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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-03-IH-0501
In the Matter of
) NAL/Acct. No.
CHRISTIAN VOICE OF CENTRAL OHIO, INC. 200532080016
)
Licensee of Formerly Noncommercial Facility ID No. 11126
Educational Station WCVZ(FM), South )
Zanesville, Ohio FRN No. 0002990828
)
)
MEMORANDUM OPINION AND ORDER
Adopted: October 21, 2008 Released: October 23, 2008
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny a Petition for
Reconsideration ("Petition") filed by Christian Voice of Central Ohio,
Inc. ("Christian Voice"), licensee of formerly noncommercial educational
broadcast Station WCVZ(FM), South Zanesville, Ohio (the "Station").
Christian Voice seeks reconsideration of a May 9, 2008, Forfeiture Order,
in which the Enforcement Bureau (the "Bureau") imposed a $9,000 forfeiture
against Christian Voice 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. In its Petition, Christian Voice contends that
the Bureau committed legal error by misapplying applicable precedent in
reaching its legal conclusions. At the same time, Christian Voice, in its
Petition, appears to concede that it violated our underwriting rules, but
argues that the forfeiture imposed is not commensurate with past
enforcement actions for similar violations. Christian Voice requests that
the monetary forfeiture be rescinded and replaced instead with an
admonishment. As discussed below, we deny the Petition and thereby affirm
the $9,000 forfeiture imposed by the Bureau.
II. DISCUSSION
2. The matter before us does not warrant reconsideration. Reconsideration
is appropriate only where the petitioner shows a material error or
omission in the original order or raises additional facts not known or
existing until after the petitioner's last opportunity to present such
matters. A petition that simply repeats arguments previously considered
and rejected will be denied. Christian Voice has failed to either
demonstrate error, or to present new facts or changed circumstances, as
required.
3. We reject Christian Voice's main contention that the Bureau erred in
finding that the announcements made on behalf of underwriters Tastee
Freeze and Prindle-GMAC Real Estate violate the Commission's underwriting
rules. We find that the Bureau properly concluded that the Station's
broadcasts of the Tastee Freeze and Prindle-GMAC Real Estate underwriting
announcements constituted announcements that induce patronage and advert
to favorable qualities possessed by the underwriter that seek to
distinguish its business from similar enterprises, in violation of Section
399B of the Act and Section 73.503(d) of the Commission's rules.
4. Christian Voice argues that two cases, WTTW and Family Vision, which
the Bureau distinguished from the present case in the Forfeiture Order,
actually support its position that the announcements made on behalf of
underwriters Tastee Freeze and Prindle-GMAC Real Estate did not violate
the Commission's underwriting rules. We disagree. Christian Voice notes
that, in WTTW, the Bureau determined that the phrase "excellent service"
passed muster under Xavier University because it was part of an
established corporate slogan. Christian Voice, however, makes no specific
arguments or comparisons which demonstrate that similar circumstances
apply to the announcements at issue here. In Family Vision, the
Commission concluded that the use of the phrase "daily lunch specials" in
a restaurant's underwriting announcement did not render the announcement
impermissible. The Commission found that the phrase simply denoted the
fact that there were varied offerings each day and that it was neither a
prohibited call to action nor an improper attempt to convey price
information. Christian Voice contends that the reference to "planning a
special occasion" in its Tastee Freeze announcement is similarly
permissible. We disagree. We concur in the Bureau's view that the
exhortation to listeners to consider Tastee Freeze when "planning a
special occasion" invited patronage, rather than merely describing a range
of standard services or products available from the underwriter
5. Moreover, as the Bureau found, both the Tastee Freeze and Prindle-GMAC
Real Estate announcements also contained promotional qualitative
characterizations that render them unacceptable. For example, the Tastee
Freeze announcements characterize the underwriter's ice cream products as
"tastefully decorated." Similarly, the Prindle-GMAC Real Estate
announcements aver to favorable qualities possessed by the underwriter
that seek to distinguish its business from similar enterprises, and thus
contain prohibited qualitative characterizations by stating that "we're
all about family," and that "we love selling real estate." Christian Voice
has offered no arguments to rebut this conclusion.
6. We also find unpersuasive Christian Voice's attempts to demonstrate
that the Bureau failed to apply appropriate precedent and to fully
consider the circumstances of this case in deciding the appropriate
forfeiture to impose. As reflected in the Forfeiture Order, the Bureau
took steps to make adjustments to the original forfeiture assessment after
full consideration of Christian Voices' response to the NAL. The Bureau
reassessed its analysis of certain announcements broadcast and agreed with
Christian Voice that the announcements that it aired on behalf of The
School House are permissible under Xavier University, and in keeping with
Commission policy that underwriting announcements may identify, but not
promote, their for-profit sponsors. The Bureau also took account of
Christian Voice's good overall prior compliance record and, based on these
considerations, reduced the forfeiture from $20,000 to $9,000.
