Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, DC 20554
)
) EB-05-IH-0974
In the Matter of
) Facility ID No. 31936
JONES COLLEGE
) NAL/Account No.
Licensee of Noncommercial Educational 200932080019
Station WKTZ-FM, Jacksonville, Florida )
FRN 0001824077
)
)
FORFEITURE ORDER
Adopted: July 31, 2009 Released: July 31, 2009
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we impose a monetary forfeiture of $4,500
against Jones College ("Jones" or "Licensee"), licensee of noncommercial
educational Station WKTZ-FM, Jacksonville, Florida ("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. This case arises from a complaint made to the Commission alleging that
noncommercial educational Station WKTZ-FM had broadcast prohibited
advertisements. Following the complaint, agency monitoring and recording
of station broadcasts was conducted on July 2 and 9, 2005. Thereafter, the
Enforcement Bureau ("Bureau") inquired of the Licensee concerning these
matters. Jones responded to the Bureau's letter of inquiry ("LOI") on
December 1, 2005.
3. On January 16, 2009, the Bureau issued a Notice of Apparent Liability
for Forfeiture ("NAL"), finding that the Licensee had apparently violated
the pertinent statute and Commission Rules, and proposing a monetary
forfeiture of $5,000. On February 13, 2009, Jones responded to the NAL,
alleging that the Bureau's ruling is erroneous and that the proposed
forfeiture should be cancelled or reduced.
III. DISCUSSION
4. 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 Jones's response to the NAL pursuant to
the aforementioned statutory factors, our Rules, and the Forfeiture Policy
Statement, and find that cancellation is not appropriate in this case.
Jones also argues in its response that the Bureau's NAL was time barred
and we reject that claim. We find, however, that a partial reduction in
the forfeiture amount is warranted because one announcement at issue in
the NAL aired permissibly on behalf of Vystar Credit Union, a nonprofit
organization.
A. The NAL was Timely Issued by the Enforcement Bureau.
5. First, we turn to Jones's argument that the NAL is time-barred. In
support, Jones points to Section 503 of the Communications Act and Section
1.80 of the Commission's Rules and contends that "because the NAL was
issued more than one year after the events complained of, the forfeiture
is barred by statute and by Commission rules."
6. The applicable statute, Section 503, provides in pertinent part:
No forfeiture penalty shall be determined or imposed against any person
under this subsection if-- (A) such person holds a broadcast station
license issued under Title III of this Act and if the violation charged
occurred--(i) more than 1 year prior to the date of issuance of the
required notice or notice of apparent liability; or (ii) prior to the date
of commencement of the current term of such license, whichever is
earlier[.]
In U.S. v. Evergreen Media Corporation of Chicago, AM ("Evergreen"), the
Court referred to the following excerpt from the Senate Commerce, Science
and Transportation Committee Report to interpret Section 503:
For Broadcast licensee S.1547, as reported, makes the limitations period
within which the FCC must issue a notice of forfeiture liability 1 year
from the date on which the violation occurred, or within the current
license term, whichever is the longer period, but not to exceed 3 years.
The Evergreen Court found that "when Congress said earlier [in Section
503], they meant later." Consequently, the Court found that a notice of
apparent liability that was issued over one year after the violation, but
before the expiration of the license term in which the violations
occurred, was timely. Likewise, in the matter at hand, while the NAL was
issued more than one year after the conduct in question, it was issued
during the current license term in which the conduct occurred. Therefore,
contrary to Jones's argument, the NAL was timely issued.
B. Jones College Has Willfully and Repeatedly Broadcast Advertisements in
Violation of Section 399B of the Act and Section 73.503 of the Commissions
Rules.
7. 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.
8. In its NAL Response, Jones again argues that it had an oral contract
with the producer of the program and not the sponsors of the program, and
that the third-party producer, Mr. Norm Vincent, did not provide the
Station direct consideration in exchange for airing the show. Furthermore,
the Licensee argues that the NAL incorrectly found that the programming
supplied by Mr. Vincent constituted consideration because "educational
programming cannot reasonably be considered remuneration." Consequently,
Jones argues that the broadcasts were not made in exchange for
consideration because none existed.
9. Jones points to no precedent to support its arguments. To the contrary,
the NAL's analysis is fully consistent with Commission precedent and
policy that programming itself may constitute legal consideration for
purposes of the statute. In this case, we find, contrary to Jones's
position, that it did receive consideration for the broadcast of the
announcements in the form of the program material. The Commission has
stated that "[c]onsideration . . . encompasses the contribution of
programming material and funds, goods and/or services used for
programming, as well as in kind contributions (e.g., studio equipment)
which frees station funds for programming purposes." Further, Jones's
contention that educational programming cannot be considered consideration
is unsupported. The Commission has drawn no distinction as to what type or
quality of programming should constitute consideration for purposes of the
statute.
