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Before the
Federal Communications Commission
Washington, DC 20554
)
) File No. EB-05-IH-1078
In the Matter of
) NAL/Acct. No.
Cayuga County Community College 200932080001
)
Licensee of Noncommercial Educational Facility ID No. 9426
Station WDWN(FM) Auburn, New York )
FRN # 0003414620
)
)
FORFEITURE ORDER
Adopted: June 26, 2009 Released: June 26, 2009
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we impose a monetary forfeiture of $2,000
against Cayuga County Community College ("Cayuga" or "Licensee"),
licensee of noncommercial educational Station WDWN (FM), Auburn, New
York, ("Station"), for violating Section 399B of the Communications
Act of 1934, as amended (the "Act"), and Section 73.503(d) of the
Commission's rules by broadcasting advertisements over the Station.
I. background
2. On August 26, 2005, Mr. Jim Seward filed a complaint with the
Commission, alleging that noncommercial educational Station WDWN (FM) had
aired prohibited commercial announcements during its August 13, 2005,
broadcast of an Auburn Doubledays baseball game.
3. Following Mr. Seward's complaint, the Enforcement Bureau ("Bureau"), by
letter dated October 20, 2006, inquired of Cayuga concerning these
allegations. Cayuga responded on December 19, 2006, acknowledging that the
Station did air underwriting announcements on the alleged date in the
Complaint and that the underwriters listed therein "appear to be the same
list of underwriters that would have been included in the broadcast."
Cayuga contends that it did not receive consideration from any of the
for-profit entities for broadcasting the announcements, but that donations
of $100 each, per season, were made by the underwriters directly to the
Auburn Doubledays nonprofit baseball club to help defray their travel
expenses. Finally, after receiving the Bureau's inquiry, Cayuga claims
that it revised its practices for the inclusion of underwriting
announcements. On January 16, 2009, the Bureau issued a Notice of Apparent
Liability ("NAL") finding that the Licensee had broadcast prohibited
announcements in exchange for consideration. In so doing, the NAL found
that Cayuga had apparently violated the pertinent statute and Commission
rules. Additionally, the Bureau found that Cayuga's post-facto remedial
efforts were not mitigating. Consequently, the NAL issued a forfeiture of
$2,500 against Cayuga.
4. On January 26, 2009, Cayuga responded to the NAL. In its response,
Cayuga argues that the Bureau's finding is erroneous as to four of the ten
announcements cited in the NAL. Cayuga also urges the Commission to cancel
or substantially reduce the NAL's proposed forfeiture amount asserting
that it is unable to pay that amount and that the amount should reflect
its history of compliance with the Commission's rules.
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act, Section 1.80 of the
Commission's Rules, and the Commission's forfeiture guidelines set forth
in its Forfeiture Policy Statement. In assessing forfeitures, Section
503(b) of the Act requires that we take into account 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 other matters as justice may require. As discussed
further below, we have examined Cayuga's response to the NAL pursuant to
the aforementioned statutory factors, our rules, and the Forfeiture Policy
Statement, and find that cancellation or reduction of the forfeiture on
the basis of inability to pay is not appropriate in this case; nor are we
persuaded by Cayuga's arguments that the Bureau erred in its findings with
respect to four announcements at issue in the NAL. We find, however, that
a reduction is warranted based on Cayuga's good overall prior record.
A. Cayuga Willfully and Repeatedly Broadcast Advertisements in
Violation of Section 399B of the Act and Section 73.503 of the
Commission's Rules
6. 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. The pertinent statute
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, the Commission expects that licensees exercise
reasonable, "good faith" judgment in this area, and affords some latitude
to the judgments of licensees who do so.
7. Cayuga does not dispute the NAL's finding that six of the ten
announcements violated the Commission's underwriting rules and so we adopt
the NAL's apparent conclusion concerning those six announcements. Cayuga
does argue, however, that the Bureau erred in finding that the remaining
four announcements cited in the NAL, those made on behalf of Adelphia
Cable, Savannah Bank, Finger Lakes Bottling, and Bank of America, violated
the Commission's underwriting rules by promoting their respective
sponsors. With respect to the Adelphia and Savannah Bank announcements,
Cayuga argues that the announcements are permissible because they are
factual in nature and do not contain calls to action or promotional
language. Regarding the Finger Lakes Bottling announcement, Cayuga avers
that it is not violative of the rules because the word "refreshing" is not
a "hardsell adjective." Finally, Cayuga argues that the Bank of America
announcement is "entirely permissible" because it describes the role of
most banks. In conclusion, Cayuga admits that "some of the sample copy
listed on the NAL attachment is problematic but not as prevalent as the
NAL seems to indicate."
