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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) EB-06-IH-5642
In the Matter of
) Facility ID No. 36478
Lancaster Educational Broadcasting
Foundation ) NAL/Account No.
200932080028
Licensee of Noncommercial Educational )
Station WFCO(FM), Lancaster, Ohio FRN 0003018645
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 10, 2009 Released: February 10, 2009
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Lancaster Educational Broadcasting Foundation ("Lancaster"), licensee
of noncommercial educational Station WFCO(FM), Lancaster, Ohio, has
apparently violated Section 399B of the Communications Act of 1934, as
amended (the "Act"), and Section 73.503 of the Commission's rules, by
willfully and repeatedly broadcasting prohibited advertisements. Based
upon our review of the facts and circumstances of this case, we conclude
that Lancaster is apparently liable for a monetary forfeiture in the
amount of seven thousand five hundred dollars ($7,500).
II. BACKGROUND
2. This case arises from a complaint made to the Commission alleging that
noncommercial educational Station WFCO(FM) broadcast prohibited
underwriting announcements during its broadcast of Capital University
college football games during the 2006 season. Thereafter, the Bureau
inquired of the licensee concerning the allegations contained in the
complaint. Lancaster responded to the LOI on September 14, 2007.
III. DISCUSSION
3. Under Section 503(b)(1) of the Act, any person who is determined by the
Commission to have willfully or repeatedly failed to comply with any
provision of the Act or any rule, regulation, or order issued by the
Commission shall be liable to the United States for a forfeiture penalty.
Section 312(f)(1) of the Act defines willful as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. The legislative history to Section 312(f)(1) of the
Act clarifies that this definition of willful applies to both Sections 312
and 503(b) of the Act, and the Commission has so interpreted the term in
the Section 503(b) context. The Commission may also assess a forfeiture
for violations that are merely repeated, and not willful. "Repeated"
means that the act was committed or omitted more than once, or lasts more
than one day. In order to impose such a penalty, the Commission must issue
a notice of apparent liability, the notice must be received, and the
person against whom the notice has been issued must have an opportunity to
show, in writing, why no such penalty should be imposed. The Commission
will then issue a forfeiture if it finds, by a preponderance of the
evidence, that the person has willfully or repeatedly violated the Act or
a Commission rule. As described in greater detail below, we conclude under
this procedure that Lancaster is apparently liable for a forfeiture in the
amount of seven thousand five hundred dollars ($7,500) for its apparent,
willful and repeated violations of Section 399B of the Act and the
Commission's underwriting rules.
A. Lancaster Has Willfully and Repeatedly Broadcast Advertisements in
Apparent Violation of Section 399B of the Act and Section 73.503 of the
Commission's Rules.
4. 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, it expects that licensees exercise reasonable,
"good faith" judgment in this area, and affords some latitude to the
judgments of licensees who do so.
5. At issue here are twenty underwriting announcements made by Lancaster
on behalf of Wesbanco, and others, that Lancaster admits were broadcast by
its station during the period September 2, 2006, until December 2, 2006.
Lancaster acknowledges that it received monetary consideration in exchange
for airing these announcements. Lancaster also represents that the
underwriters are for-profit entities, and that the messages were repeated
many times during the stated period.
6. After careful review of the record in this case, we find that the
announcements set forth in the attached transcript were made and aired on
behalf of for-profit entities and apparently exceed the bounds of what is
permissible under Section 399B of the Act and the Commission's pertinent
rules and policies, in light of the "good faith" discretion afforded
licensees under Xavier. We conclude that they appear to constitute
prohibited advertisements because they invite, urge or seek to induce
business patronage, distinguish favorably the respective underwriters from
their competitors, or otherwise describe their underwriters through
qualitative references. Specifically, several of the announcements
impermissibly refer to their respective underwriters' services or products
in comparative terms concerning the variety of product or service choices
available, memorable quality, low prices, better results, size and luxury,
or the relative quality of dining or entertainment. Several announcements
impermissibly refer to other convenient features that their underwriters'
products or services possess, including the availability of credit, loans,
discounts, or various payment options. Finally, still other announcements
improperly seek to encourage business patronage. None of the foregoing
broadcast references are consistent with a noncommercial broadcaster's
"good faith" discretion under Xavier, because each, in the context
presented, refers to specific qualities or attributes of their respective
underwriters that are not necessarily possessed by competitors. Thus,
announcements that contain such references impermissibly seek to
distinguish favorably their underwriters from others.
7. Lancaster claims that it has "contacted attorneys to get advice as to
what can be or cannot be included in a sponsorship spot." Lancaster does
not indicate, however, when it sought such advice, or provide evidence
supporting any claim that it disclosed its violations to the Commission or
implemented corrective measures prior to the staff's investigation of this
case. Consequently, no claim for mitigation under these factors is
available in this case.
B. Proposed Action
8. Under Section 503(b)(1) of the Act, any person who is determined by the
Commission to have willfully or repeatedly failed to comply with any
provision of the Act or any rule, regulation, or order issued by the
Commission shall be liable to the United States for a forfeiture penalty.