10. Furthermore, the Commission has determined that lack of privity is not
a bar to finding that consideration was exchanged for the broadcast of an
announcement. Thus, Jones is not absolved from liability simply because a
third-party producer supplied the programming. In very limited instances,
the Commission has considered third-party produced programming to be a
mitigating, but not an exculpatory, fact. Those cases involved programming
that was supplied automatically through a satellite feed and announcements
that were broadcast only once. In this case, by Jones's own admission, the
third-party supplier produced and recorded the program, "Swingtime,"
approximately one week in advance of its ultimate broadcast, thus, the
program was not aired inadvertently. Furthermore, Jones continued to
broadcast the subject announcements in "Swingtime" multiple times over the
Station and, as such, its violation was not de minimis. Therefore, on
these facts, we do not consider mitigation appropriate.
11. Jones argues that the Station made "good faith" efforts to comply with
the Commission's Rules and that it, ultimately, terminated the program
after receipt of the Commission's November 10th LOI. As noted in the NAL,
post-facto remedial efforts are not mitigating. Furthermore, as the NAL
pointed out, many of the announcements at issue in the present case are
the same as those for which Jones has been previously admonished. Thus, we
conclude that Jones has failed to establish that the NAL erred in its
findings and we adopt the apparent conclusion contained in the NAL that
the Station aired announcements that violated the Commission's
underwriting rules in exchange for consideration.
12. Jones argues that the Vystar Credit Union announcement was aired
permissibly because the sponsor is a nonprofit organization. Jones
contends that announcements made on behalf of nonprofits are permissible
pursuant to the Commission's 1982 Policy Statement. There, the Commission
stated that "public broadcasters are authorized to air promotional
announcements sponsored by non-profit organizations." We note that in our
November 10th LOI, we specifically asked Jones to identify, for each
announcement, whether the requesting person or entity was a not-for-profit
enterprise. In its LOI Response, Jones failed to identify Vystar Credit
Union as a nonprofit entity at that time. The Licensee's carelessness in
its earlier filing resulted in an inaccurate conclusion in the NAL and
wasted government resources. Although we will exclude the Vystar Credit
Union announcement from our forfeiture calculation, we admonish Jones for
its negligent misrepresentation in violation of Section 1.17 of our Rules,
and caution the Licensee to exercise greater care in its responses to the
Commission in the future.
13. Finally, Jones asserts that "no penalty should be imposed, and that,
should any penalty have been justified, it should have been no more than a
nominal amount less than $500." We are unconvinced that either
cancellation or a minimal forfeiture would be appropriate in light of
Commission precedent in similar underwriting cases. We find, however, that
a partial reduction is appropriate based on our exclusion of the
non-profit Vystar Credit Union announcement noted above. Weighing the
single broadcast of the Vystar announcement against the overall number of
announcements and their respective repetitions satisfies us that a $500
reduction properly accounts for its exclusion. Accordingly, as a result of
our review of Jones's response to the NAL, and in view of the statutory
factors and the Forfeiture Policy Statement, we affirm the NAL and issue a
monetary forfeiture in the amount of $4,500.
IV. ORDERING CLAUSES
14. 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, Jones College IS LIABLE FOR A MONETARY FORFEITURE
in the amount of $4,500 for willfully and repeatedly violating Section
399B of the Act, as amended, and Section 73.503(d) of the Commission's
Rules.
15. IT IS FURTHER ORDERED that, pursuant to the authority delegated in
Section 0.111(a)(17) of the Commission's Rules, Jones College IS
ADMONISHED for violating Section 1.17(a)(2) of the Rules.
16. 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). Jones 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.
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent, by
Certified Mail/Return Receipt Requested, to Jones College, 5353 Arlington
Expressway, Jacksonville, Florida, 32211, and by regular mail to its
counsel, Christopher D. Imlay, 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 Case Report, prepared by the Tampa Field Office, Enforcement Bureau,
and dated September 19, 2005 ("Field Office Report"), at 2.
See id. at 2-3.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Jones College, dated November
10, 2005 ("November 10th LOI").
See Letter from Christopher D. Imlay, Esq., Counsel to Jones College, to
Kenneth M. Scheibel, Jr., Attorney, and William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, dated December
1, 2005 ("LOI Response").
See Jones College, Notice of Apparent Liability for Forfeiture, 24 FCC Rcd
231 (Enf. Bur. 2009) ("NAL").
See Jones College, Response to Notice of Apparent Liability for
Forfeiture, filed February 13, 2009 ("NAL Response").
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 NAL Response at 3.
Id.
See 47 U.S.C. S: 503(b)(6).
