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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
WNYC Radio File No. EB-04-IH-0041
)
Licensee of Noncommercial Educational NAL/Acct. No. 200832080088
Stations WNYC(AM) and )
FRN No. 0004015020
WNYC-FM, New York, New York )
)
)
ORDER
Adopted: June 11, 2008 Released: June 11, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and WNYC Radio ("WNYC"). The
Consent Decree terminates an investigation by the Bureau against WNYC
for possible violations of section 399B of the Communications Act of
1934, as amended, and section 73.503(d) of the Commission's rules
regarding the broadcast by WNYC of underwriting acknowledgments over
Stations WNYC(AM) and WNYC-FM, New York, New York.
2. The Bureau and WNYC have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether WNYC possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that the third-party complaint against WNYC
Radio before the Enforcement Bureau related to the above-captioned
investigation as of the date of this Consent Decree IS DISMISSED.
8. IT IS FURTHER ORDERED that WNYC Radio shall make its voluntary
contribution to the United States Treasury, as specified in the
Consent Decree, by mailing a check or similar instrument payable to
the order of the Federal Communications Commission, 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). WNYC Radio 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.
9. IT IS FURTHER ORDERED that WNYC Radio will file reports with the
Commission ninety days after the Effective Date, twelve months after
the Effective Date, and upon expiration of the attached Consent
Decree, three years after the Effective Date. Each report shall
include a compliance certificate from an officer, as an agent of WNYC
Radio, stating that the officer has personal knowledge that WNYC Radio
has established operating procedures intended to ensure compliance
with this Consent Decree, together with an accompanying statement
explaining the basis for the officer's compliance certification. All
reports shall be submitted to the Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Washington, D.C. 20554.
10. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent to WNYC Radio, by first-class, certified mail, return
receipt requested, to WNYC Radio, One Centre Street, 26th Floor, New
York, New York 10007, and by certified mail, return receipt requested,
to its counsel, Richard D. Bodorff, Esq., Wiley Rein, 1776 K Street,
N.W., Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
WNYC Radio File No. EB-04-IH-0041
)
Licensee of Noncommercial Educational NAL/Acct. No. 200832080088
Stations WNYC(AM) and )
FRN No. 0004015020
WNYC-FM, New York, New York )
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and WNYC Radio ("WNYC" or the
"Company"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Enforcement Bureau's
investigation into whether WNYC violated section 399B of the
Communications Act of 1934, as amended, and section 73.503(d) of the
Commission's rules, in connection with the broadcast by WNYC of
underwriting acknowledgments over its noncommercial educational stations
WNYC(AM) and WNYC-FM, New York, New York.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Underwriting Laws" mean section 399B of the Communications Act of
1934, 47 U.S.C. S: 399b, and Section 73.503(d) of the Commission's
Rules, 47 C.F.R. S: 73.503(d).
e. "Stations" mean Stations WNYC(AM) (Facility ID No. 73357) and WNYC-FM
(Facility ID No. 73355).
f. "Complaint" means a third-party complaint alleging violations of the
Commission's Underwriting Laws, dated December 16, 2003, that may have
been received by, or is in the possession of, the Commission or
Bureau.
g. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
h. "Effective Date" means the date on which the Commission releases the
Adopting Order.
i. "Investigation" means the investigation commenced by the Bureau's
October 7, 2004, Letter of Inquiry regarding whether WNYC violated the
Commission's Underwriting Laws in connection with its operation of the
Stations during the period March 2003 and February 2004.
j. "WNYC" means WNYC Radio and its predecessors-in-interest and
successors-in-interest.
k. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
l. "Parties" mean WNYC and the Bureau.
m. "Rules" mean the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
II. BACKGROUND
2. Pursuant to section 399b(a) of the Act and section 73.503(d) of the
Rules, advertisements are defined as program material broadcast "in
exchange for any remuneration" and intended to "promote any service,
facility, or product" of for-profit entities. Section 399b(b)(2)
specifically provides that noncommercial educational stations may not
broadcast advertisements. Although contributors of funds 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. Specifically, such announcements may not contain
comparative or qualitative descriptions, price information, calls to
action, or inducements to buy, sell, rent or lease. 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, it expects that licensees
exercise reasonable, "good faith" judgment in this area, and affords
some latitude to the judgments of licensees who do so.
3. On October 7, 2004, the Bureau initiated an investigation.
Specifically, the Bureau investigated a complaint alleging that WNYC
had aired advertisements in violation of the Underwriting Laws. WNYC
responded on November 17, 2004, and July 1, 2005, informing the Bureau
that it aired, among others complained about, an underwriting
announcement on behalf of the executive search recruiter Korn/Ferry
International on the Stations during the period March 31, 2003,
through February 14, 2004. This announcement appears to have violated
the Underwriting Laws because they have exceeded the bounds of what is
permissible and within licensee discretion under the Act and pertinent
Commission precedent.
III. TERMS OF AGREEMENT
4. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
5. Jurisdiction. WNYC agrees that the Bureau has jurisdiction over it and
the matters contained in this Consent Decree and has the authority to
enter into and adopt this Consent Decree.
