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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No. EB-03-IH-0501
CHRISTIAN VOICE OF CENTRAL OHIO INC.
) NAL/Acct. No. 200532080016
Licensee of Formerly Noncommercial
Educational ) Facility ID No. 11126
Station WCVZ(FM), South Zanesville, ) FRN # 0002990828
Ohio
)
)
FORFEITURE ORDER
Adopted: May 9, 2008 Released: May 9, 2008
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. By this Forfeiture Order, we impose a forfeiture of $9,000 on
Christian Voice of Central Ohio, Inc. ("Christian Voice"), licensee of
formerly noncommercial educational television Station WCVZ(FM), South
Zanesville, Ohio, for its willful and repeated broadcast of
advertisements over the station, in violation of Section 399B of the
Communications Act of 1934, as amended (the "Act"), and Section
73.503(d) of the Commission's rules. We take this action pursuant to
47 U.S.C. S: 503(b)(1)(D) and 47 C.F.R. S: 1.80(f)(4).
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. 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 Station WCVZ(FM) as a
commercial facility. By letter dated June 17, 2004, the Bureau inquired of
the licensee concerning the allegations contained in the complaint. The
licensee responded to the Bureau's letter of inquiry on July 19, 2004.
Because the licensee's response failed to answer the specific questions
posed, among other things, the Bureau thereafter contacted the licensee's
counsel and directed that Christian Voice file a further response
providing such information, as required by the LOI. Christian Voice
further responded to the LOI on September 8, 2004.
3. By Notice of Apparent Liability for Forfeiture, issued December 7,
2004, the Chief, Enforcement Bureau, found that the licensee had
apparently violated the pertinent statute and Commission rules, and
proposed a monetary forfeiture of $20,000. On January 3, 2005, Christian
Voice responded to the NAL, maintaining that the Bureau's ruling is
erroneous, and that the proposed forfeiture should be either cancelled or
reduced.
III. DISCUSSION
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. As noted above, stations
such as then-noncommercial educational Station WCVZ(FM) may not air
advertisements. Although contributors to such 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 businesses.
5. Commission Standards. Specifically, such announcements may not contain
comparative or qualitative descriptions, price information, calls to
action, or inducements to buy, sell, rent or lease. Nevertheless, 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 that licensees exercise reasonable,
good-faith judgment in this area, and affords some latitude to the
judgments of licensees who do so.
6. The Announcements. Christian Voice maintains that the Bureau erred in
finding that three of the ten announcements cited in the NAL, viz., those
made on behalf of Tastee Freeze, The School House, and Prindle-GMAC Real
Estate, violate the Commission's underwriting rules by promoting their
respective sponsors. Christian Voice argues that those announcements are
specifically acceptable because they do not contain price information,
qualitative comparisons, or calls to action, and are "at least as
compliant with the rule [as those] found by the Commission to be compliant
in Xavier." On further consideration, we agree that the announcement made
on behalf of The School House, which identifies the underwriter's
available stock of "creative learning materials," was made consistent with
the licensee's discretion under Xavier. As to the arguments Christian
Voice has made concerning the other two announcements it cites, however,
we disagree, for the reasons set forth below.
7. The announcement made on behalf of Tastee Freeze characterizes the
underwriter's ice cream products in prohibited qualitative terms, by
noting that they are "tastefully decorated," and by attempting to induce
patronage by asking listeners whether they are "planning a special
occasion" which might require use of the underwriter's products. The
Prindle GMAC Real Estate announcement also impermissibly adverts to
favorable qualities possessed by the underwriter that seek to distinguish
its business from similar enterprises, and thus seeks to induce patronage
by stating that "we're all about family," and that "we love selling real
estate." In this case, the announcements in question characterize their
respective underwriters' products or services in qualitative terms or
otherwise attempt to induce business patronage, which references are
specifically forbidden. Such statements, in the context of this case, are
inconsistent with the identification-only purpose of underwriting
acknowledgments, and are not value neutral. In the instant case, the
references concerning the underwriter's real estate agency imply that the
agency possesses special business affinity or experience that attempts to
favorably distinguish it from others. That the cited underwriting
announcements do not also contain price information does not render them
acceptable, and is not a mitigating factor.
8. We further find no merit to Christian Voice's claim that the forfeiture
proposed is inconsistent with recent similar precedent. The forfeiture
amount proposed in the instant NAL reflects the substantial number of
announcements involved, i.e., nine, and the lengthy period of time during
which the violations occurred, i.e., 15 months. Those factors, taken as a
whole, compound the seriousness of this case and distinguish it from
others. In addition, Christian Voice's contention that "no civil penalty
is appropriate for a [noncommercial educational] station operating on a
non-reserved channel," as here, is baseless. The Commission has
specifically rejected this contention. Moreover, the case on which
Christian Voice attempts to rely for this proposition is inapposite. In
High I-Q, the Commission found that, in the context of a license renewal
proceeding, the licensee's premature commencement of commercial operations
on its noncommercial educational station, in conjunction with other
alleged rule violations, did not amount to disqualifying misconduct.