The Commission's Forfeiture Policy Statement establishes a base forfeiture
amount of $2,000 for violation of the enhanced underwriting requirements.
The Forfeiture Policy Statement also provides that the Commission shall
adjust a forfeiture based upon consideration of the factors enumerated in
Section 503(b)(2)(E), such as "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 such other
matters as justice may require."
9. In this case, it appears that from September 2006 through December
2006, Lancaster willfully and repeatedly broadcast twenty separate
advertisements in violation of Section 399B of the Act and Section
73.503(d) of the Commission's rules. We believe that a substantial
forfeiture is necessary because of the large number of announcements in
question, coupled with the significant number of repetitions, over an
extended period of time. Based on all the circumstances, the period of
time over which the prohibited announcements were aired, the number of
announcements at issue, and after examining forfeiture actions in other
recent underwriting cases, we believe that a forfeiture of seven thousand
five hundred dollars ($7,500) is appropriate. Accordingly, applying the
Forfeiture Policy Statement and the statutory factors to this case, we
conclude that Lancaster is apparently liable for a forfeiture in the
amount of seven thousand five hundred dollars ($7,500) for apparently
violating the Commission's underwriting rules.
IV. ORDERING CLAUSES
10. ACCORDINGLY, 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, Lancaster Educational Broadcasting Foundation, licensee of
noncommercial educational Station WFCO(FM), Lancaster, Ohio, is hereby
NOTIFIED OF ITS APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand five hundred dollars ($7,500) for willfully and repeatedly
broadcasting advertisements in violation of Section 399B of the Act, and
Section 73.503 of the Commission's rules, during the period September 2006
through December 2006.
11. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within 30 days of the release of this Notice, Lancaster SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed forfeiture.
12. 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[s] 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). 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.
Lancaster Educational Broadcasting Foundation will also send electronic
notification on the date said payment is made to Hillary.DeNigro@fcc.gov,
Kenneth.Scheibel@fcc.gov, and Anita.Patankar-Stoll@fcc.gov.
13. The response, if any, must be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W, Room 4-C330, Washington
D.C. 20554 and SHALL INCLUDE the NAL/Acct. No. referenced above. The
Licensee shall also, to the extent practicable, transmit a copy of the
response via e-mail to Hillary.DeNigro@fcc.gov, Kenneth.Scheibel@fcc.gov,
and Anita.Patankar-Stoll@fcc.gov.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the respondent submits: (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. Any claim
of inability to pay must specifically identify the basis for the claim by
reference to the financial documentation submitted.
15. IT IS ALSO ORDERED that the complaint IS GRANTED to the extent
indicated herein and IS OTHERWISE DENIED, and the instant complaint
proceeding IS HEREBY TERMINATED.
16. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail/Return Receipt Requested, to Lancaster Educational
Broadcasting Foundation, 201 South Broad Street, Suite 301, Lancaster,
Ohio 43140.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
ATTACHMENT
The following text was transcribed from underwriting announcements
broadcast over noncommercial educational Station WFCO(FM), Lancaster,
Ohio, during the period September 2, 2006 until December 2, 2006:
1. WESBANCO (2:08 - 2:37) - (29 seconds)
Long on ideas and plans but short on cash? Look no further than your own
home. With the Wesbanco home equity line of credit you can borrow up to 90
percent of the equity in your home at a competitively low interest rate.
It provides the ultimate flexibility for your borrowing needs and tax
advantages not available on other types of credit because in most cases
the interest on home equity lines of credit is tax deductible. Call
Wesbanco for complete details on all of our home equity products. Wesbanco
Bank Inc. Member FDIC, Equal Housing Lender. Consult your tax adviser
regarding deductibility of interests.
2. STAY AT THE AIRPORT (2:38 - 3:06) (28 seconds)
A good night's sleep is closer than you think. Family and friends can stay
just five minutes away from Capital University at the Columbus Airport
Hotels. Club sponsors for the Capital Crusaders. Your best hotel choices
are right here at the airport.
Concourse Hotel. Holiday Inn Hotel and Suites. Hampton Inn. Hilton Garden
Inn. Comfort Suites and Cross Country Inn. Staying at these airport hotels
offers convenience like no other accommodations in town. Call the airport
hotel of your choice. For reservations ask for the special capital rate or
visit online at stayattheairport.com.
3. TIME WARNER (3:08 - 3:58) (50 seconds)
SPEAKER 1: Honey, remember that really great idea I came up with?
SPEAKER 2: You mean Time Warner's great idea.
SPEAKER 1: Yeah, Home Phone Service, Road Runner Lite, and Cable TV. Well,
now that we have unlimited calling anywhere in the U.S. and Canada, we
spend a lot of money right.
SPEAKER 2: Yeah.
SPEAKER 1: And with Time Warner's high speed Internet service we save both
time and money.
