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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) EB-07-IH-5286
LONG ISLAND UNIVERSITY PUBLIC RADIO ) NAL Account No.
NETWORK 201032080010
)
Licensee of Noncommercial Educational FRN No. 0015679806
Stations WLIU(FM), Southampton, NY and )
WCWP(FM), Brookville, NY Facility ID Nos. 38340
) and 38332
)
)
ORDER
Adopted: November 6, 2009 Released: November 6, 2009
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Long Island University
Public Radio Network ("Licensee"). The Consent Decree terminates an
investigation by the Bureau against the Licensee 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 the Licensee of underwriting acknowledgments over
Stations WLIU(FM), Southampton, NY and WCWP(FM), Brookville, NY (the
"Stations").
2. The Bureau and the Licensee 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 the Licensee 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 complaints and allegations
against the Stations and/or the Licensee before the Enforcement Bureau
related to the above-captioned investigation as of the date of this
Consent Decree ARE DISMISSED.
8. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent to Long Island University Public Radio Network c/o Lawrence
Bernstein, Esq., 3510 Springland Lane, N.W., Washington, D.C., by
first-class, certified mail, return receipt requested.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) EB-07-IH-5286
LONG ISLAND UNIVERSITY PUBLIC RADIO ) NAL Account No.
NETWORK 201032080010
)
Licensee of Noncommercial Educational FRN No. 0015679806
Stations WLIU(FM), Southampton, NY and )
WCWP(FM), Brookville, NY Facility ID Nos. 38340
) and 38332
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Long Island University Public
Radio Network (the "Licensee"), by their authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating the
Enforcement Bureau's above-referenced investigation into whether the
Licensee 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 the Licensee of underwriting acknowledgments over
its noncommercial educational Stations WLIU(FM), Southampton, NY and
WCWP(FM), Brookville, NY (the "Stations").
I. DEFINITIONS
2. 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. "Adopting Order" or "Order" means an Order by the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Complaints" means a series of complaints and pleadings filed by LI
Broadcasters, alleging violations of the Commission's Underwriting
Laws, including those dated July 3, 2007, August 30, 2007 and October
29, 2007, and all related information or allegations.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigation" means the investigation concerning the Complaints
commenced by the Bureau's February 5, 2008, and June 4, 2008, Letters
of Inquiry regarding whether the Licensee violated the Commission's
Underwriting Laws in connection with its operation of the Stations
during the period May 26, 2007 through June 4, 2008.
i. "Licensee" means Long Island University Public Radio Network and its
predecessors-in-interest and successors-in-interest as licensee of the
Stations.
j. "LI Broadcasters" means the anonymous complainant, which also referred
to itself as "Concerned Broadcasters of Long Island," purportedly a
group of commercial radio station operators who own and operate radio
stations in the same market as the Licensee.
k. "Parties" means the Licensee and the Bureau.
l. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
m. "Stations" means noncommercial educational Stations WLIU(FM),
Southampton, New York (Facility ID No. 38340) and WCWP(FM),
Brookville, NY (Facility ID No. 38332).
n. "Underwriting Laws" means 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).
II. BACKGROUND
3. 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 of their support, 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 and is consistent
with the Commission's Rules and decisions establishing compliant
underwriting announcements. Consequently, the Commission expects
licensees to exercise reasonable, "good faith" judgment in this area,
and affords some latitude to the judgments of licensees who do so.
4. On February 5, 2008, the Bureau inquired about a series of complaints
filed by LI Broadcasters, which allege that the Licensee had aired
advertisements in violation of the Underwriting Laws over the Stations
on May 27, 2007, July 13, 2007, July 18, 2007, July 19, 2007,
September 1, 2007 and September 2, 2007. The Bureau issued a LOI to
the Licensee, which directed the Licensee, among other things, to
submit a sworn written statement in response to questions relating to
allegations that the Licensee had aired announcements in violation of
the Underwriting Laws. The Bureau issued a Second LOI on June 4, 2008,
to clarify whether the material was broadcast over both Stations. The
Licensee responded to the LOI on March 12, 2008, and the Second LOI on
June 12, 2008. LI Broadcasters filed further pleadings in response to
the Licensee's LOI Response and Second LOI Response, to which the
Licensee filed additional responsive pleadings. Certain of the
announcements may have violated the Underwriting Laws because they
appear to exceed the bounds of what is permissible and within licensee
discretion under the Act and pertinent Commission precedent.
III. TERMS OF AGREEMENT
5. 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.
6. Jurisdiction. The Licensee 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.
7. 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.
8. 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 Complaints. In consideration for the
termination of said Investigation and dismissal of the Complaints, the
Licensee 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 the Licensee 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 the Licensee with respect to
the Licensee's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
authorizations.