Noting that the licensee's broadcast of advertisements prior to its
receiving authorization to modify such facilities from noncommercial to
commercial operation would otherwise have subjected it to a monetary
forfeiture, the Commission declined to pursue such a penalty for
underwriting rule violations occurring several years prior because the
statute of limitations for doing so had already expired. The Commission is
not similarly constrained in this case, and Christian Voice has not
demonstrated otherwise. For the reasons set forth in the NAL, we conclude
that Christian Voice ignored settled precedent and failed to properly
exercise its good faith discretion in broadcasting the underwriting
announcements in question.
9. Nor do we find mitigating Christian Voice's claim that several local
charities, who allegedly rely on support from the station, will suffer
financially if the licensee is required to pay the instant forfeiture
amount. That claim, even if true, is irrelevant to the matters at issue in
this case. Moreover, we note that Christian Voice has neither provided
financial evidence suggesting that it is unable to pay the forfeiture, nor
argued that such payment would create an undue hardship threatening its
station's continued operation. However, in recognition of the fact that
Christian Voice has maintained heretofore a good overall compliance
record, we will reduce the forfeiture accordingly.
10. Forfeiture Calculation. 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
monetary forfeiture penalty. 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. The Commission will then issue a forfeiture if it finds
by a preponderance of the evidence that the person has violated the Act or
a Commission rule. In this case, the NAL found that Christian Voice
engaged in a conscious and deliberate decision to broadcast the
announcements at issue, a finding which the licensee does not dispute.
Accordingly, we find that the announcements aired in violation of 47
U.S.C. S: 399b and 47 C.F.R. S: 73.503(d) were willful.
11. The Commission's Forfeiture Policy Statement establishes a base
forfeiture amount of $2,000 for the broadcast of programming in violation
of enhanced underwriting requirements. It also specifies that the
Commission shall adjust a forfeiture based upon consideration of the
factors enumerated in Section 503(b)(2)(E), 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." The
statutory maximum forfeiture amount for the violation in this case is
$27,500. In this case, the NAL appropriately considered the circumstances
of this case, in particular the significant period of time during which a
significant number of prohibited announcements --nine-- were aired, and
the substantial number of repetitions involved, in concluding that an
upward adjustment of the forfeiture amount from the base amount of $2,000
is warranted. However, in recognition of the fact that Christian Voice has
maintained heretofore a good overall prior compliance record, and because
partial reduction is appropriate for excluding the announcement
permissibly made on behalf of The School House, we will reduce the
forfeiture amount proposed in the NAL from $20,000 to $9,000.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED, 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, that Christian Voice of Central Ohio, Inc.,
licensee of then-noncommercial educational Station WCVZ(FM), South
Zanesville, Ohio, FORFEIT to the United States the sum of Nine Thousand
Dollars ($9,000) for willfully and repeatedly broadcasting advertisements
in violation of Section 399B of the Act, 47 U.S.C. S: 399b, and Section
73.503(d) of the Commission's rules, 47 C.F.R. S: 73.503(d).
13. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The payment
must include the NAL/Account Number and FRN Number referenced above.
Payment by check or money order may be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire
transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC,
and account number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form 159,
enter the NAL/Account number in block number 23A (call sign/other ID), and
enter the letters "FORF" in block number 24A (payment type code).
Christian Voice will also send electronic notification on the date said
payment is made to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov and to
Kenneth.Scheibel@fcc.gov. Requests for full payment under an installment
plan should be sent to: Chief Financial Officer -- Financial Operations,
445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554. Christian
Voice may contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions regarding
payment procedures.
14. IT IS FURTHER ORDERED that a copy of this Forfeiture Order 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, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503(d).
See Letter from confidential complainant to Maureen Del Duca, Chief,
Investigations and Hearings Division, Enforcement Bureau, dated September
11, 2003 ("Complaint").
See File No. BMLH-20040415AEI, granted July 19, 2004 ("WCVZ Commercial
Application").
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").
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").
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").
See Christian Voice of Central Ohio, Inc., Notice of Apparent Liability
for Forfeiture, 19 FCC Rcd 23663 (Enf. Bur. 2004) ("NAL").
See id.
See Response to Notice of Apparent Liability, filed January 3, 2005
("January 3rd Response").
See 47 U.S.C. S: 399b(a).
See Commission Policy Concerning the Noncommercial Nature of Educational
Broadcasting Stations, Public Notice (1986), republished, 7 FCC Rcd 827
(1992) ("Public Notice").
See Xavier University, Letter of Admonition, issued November 14, 1989
(Mass Med. Bur.), recons. granted, Memorandum Opinion and Order, 5 FCC Rcd
4920 (1990).
Only ten announcements are at issue. We note that the NAL miscounted them
as eleven.