See U.S. v. Evergreen Media Corporation of Chicago, AM, 832 F. Supp. 1179,
1182 (N.D. Ill. 1993) ("Evergreen"). We note that the 1992 amendments to
Section 503 deleted the phrase: "but not to exceed 3 years." See
Telecommunications Authorization Act of 1992, Pub. L. No. 102-538, 106
Stat. 3533 (codified as amended at 47 U.S.C. S: 503 (b)(6)).
Evergreen, 832 F. Supp. at 1182.
See id.
See File No. BRED-20030930AXW (2004) (granting Jones's application for a
license renewal on January 22, 2004 for a term expiring on February 1,
2012).
See 47 U.S.C. S: 399b(a).
See id.
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, issued November 14, 1989
(Mass Med. Bur.), recons. granted, Memorandum Opinion and Order, 5 FCC Rcd
4920 (1990) ("Xavier").
See NAL Response at 4.
Id.
See id.
See Commission Policy Concerning the Noncommercial Nature of Educational
Broadcast Stations, Memorandum Opinion and Order, 90 FCC 2d 895, 911
(1982), recons. granted in part, Memorandum Opinion and Order, 97 FCC 2d
255 (1984) ("1982 Policy Statement").
See 1982 Policy Statement, 90 FCC 2d at 911.
See Minority Television Project, Inc., Forfeiture Order, 18 FCC Rcd 26611,
26615 (Enf. Bur. 2003) ("Minority Television") (finding that the Act does
not require the consideration involved to be supplied directly by the
sponsor or underwriter itself) (subsequent history omitted).
Cf. Minority Television, 18 FCC Rcd at 26616; Window to the World
Communications, Inc., Letter, 12 FCC Rcd 20239 (Mass Media Bur. 1997),
Forfeiture Order, 15 FCC Rcd 10025 (Enf. Bur. 2000) (forfeiture reduced).
See NAL Response at 5.
See id. at 4-6.
See NAL, 24 FCC Rcd at 236; see also Hispanic Broadcast System, Inc.,
Forfeiture Order, 20 FCC Rcd 12008, 12009 (Enf. Bur. 2005).
See NAL, 24 FCC Rcd at 235; see also Jones College, Memorandum Opinion and
Order, 18 FCC Rcd 24971 (Enf. Bur., Investigations & Hearings Div., 2003).
See NAL Response at 6.
See id.; see also 1982 Policy Statement, Memorandum Opinion and Order, 90
FCC 2d at 900 n. 16.
1982 Policy Statement, 90 FCC 2d at 901.
See November 10th LOI at 4.
See LOI Response at 3 (referring only to Fleet Landing and St. Catherine's
Laboure Manor as nonprofit organizations).
47 C.F.R. S: 1.17(a)(2) (prohibiting negligent misrepresentation in
filings with the Commission).
See, e.g., Benko Broadcasting Company, Memorandum Opinion and Order, 3 FCC
Rcd 6838, 6841 (Media Bureau, Video Services Div. 1988); Fatima Response,
Inc., Memorandum Opinion and Order, 14 FCC Rcd 18543, 18546 (1999),
recons. dismissed, 15 FCC Rcd 10520 (admonishing licensee for carelessness
in inaccurate statements made in a Commission filing). We find that an
admonishment, and not a monetary sanction, is appropriate based on the
particular circumstances of this case, but caution that future Section
1.17 violations by Jones College may result in the imposition of a
monetary forfeiture. Cf. Invision Industries, Inc., Notice of Apparent
Liability for Forfeiture and Order, 23 FCC Rcd 13095, 13099-104 (2008)
(imposing a $4,000 forfeiture for violation of Section 1.17(a)(2)
for failing to provide accurate information concerning material
information in an investigation that, if accurately produced in the first
instance, would have been against its interest, unlike the instant case,
where earlier accurate disclosure would have been exculpatory); Syntax
Brillian, Forfeiture Order and Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 6323 (2008). In both Invision and Syntax Brillian,
in contrast to the instant case, the extent and relative gravity of the
underlying substantive violations were more significant, the
investigations more complex, and the overall impact of the apparent
Section 1.17(a)(2) violations more serious.
NAL Response at 7.
See, e.g., Southern Rhode Island Public Radio Broadcasting, Inc., Notice
of Apparent Liability for Forfeiture, 15 FCC Rcd 8115 (Enf. Bur. 2000)
($1,000 forfeiture imposed for a first time violation); Southern Rhode
Island Public Radio Broadcasting, Inc., Order and Consent Decree, 23 FCC
Rcd 3769 (Enf. Bur. 2008) (directing Licensee to pay a settlement amount
of $7,500, which was based on among other factors, recognition of the
licensee's blemished prior history).
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).
47 C.F.R. S: 0.111(a)(17) (delegating to the Enforcement Bureau the
authority to issue admonishments).
See 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-1733
2
Federal Communications Commission ___________ DA 09-1733