7. Christian Voice argues, nonetheless, that the Bureau's decision is
inconsistent with the Commission's decision in Minority Television Project
("Minority TV"), because the licensee in that case, unlike Christian
Voice, had a greater ability to pay and gained greater monetary benefit
from airing violative announcements, yet the Commission only imposed a
$10,000 forfeiture. It also contends that the Bureau failed to acknowledge
the relatively modest nature of Christian Voice's facilities and market in
determining the amount of the forfeiture. Christian Voice concludes that
the $10,000 forfeiture imposed in that case cannot be reconciled with the
$9,000 forfeiture that the Bureau imposed in the instant case, and that
the Bureau therefore exceeded its authority in not fully considering the
impact of that Commission decision.
8. We agree that the Minority TV decision, issued by the Commission, binds
the Bureau; we find, however, that the Bureau's Forfeiture Order in this
case properly considered the relevant circumstances here as compared to
those in Minority TV. In Minority TV, the Commission imposed a $10,000
forfeiture for just over 1900 violations of the Commission's underwriting
rules over a two-year period, whereas in this case Christian Voice
broadcast over 3,000 impermissible announcements over a fifteen-month
period. Based on that comparison, we find the forfeiture imposed here to
be reasonable and consistent with our decision in Minority TV. Christian
Voice argues that the Bureau, in setting the instant forfeiture amount,
failed to consider the relative burden imposed by such penalty as compared
to licensees in similar cases -- namely, that the licensee in Minority
TV derived allegedly greater benefit from airing prohibited advertisements
and incurred less hardship paying the penalty assessed against it -- as
compared to other licensees, such as Christian Voice, that operate lesser
facilities in more modest markets. This argument is misplaced. These
factors may be relevant components of a licensee's contention that it
lacks the ability to pay a particular forfeiture, but Christian Voice has
not presented the documentation necessary to support such a contention in
this case. In sum, the Bureau properly considered the key determinants of
a forfeiture that were properly before it -- the promotional nature of the
announcements aired, the number of announcements, and how long and how
often they were repeated. On these grounds, as we have noted above, the
Bureau's forfeiture determination is consistent with Minority TV.
9. Christian Voice further argues that the Bureau, rather than relying on
Minority TV, should have relied instead on its prior decision in Family
Life in deciding the appropriate forfeiture amount. We disagree. In
Family Life, a $2,000 forfeiture was imposed against the licensee for the
broadcast of 120 violative announcements over a three-month period. The
far fewer number of violations over a much shorter period of time in that
case - as compared with Christian Voice's 3,000 violations aired over
fifteen months - justifies the higher forfeiture amount in this case.
10. Finally, Christian Voice attempts to rely on Fort Wayne, a case which
was settled through consent decree. That reliance is misplaced. The
voluntary contribution amount set in a consent decree case takes into
account many additional factors not present in a 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 voluntary contribution amount of $1,000 because the
licensee had voluntarily proposed acceptable settlement terms, is inapt to
the circumstances of this case. Given the substantially different postures
inherent in settlement and in forfeiture proceedings, we do not find
Christian Voice's argument persuasive. Therefore, after reviewing
Christian Voice's Petition, and the underlying record, we find no basis on
which to overturn the Bureau's prior decision and we conclude that the
decision to impose a $9,000 forfeiture was correct.
III. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED, pursuant to Section 1.106 of the
Commission's rules, 47 C.F.R. S: 1.106, that the Petition for
Reconsideration filed June 9, 2008, by Christian Voice of Central Ohio,
Inc. IS DENIED, that the Enforcement Bureau's May 9, 2008, decision IS
AFFIRMED.
12. IT IS FURTHER 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) within 20 days from the release date of this Memorandum
Opinion and Order 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, Kenneth.Scheibel@fcc.gov and
to Jennifer.Lewis@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 copies of this Memorandum Opinion and
Order shall be sent by Certified Mail, Return Receipt Requested, to
Christian Voice of Central
Ohio, Inc., c/o David J. Kaufman, Esq., Rini Coran, PC, 1615 L Street,
N.W., Suite 1325,
Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
See Christian Voice of Central Ohio, Petition for Reconsideration (filed
June 9, 2008) ("Petition"). The Enforcement Bureau has referred this
matter to the full Commission pursuant to Section 0.5(c) of the Rules. See
47 C.F.R. S: 0.5(c). See also 47 C.F.R. S: 1.106(a)(1).
In April 2004, after the complaint initiating this matter had been filed,
but before the Enforcement Bureau had inquired into the matter, Christian
Voice sought to modify the Station's noncommercial educational license so
that it could operate WCVZ(FM) as a commercial facility. See File No.