See September 8th Response at 9-10. Although Christian Voice generally
contends that the other announcements "arguably comply" with the
Commission's underwriting rule, it does not specify how. See id.
See January 3rd Response at 9, citing Xavier.
See, e.g., Xavier, supra, note 13, where the Commission found the
reference to the underwriter's "creative services for advertising,
marketing and training," to be non-promotional because employing creative
material is the stock-in-trade of all advertising agencies.
Minority TV NAL, 17 FCC Rcd 15646, 15652 (where airline underwriter was
depicted as "harmoniously-run carrier" through portrayal of its content
workers, message found to impermissibly encourage business patronage).
See Public Notice supra.
See id.
Cf. Xavier, supra, note 13.
January 3rd Response at 6-8.
See Family Life Educational Foundation (KOUZ(FM)), Notice of Apparent
Liability, 17 FCC Rcd 16137 (Enf. Bur. 2002) (forfeiture paid) ($2,000
forfeiture imposed for repeated violation involving 120 repetitions of one
message over a three-month period); Southern Rhode Island Broadcasting,
Inc., Notice of Apparent Liability, 15 FCC Rcd 8115 (Enf. Bur. 2000)
(forfeiture paid) ($1,000 forfeiture imposed for unspecified number of
repetitions of five prohibited messages over two-day period); Window to
the World Communications, Inc., Memorandum Opinion and Order, 15 FCC Rcd
10025 (Enf. Bur. 2000) (forfeiture reduced) ($2,000 forfeiture imposed for
unspecified number of repetitions of single prohibited message over an
unspecified period); Minority TV FO, 18 FCC Rcd 26611, 26614, P: 11 (Enf.
Bur. 2003) ($10,000 forfeiture imposed for 1,911 repetitions of seventeen
prohibited announcements over two-year period). Although Minority TV FO
presents many facts analogous to those of the instant case, it was decided
several years ago, and proposed a forfeiture amount that we believe is
insufficient when compared to recent similar precedent. Furthermore,
citing Fort Wayne Public Television, Inc., Memorandum Opinion and Order,
19 FCC Rcd 20869 (Enf. Bur. 2004) (forfeiture paid), Christian Voice also
attempts to rely on a case that was settled through consent decree. That
reliance is misplaced. The voluntary contribution amount set in a consent
decree case is affected by many additional factors not present in a
straight-forward forfeiture proceeding, including other negotiated terms
and the avoidance of further enforcement efforts by the Commission.
Accordingly, Fort Wayne, in which the Commission agreed to a minimal
voluntary contribution amount of $1,000 because the licensee had
voluntarily proposed acceptable settlement terms, is inapposite.
January 3rd Response at 1-4.
See Commission Policy Concerning the Noncommercial Nature of Educational
Broadcast Stations, First Report and Notice of Proposed Rulemaking, 69 FCC
2d 200, 230, P: 61 (1978) (the Commission held that noncommercial
educational stations operating on the non-reserved channels are also
required to follow the underwriting rules pertaining to similar stations
operating on the reserved bands).
See High I-Q Radio, Inc., Memorandum Opinion and Order, 19 FCC Rcd 7225
(2004).
See id. at 7235, P: 38; 7240, P: 51.
See Xavier, supra, note 13 (the Commission defers to the reasonable good
faith judgments exercised by licensees and finds violations where material
is clearly promotional as opposed to merely identifying).
See January 3rd Response at 4-6.
See id. at 4-5.
See 47 U.S.C. S: 503(b)(1)(B); see also 47 C.F.R. S: 1.80(a)(1). 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. S: 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, 16 FCC Rcd 1359 (2001)
(issuing a Notice of Apparent Liability for, inter alia, a cable
television operator's repeated signal leakage). "Repeated" merely 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, P: 5;
Callais Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Notice of Apparent Liability,
Forfeiture Order, 17 FCC Rcd 7589, 7591, P: 4 (2002) (forfeiture paid).
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087, 17113 (1997), recons. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement"); 47 C.F.R. S: 1.80(b).
Forfeiture Policy Statement, 12 FCC Rcd at 17100-101, P: 27.
Effective September 7, 2004, the Commission amended its rules to increase
the maximum penalties to account for inflation since the last adjustment
of the penalty rates. See Amendment of Section 1.80 of the Commission's
Rules, Order, 19 FCC Rcd 10945, 10946, P: 6 (2004). Under the revised
rules, for violations occurring after the effective date, the Commission
may propose forfeitures against broadcast licensees of up to $32,500 per
violation. This broadcast occurred before that effective date, so the
statutory maximum applicable here is $27,500.
See 47 C.F.R. S: 1.80(b)(4); see, e.g., Pittman Broadcasting Services,
LLC, Forfeiture Order, 19 FCC Rcd 15320, 15322 (Enf. Bur. 2004) (where
reduction based on prior record of compliance was found warranted).
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S:S: 0.111, 0.311, and 1.80.
See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 08-1092
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Federal Communications Commission DA 08-1092