8. We disagree with Cayuga. We reject Cayuga's position that the Adelphia
Cable and Savannah Bank announcements are not improper because they are
factual. We have held previously that the "factuality" or "truth" of the
text of an announcement has no relevance to determining whether it
promotes a product, service, or business. Thus, even if the Adelphia Cable
and Savannah Bank announcements were accurate or "factual," that does not
preclude them from being promotional in character and thus prohibited. We
find that both announcements contain terms that attempt to favorably
distinguish the respective underwriters from their competitors. For
example, in the Adelphia Cable announcement, the words "specialized," and
"targeted" distinguish Adelphia Cable from competitors and seek to promote
its services. Likewise, the Savannah Bank announcement contains
references, such as "meets all your banking needs" and "banking the old
fashioned way," which also describe the underwriter in a comparative and
qualitative manner. Also, contrary to Cayuga's assertion, the Savannah
Bank announcement contains a prohibited call to action in inviting
listeners to "visit one of our four branches." With respect to the Finger
Lakes Bottling announcement, we find its references to Miller Beer as a
"cold refreshing beer" promote that product through use of qualitative
terms. Furthermore, the Bank of America announcement includes the terms
"flexible financing," which impermissibly seeks to induce patronage by
encouraging listeners to explore the bank's financing options. Thus, we
conclude that Cayuga has failed to establish that the NAL erred in its
findings respecting these four announcements and we adopt the apparent
conclusion contained in the NAL that these four announcements violated the
Commission's underwriting rules.
B. Cayuga Did Not Establish It Is Unable to Pay the Forfeiture Amount
9. With respect to Cayuga's claim of financial hardship, as clearly stated
in the ordering clause of the NAL, the Commission will not consider
reducing or canceling a forfeiture based on inability to pay unless the
licensee submits the following: (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. Commission precedent holds that any
claim of inability to pay must specifically identify the basis for the
claim by reference to the financial documentation submitted and that in
general, a licensee's gross revenues are the best indicator of its ability
to pay a forfeiture.
10. Cayuga has provided us with only the Station's budgetary information
and not that of the Licensee. Specifically, Cayuga filed a one-page
document reflecting the operating budget for the Humanities and
Telecommunications Division of the College. From that Division's budget,
Cayuga derives the Station's budget and asserts its claim of financial
hardship. Pursuant to Commission precedent, this scant information is
insufficient to allow us to assess whether the instant forfeiture would
place an undue financial hardship on Cayuga, or to evaluate the request
under relevant Commission precedent. Accordingly, lacking the necessary
financial information, we cannot conclude that cancellation or reduction
based on inability to pay is appropriate in this case.
11. Cayuga also asks that we consider reducing the forfeiture based on its
overall record of compliance with the Commission's rules. We have reviewed
our records and find no other violations against the Licensee. Under
similar circumstances we have reduced proposed forfeitures, and find that
doing so in this case is appropriate. Consequently, we reduce Cayuga's
forfeiture amount from $2,500 to $2,000.
IV. ORDERING CLAUSES
12. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended (the "Act"), and Section 1.80 of
the Commission's rules, Cayuga County Community College, IS LIABLE FOR A
MONETARY FORFEITURE in the amount of $2,000 for willfully and repeatedly
violating Section 399B of the Act, as amended, and Section 73.503(d) of
the Commission's Rules.
13. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) days of the release of this
Forfeiture Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act. 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 No. and FRN No. 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 24A (payment type code). Cayuga will also send electronic
notification on the date said payment is made to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov, and
Anita.Patankar-Stoll@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.
Please 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 Order shall be sent, by
Certified Mail/Return Receipt Requested, to Cayuga County Community
College, 197 Franklin Street, Auburn, New York 13021, and by regular mail
to its counsel, Cary S. Tepper, Esq., Booth, Freret, Imlay & Tepper, P.C.,
14356 Cape May Road, Silver Spring, Maryland 20904-6011.
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 of Jim Seward to the Enforcement Bureau, received August 26,
2005 ("Complaint") at 1.
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Cayuga, dated October 20, 2006
("LOI").
See Letter from Cary S. Tepper, Esq., Counsel to Cayuga, to Elizabeth H.