BMLH-20040415AEI, granted July 19, 2004.
See Christian Voice of Central Ohio, Inc., Forfeiture Order, 23 FCC Rcd
7594 (Enf. Bur. 2008) ("Forfeiture Order").
See 47 U.S.C. S: 399B.
See 47 C.F.R. S: 73.503(d) (prohibits noncommercial stations from
broadcasting promotional announcements on behalf of for-profit entities in
exchange for the receipt, in whole or in part, of consideration to the
licensee).
See Petition at i, 10 ("Even with respect to actual violations, the stated
reasons for distinguishing Christian Voice from other cases where other
violations were treated far more leniently were unavailing and cannot
withstand scrutiny.") (emphasis added).
See id.
See WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal Co.
v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966);
47 C.F.R. S: 1.106 (c).
See Infinity Broadcasting Operations, Inc., Memorandum Opinion and Order,
19 FCC Rcd 4216, 4216 (2004); Bennett Gilbert Gaines, 8 FCC Rcd 3986 (Rev.
Bd. 1993).
See Petition at 4-6. We note that the Bureau's $9,000 forfeiture was
issued in response to a finding of nine violative announcements broadcast
by Christian Voice. Christian Voice's Petition, however, appears to
dispute only two of the nine announcements.
See Forfeiture Order, 23 FCC Rcd 7594, 7596, citing Minority TV, infra n.
20 at 15652 (message found to impermissibly encourage business patronage
where airline underwriter was depicted as "harmoniously-run carrier"
through portrayal of its content workers).
See Window to the World Communications, Inc., Notice of Apparent
Liability, 12 FCC Rcd 20239, 20241 n.2 (Enf. Bur. 1997), Forfeiture Order,
15 FCC Rcd 10025 (Enf. Bur. 2000) ("WTTW").
See Family Vision Ministries, Memorandum Opinion and Order, 18 FCC Rcd
1418, 1419 n.5 (2003) ("Family Vision").
See Petition at 6.
In Xavier University, the Commission acknowledged that it can at times be
difficult to distinguish between language that identifies versus that
which promotes, and that it expects only that licensees exercise
"reasonable good faith judgment" in this area. See Xavier University,
Letter of Admonishment (Mass Med. Bur. Nov. 14, 1989), recons. granted,
Memorandum Opinion and Order, 5 FCC Rcd 4920 (1990)
(continued . . . .)
("Xavier"). See also Public Notice, "In the Matter of Commission Policy
Concerning the Noncommercial Nature of Educational Broadcasting Stations"
(April 11, 1986), reprinted in, 7 FCC Rcd 827 (1992) ("Enhanced
Underwriting and Donor Acknowledgment Statement").
See WTTW, 15 FCC Rcd at 10025-10026 P: 3.
See Family Vision, 18 FCC Rcd at 1419 n.5.
Id. at 1419 & n.5.
In this regard, The School House announcements briefly describe their
underwriter's products or services in value-neutral terms, and list
business addresses and telephone numbers, consistent with the
identification-only purpose of underwriting announcements.
See Minority Television Project, Inc., Notice of Apparent Liability for
Forfeiture, 17 FCC Rcd 15646 (Enf. Bur. 2002), Forfeiture Order, 18 FCC
Rcd 26611 (2003), pet. for rev. den'd, Order on Review, 19 FCC Rcd 25116
(2004), aff'd, Memorandum Opinion and Order, 20 FCC Rcd 16923 (2005)
(forfeiture paid) (collectively "Minority TV").
See Petition at 8.
See id. at 8-9.
See Christian Voice of Central Ohio, Inc., Notice of Apparent Liability,
19 FCC Rcd 23663, 23667 P: 15 (Enf. Bur. 2004) ("NAL"); In the Matter of
the Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087, 17105-107 (1997)).
See Family Life Educational Foundation, Notice of Apparent Liability for
Forfeiture, 17 FCC Rcd 16317 (Enf. Bur. 2003) ("Family Life").
See Petition at 7-8.
See Fort Wayne Public Television, Inc., Order, 19 FCC Rcd 20869 (Enf. Bur.
2004) ("Fort Wayne").
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)
Federal Communications Commission FCC 08-250
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Federal Communications Commission FCC 08-250