewer times.16 As to the second argument, we
note that Commission precedent affords mitigation in
circumstances where licensees rely to their detriment on
official advice that later proves to have been erroneous or
incomplete.17 However, having not received any specific
Commission advice concerning the instant announcements in
this case, it was incumbent on Minority, as it is upon all
similarly situated noncommercial licensees, to consult
pertinent Commission precedent and to make its own good-
faith determinations as to the announcements' acceptability.
Ambiguity is not created simply by the filing of a request
for further guidance regarding a clear rule. For the
reasons set forth above, we conclude that Minority ignored
settled precedent and failed to properly exercise its good-
faith discretion in broadcasting the underwriting
announcements in question.18 Therefore, the fact that
Minority had earlier requested, but had failed to receive, a
declaratory ruling on the acceptability of the underwriting
announcements, is not a mitigating factor under the
circumstances of this case.
Upon review of the Application for Review and the entire
record herein, we conclude that Minority has failed to
demonstrate that the Bureau erred. The Bureau properly
decided the matters raised below, and we uphold its decision
for the reasons stated in its Forfeiture Order. 19
Accordingly, IT IS ORDERED, pursuant to section 1.115(g) of
the Commission's rules, 47 C.F.R. § 1.115(g), that the
Application for Review filed by Minority Television Project,
Inc. IS DENIED.
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 47 C.F.R. § 1.115.
2 See Minority Television Project, Inc. (KMTP-TV),
Forfeiture Order, 18 FCC Rcd 26611 (Enf. Bur. 2003)
(``Forfeiture Order'').
3 47 U.S.C. § 399b.
4 47 C.F.R. § 73.621(e).
5 In support, Minority cites several cases regarding the
limits placed on government, in varied contexts, when it
attempts to abridge free speech. See U.S. v. O'Brien, 391
U.S. 367 (1968); Yniguez v. Arizona, 69 F.3d 920, 941 (9th
Cir. 1995) (en banc) (reversed and remanded on other
grounds); Arizonians for Official English v. Arizona, 517
U.S. 1102 (1996), on remand at 118 F.3d 667 (9th Cir.
1997), remanded with instructions to dismiss at 119 F.3d
795 (9th Cir. 1997); and Virginia State Board of Pharmacy
v. Virginia Consumer Council, 425 U.S. 748 (1976).
6 See 47 U.S.C. § 399b, which was added by Public Law 97-3,
95 Stat. 357, 731, Aug. 13, 1981; 47 FR 36179, Aug. 19,
1982; and Commission's Policy Concerning the Noncommercial
Educational Nature of Educational Broadcasting Stations,
Memorandum Opinion and Order, 90 FCC 2d 895 (1982)
(``Policy Statement''), recon. granted in part, 97 FCC 2d
255 (1984).
7 See Forfeiture Order, 18 FCC Rcd 26611, 26614 at ¶ 10,
citing Licensee Responsibility to Exercise Adequate Control
Over Foreign Language Programs, Memorandum Opinion and
Order, 39 FCC 2d 1037 (1973).
8 Minority cites several cases regarding the limits placed
on government in varied contexts when it attempts to
abridge free speech. See n. 5, supra. We find these cases
inapplicable to the facts at issue here because they do not
address the statutory provision at issue and they interpret
a purported government limitation on the use of foreign
language, which is not the case here.
9 See Forfeiture Order, 18 FCC Rcd 26611, 26613 at ¶ 7.
10 See id., 18 FCC Rcd 26611, 26615 at ¶ 12. As correctly
noted by the Bureau in the Forfeiture Order, Minority
failed to provide specific translations for the Met-Life,
Scandinavian Furniture, Sincere Plumbing, and East West
Bank announcements. Id. Instead, Minority commented on
the translations provided by the complainant, which were
found at Attachment P to Minority's March 25, 2002,
response, and identified as Announcements 4, 5, 6 and 7.
See id., citing NAL at ¶¶ 23-25. We find that the Bureau
properly evaluated Minority's comments, and correctly
concluded that they did not alter the announcements'
overall promotional nature, which was demonstrated by the
announcements' linguistic and visual elements. See
Forfeiture Order, 18 FCC Rcd 26611, 26615 at ¶ 12.
11 See Board of Education of New York (WNYE-TV), Letter of
Caution, 7 FCC Rcd 6864 (MMB 1992).
12 Cf. Pine-Aire Broadcasting Corporation, Inc. (WRLS-FM),
Memorandum Opinion and Order, 4 FCC Rcd 1553 (1989)
(reliance on advice rendered by Commission officials may,
in appropriate circumstances, constitute a mitigating
factor to be considered in determining forfeiture amount).
13 Minority misstates the Forfeiture Order's holding. The
Bureau cited only 17 announcements in setting the
forfeiture amount at $10,000. See Forfeiture Order, 18 FCC
Rcd 26611, 26616-17 at ¶ 15.
14 See id.; 47 U.S.C. § 503(b)(2); note to 47 C.F.R. §
1.80(b)(4). Under section 503(b) of the Act, each
prohibited broadcast is deemed to constitute a separate
offense.
15 See Forfeiture Order, 18 FCC Rcd 26611, 26616-17 at ¶
15, n.55.
16 Id.
17 See Pine-Aire Broadcasting Corporation, Inc. (WRLS-FM),
supra.
18 See Xavier University, Memorandum Opinion and Order, 5
FCC Rcd 4920 (1990) (the Commission defers to the
``reasonable, good faith judgments'' exercised by licensees
and finds violations only where material is ``clearly''
promotional as opposed to merely identifying).
19 Minority further argues that the announcement made on
behalf of State Farm could not be deemed to violate section
399B of the Act because consideration was not supplied by
the sponsor to the broadcaster itself. First, we note that
Minority cites no statutory language or case law supporting
its assertion, and pertinent precedent has held precisely
otherwise. See Forfeiture Order, 18 FCC Rcd 26611, 26616
at ¶ 13, citing 1982 Policy Statement, 90 FCC 2d at 911-12,
¶¶ 26-28. Moreover, Minority ignores that the Bureau found
the circumstances surrounding Minority's broadcast of the
State Farm announcement to be mitigating, and did not
include that announcement in its determination of the
forfeiture amount.