9. Compliance Plan. For purposes of settling the matters set forth
herein, the Licensee 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. Licensee will use a multi-level review procedure for underwriting
content to be broadcast on the Stations. All scripts of announcements will
continue to be reviewed by the Licensee or its staff, prior to broadcast,
for compliance with the Underwriting Laws.
b. Licensee will train employees on acceptable underwriting content that
complies with the Underwriting Laws. Within thirty days of being hired by
the Licensee, any new Station employee will be trained as to acceptable
underwriting content that complies with the Underwriting Laws. In
addition, the Licensee's Stations employees will receive refresher
training, on an annual basis, regarding existing guidelines and, where
applicable, pertinent changes to the Underwriting Laws.
c. Licensee will make good faith efforts, with respect to independently
produced programming broadcast 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.
d. Licensee will also implement and maintain a plan to educate prospective
underwriters about appropriate underwriting content and how the Licensee
incorporates such underwriting content in the messages that it prepares
for underwriter approval and eventual broadcast. To that end, the Licensee
will summarize the Underwriting Laws for each client before it accepts any
contract with the prospective underwriter to air underwriting messages
over the Stations and prepares the underwriting message for the
underwriter's review. The Licensee will not broadcast any announcement
that does not comply with the Underwriting Laws, as interpreted from time
to time by the Commission, and subject to the Licensee's exercise of "good
faith" judgment as set forth in Paragraph 3, above.
10. Compliance Reports. Licensee 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 the Licensee, stating that the officer has
personal knowledge that the Licensee 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, Room 4-C330, 445 12th Street,
S.W., Washington, D.C. 20554.
11. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire three years after the Effective Date.
12. Voluntary Contribution. Licensee agrees that it will make a voluntary
contribution to the United States Treasury in the amount of Twenty Four
Thousand Dollars ($24,000). Such contribution shall be made in four
payments of six thousand dollars ($6,000) each. The first payment is to be
made within thirty (30) calendar days of the effective date, and the
balance paid in subsequent consecutive quarterly installments as set forth
above. The payments must be made by check or similar instrument, payable
to the order of the Federal Communications Commission. The payments must
include the NAL/Account Number and FRN Number referenced in the caption to
the Adopting Order. Payments by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payments by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis,
MO 63101. Payments by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payments 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). The Licensee will also send electronic notification
on the date said payments are made to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov, and
Jennifer.Lewis@fcc.gov.
13. Waivers. The Licensee 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. The Licensee 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 the
Licensee nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and the Licensee shall waive any statutory
right to a trial de novo. The Licensee 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.
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 the Licensee does not expressly consent),
that provision will be superseded by such Commission rule or Order.
15. Successors and Assigns. The Licensee 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
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. The Parties agree that this Consent
Decree is for settlement purposes only and that by agreeing to this
Consent Decree, Licensee does not admit or deny noncompliance, violation
or liability for violating the Act, the Commission's Rules or Orders in
connection with the matters that are the subject of this Consent Decree.
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.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
Elaine M. Crosson
Vice President for Legal Services
And University Counsel,
Long Island University
________________________________
Date
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503(d).
See 47 U.S.C. S: 154(i).
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 Jennifer Lewis, Assistant Chief, Investigations and
Hearings Division, Enforcement Bureau, to Long Island University Public
Radio Network, dated February 5, 2008 ("LOI"); see also Letter from
Jennifer Lewis, Assistant Chief, Investigations and Hearings Division,
Enforcement Bureau, to Long Island University Public Radio Network, dated
June 4, 2008 ("Second LOI").
See 47 U.S.C. S: 399b(a).
See 47 C.F.R. 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) ("Xavier").
See Complaint, filed with the Commission on July 3, 2007 ("First
Complaint"); Second Complaint, filed with the Commission on August 30,
2007 (the "Second Complaint"); Third Complaint filed with the Commission
on October 29, 2007 (the "Third Complaint").
See LOI, supra note 3.
See Second LOI, supra note 3.
See Letter from Lawrence Bernstein, Esq., to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated March 12, 2008 ("LOI Response");
Letter from Lawrence Bernstein, Esq., to Marlene H. Dortch, Secretary,
Federal Communications Commission, dated June 12, 2008 ("Second LOI
Response") (noting that, with a minor exception, the Second LOI Response
is duplicative of the LOI Response with respect to the announcements that
aired on WCWP(FM)).
See Reply to Response of Long Island University Public Radio Network,
filed with the Commission on March 24, 2008 ("LI Broadcasters Reply to LOI
Response"); Comments of Long Island University Public Radio Network, filed
with the Commission on April 2, 2008 ("LIU Comments to Reply to LOI
Response"); Reply to Comments of Long Island University Public Radio
Network, filed with the Commission on May 1, 2008 ("LI Broadcasters Reply
to LIU Comments"); Letter from Lawrence Bernstein, Esq. to Marlene Dortch,
Secretary, Federal Communications Commission, dated May 6, 2008 ("Motion
to Dismiss"); Opposition to Motion to Dismiss Any Subsequent Filings made
by LI Broadcasters, filed with the Commission on May 13, 2008 ("LI
Broadcasters Opposition to Motion to Dismiss"); Reply to Response of Long
Island University Public Radio Network, filed with the Commission on June
19, 2008 ("LI Broadcasters Reply to Second LOI Response").
See Xavier, supra note 9.
Federal Communications Commission DA 09-2146
1
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Federal Communications Commission ____DA 09-2146