6. Effective Date: Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the FCC releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
7. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
Investigation and dismiss the Complaint. In consideration for the
termination of said Investigation and dismissal of the Complaint, WNYC
agrees to the terms, conditions, and procedures contained herein. The
Bureau further agrees that in the absence of new material evidence,
the Bureau will not use the facts developed in this Investigation
through the Effective Date of the Consent Decree, or the existence of
this Consent Decree, to institute, on its own motion, any new
proceeding, formal or informal, or take any action on its own motion
against WNYC concerning the matters that were the subject of the
Investigation. The Bureau also agrees that it will not use the facts
developed in this Investigation through the Effective Date of this
Consent Decree, or the existence of this Consent Decree, to institute
on its own motion any proceeding, formal or informal, or take any
action on its own motion against WNYC with respect to WNYC's basic
qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, WNYC agrees to maintain a Compliance Plan related to future
compliance with the Act, the Commission's Rules, and the Commission's
Orders. The Plan will include, at a minimum, the following components:
a. WNYC will continue to utilize a multi-level review procedure for
underwriting content to be aired on the Stations. In working with
prospective underwriters, the WNYC staff will continue to brief potential
donors on the Underwriting Laws, provide them with the current WNYC Copy
Guidelines, and work with them to fashion acceptable language.
b. WNYC will continue to train employees on acceptable underwriting
content that complies with the Underwriting Laws, as it has done in the
past, as described in its response to the Bureau's letter of inquiry in
connection with the Investigation, which response is incorporated herein
by reference.
c. WNYC will make good faith efforts, with respect to nationally
distributed programming aired on the Stations, to obtain from the
distributors of such programming the copy for underwriting announcements
contained in such programming in advance of such programming's broadcast,
for the purposes of independently reviewing such copy for compliance with
the Underwriting Laws.
9. Compliance Reports. WNYC will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after the
Effective Date, twenty-four months after the Effective Date, and upon
expiration of this Consent Decree, three years after the Effective Date.
Each compliance report shall include a compliance certificate from an
officer, as an agent of WNYC, stating that the officer has personal
knowledge that WNYC has established and maintained on an ongoing basis
operating procedures intended to ensure compliance with this Consent
Decree, together with an accompanying statement explaining the basis for
the officer's compliance certification. Each compliance report will
describe any significant difficulties the Licensee has encountered during
the reporting period in ensuring compliance with the Underwriting Laws,
what steps it has taken to resolve those difficulties, and the success of
those steps in doing so. All compliance reports shall be submitted to the
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554.
10. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire three (3) years after the Effective Date.
11. Voluntary Contribution. WNYC agrees that it will make a voluntary
contribution to the United States Treasury in the amount of Five
Thousand Dollars ($5,000.00). The payment in full will be made within
five (5) calendar days after the Effective Date of the Adopting Order.
The payment 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 in the
caption to the Adopting Order. 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). WNYC
Radio 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.
12. Waivers. WNYC waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Order adopting this Consent Decree, provided the Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. WNYC shall retain the right to challenge
Commission interpretation of the Consent Decree or any terms contained
herein. If either Party (or the United States on behalf of the
Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither WNYC nor the Commission shall contest the
validity of the Consent Decree or the Adopting Order, and WNYC shall
waive any statutory right to a trial de novo. WNYC hereby agrees to
waive any claims it may otherwise have under the Equal Access to
Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et seq., relating
to the matters addressed in this Consent Decree.
13. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Adopting Order or
Consent Decree, but rather the entire Adopting Order or Consent Decree
shall be construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and obligations
of the Parties shall be construed and enforced accordingly. In the
event that this Consent Decree in its entirety is rendered invalid by
any court of competent jurisdiction, it shall become null and void and
may not be used in any manner in any legal proceeding.
14. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which WNYC does not expressly consent)
that provision will be superseded by such Commission rule or Order.
15. Successors and Assigns. WNYC agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
16. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
19. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Laura R. Walker
President and Chief Executive Officer
WNYC Radio
________________________________
Date
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503.
See 47 U.S.C. S: 154(i), 503(b).
See 47 C.F.R. S:S: 0.111, 0.311.
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503(d).
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to WNYC, dated October 7, 2004
("October 7th LOI"); Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, to WNYC, dated
June 21, 2005 ("June 21st LOI").
See 47 U.S.C. S: 399b.
See 47 U.S.C. S: 399b(a).
See 47 U.S.C. S: 399b(b)(2).
See Commission Policy Concerning the Noncommercial Nature of Educational
Broadcasting Stations, Public Notice (1986), republished, 7 FCC Rcd 827
(1992) ("Public Notice").
See id.
See Xavier University, Letter of Admonition, issued November 14, 1989
(Mass Med. Bur.), recons. granted, Memorandum Opinion and Order, 5 FCC Rcd
4920 (1990).
See Letter from Ivan Zimmerman, Esq., to Kenneth M. Scheibel, Jr.,
Attorney, Investigations and Hearings Division, Enforcement Bureau, dated
November 17, 2004 ("November 17th Response") at 3.
See Xavier University, supra, note 9.
Federal Communications Commission DA 08-1350
2
Federal Communications Commission DA 08-1350