Valinoti, Assistant Division Chief, Investigations and Hearings Division,
Enforcement Bureau, dated December 19, 2006 ("LOI Response").
See LOI Response at 1.
See id. at 2.
See id. at 3-5.
See Cayuga County Community College, Notice of Apparent Liability for
Forfeiture, 24 FCC Rcd 248 (Enf. Bur. 2009) ("NAL").
See NAL, 24 FCC Rcd at 250-251.
See id. at 252.
See id.
See id.
See Cayuga County Community College, Response to the Notice of Apparent
Liability for Forfeiture, dated January 26, 2009 ("NAL Response").
See id. at 3.
See id. at 2-3.
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80.
See 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 (1997), recons. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
See 47 U.S.C. S: 503(b)(2)(E).
See 47 U.S.C. S: 399b(a).
See 47 U.S.C. S: 399b(b).
See Public Notice, In the Matter of the Commission Policy Concerning the
Noncommercial Nature of Educational Broadcasting Stations (1986),
republished, 7 FCC Rcd 827 (1992) ("Public Notice").
See id.
See Xavier University, Letter of Admonition (Mass Med. Bur. November 14,
1989), recons. granted, Memorandum Opinion and Order, 5 FCC Rcd 4920
("Xavier").
See NAL, 24 FCC Rcd at 254 (citing to the Adelphia Cable announcement,
"Targeted advertising through specialized channels such as ESPN. Jack and
John are available for advertising at [telephone number].").
See id. (citing to the Savannah Bank announcement, "Meets all your banking
needs. Visit one of our four branches in the Finger Lakes. Banking the old
fashioned way.").
See id. (citing to the Finger Lakes Bottling announcement, "Miller Beer is
a cold refreshing beer served at Falcon Park.").
See id. (citing to the Bank of America announcement, "Provides flexible
financing for policemen, firemen, nurses, and others in the community that
serve it so well.").
See NAL Response at 3.
See id.
Id.
Id.
Id.
See Window to the World Communications, Inc., Notice of Apparent Liability
for Forfeiture ,12 FCC Rcd 20239, 20241 n.2 (Mass Med. Bur. 1997),
Forfeiture Order, 15 FCC Rcd 10025 (Enf. Bur. 2000) ("WTTW"); 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 In the Matter of the Commission Policy Concerning the Noncommercial
Nature of Educational Broadcasting Stations (1986), Public Notice,
republished, 7 FCC Rcd 827 (1992) ("1986 Public Notice") (providing
examples of calls to action, such as "stop by our showroom").
See Commission Policy Concerning the Noncommercial Nature of Educational
Broadcast Stations, Memorandum Opinion and Order, 90 FCC 2d 895 (1982)
("1982 Policy Statement").
See, e.g., 1986 Public Notice, 7 FCC Rcd at 828 (noting that statements
such as "six months' free service," "a bonus available this week," and
"special gift for the first 50 visitors" are examples of impermissible
inducements); see also National Farm Workers Service Center, Inc., Letter,
9 FCC Rcd 6855 (Mass Med. Bur. 1994) (finding that statements such as
"special financing" and "different plans for financing," are also examples
of impermissible price information).
See NAL, 24 FCC Rcd at 253 P:15 (Enf. Bur. 2009).
See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7
FCC Rcd 2088, 2089 (1992).
See Washington and Lee University, Forfeiture Order, 23 FCC Rcd 15821,
15824 (Mass Med. Bur. 2008) (finding that the licensee's submission of a
one-page document stating its operating budget for four years and a
separate page noting the salaries of its General Managers was insufficient
to analyze an inability to claim defense because it provided only a
"snapshot of the Station's budget," and therefore, did not resolve the
question of the licensee's finances). In another case, the Commission
found that the licensee's submission of the College's overall financial
state and the annual budget of the Station was sufficient to establish a
claim of financial hardship. See Cornell College, Memorandum Opinion and
Order, 19 FCC Rcd 14586, 14587-88 (Enf. Bur. 2004).
See NAL Response at 2.
See, e.g., WMGO Broadcasting Corp., Inc., Forfeiture Order, 23 FCC Rcd
3754 (Enf. Bur., Invest. and Hearings Div., 2008).
See 47 U.S.C. S: 503(b), 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 399b; 47 C.F.R. S: 73.503(d).
See 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-1437
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Federal Communications Commission ________________ DA 09-1437