SPEAKER 2: All right.
SPEAKER 1: Plus with Time Warner's standard cable service we get the most
popular channels.
SPEAKER 2: Okay, where is this going?
SPEAKER 1: More like where are we going?
SPEAKER 2: Were you?
SPEAKER 1: Look, with Time Warner Cable, Road Runner Lite, and digital
phone service we are saving a bundle.
SPEAKER 2: (inaudible) a bundle.
SPEAKER 1: So, you can take your bundle of joy on a fabulous vacation.
SPEAKER 2: You are one clever little bundle.
SPEAKER 1: I -- with all the Time Warner.
SPEAKER 1: Call Time Warner at 481-5320. Limited time offer. New customers
only. Some restrictions apply. Other money saving bundle packages are also
available. Call 481-5320. Home and your TV has never looked or sounded
better.
4. BYERS IMPORTS (4:12 - 4:42) (30 seconds)
SPEAKER 1: Now that people are driving the new Volkswagen Jetta, which
offers more of everything, they are not so willing to accept less in other
areas of life.
SPEAKER 2: I thought these tickets were Row Three.
SPEAKER 1: No, Level Three.
SPEAKER 2: I can't even see the van, it looks like a puppet show.
SPEAKER 1: But look un-obstructive view of the jumbo truck.
SPEAKER 2: Huh-uh.
SPEAKER 1: The new Jetta so much more room, power and luxury. You will
have a hard time settling for less. To see for yourself, come drive it.
You will get it. Visit Byers Imports at 401 North Hamilton, in Columbus.
5. CINTAS (4:43 - 5:12) (29 seconds)
SPEAKER 1: This is a true story the people telling it aren't actors they
are a Cintas (phonetic) (inaudible) employee and his customer.
SPEAKER 2: I just cashed my paycheck and stuck the entire $500 in my
uniform. It wasn't until I got home that I realized I never took the money
out.
SPEAKER 3: We both thought the money was gone. But he told me to check the
back pocket and there it was.
SPEAKER 2: I should have realized I wasn't dealing with an ordinary
company. Not only did Ken find my money he delivered it in person.
SPEAKER 1: Cintas employees put integrity above all else. At Cintas great
people make a great company.
6. KROGER (5:13 - 5:41) (28 seconds)
SPEAKER 1: The yellow tags are what I look for. Tells me what's on sale.
SPEAKER 2: If I go down an aisle I know I need something and I look to see
where the yellow is.
SPEAKER 1: Look for the yellow tags at Kroger, where sale prices and
everyday low prices on the items you buy most.
SPEAKER 2: I found them pretty much on everything, whether it is facial
tissue or paper towels.
SPEAKER 1: Milk and the cheeses and things like that.
SPEAKER 2: Something has always got a yellow tag on it.
SPEAKER 1: Go Krogering, the better way to shop.
7. GAMEDAY MANAGEMENT (7:36 - 8:05) (29 seconds)
Gameday Management is proud to bring the following sporting events to the
airwaves. Gameday Management is an independent sports marketing firm
specializing in sports marketing and events, corporate sponsorships, and
sports management. You too can be a corporate partner and join our
broadcast production. Call 614-759-9662. Partner with Gameday Management
and achieve better results with your sports marketing dominance.
614-759-9662. Gameday Management.
8. CORNA/KOKOSING CONSTRUCTION COMPANY (8:06 - 8:35) (29 seconds)
Corna/Kokosing Construction Company is proud to support the Capital
University Crusaders. The Corna/Kokosing team understands that integrity,
commitment and passion produce winning results. Like Capital University,
we strive for excellence on and off the field. One example of
Corna/Kokosing's legacy of excellence is Bernlohr Stadium the home of the
Crusader. Discover how Corna/Kokosing can be your winning team by logging
on to www.corna.com Corna/Kokosing Construction Company. Demanding
integrity and quality in everything we do.
9. GRAETER'S (8:36 - 9:05) (29 seconds)
After the game there is the Graeter's ice cream at Bexley. Enjoy the
Capital Crusaders Sundae. Two scoops of black raspberry chip ice cream
with hot fudge topping, fresh whipped cream and sprinkles. A great setting
for a great university. With 11 Columbus locations it's easy to take your
favorite Graeter's with you wherever you go. Let us pack your favorite
flavors in our handy, reusable inflated coolers, guaranteed to stay frozen
for 24 hours. Stop by or call our Bexley location at 236-2663. Welcome to
the home of the irresistible ice cream. It's Graeter's ice cream.
10. OLD BAG OF NAILS (10:08-10:37) (29 seconds)
Looking for the perfect place to eat after the big game? Look no further
than the Old Bag of Nails with eight great Columbus locations. Be sure to
try our signature fish and chips, the best in Ohio. Don't forget about our
juicy steaks, burgers, wings, or bite into our Irish favorite Corned Beef
and Hash. Capital fans, be sure to take advantage of our weekend games
specials. Visit our Bexley location on the corner of Broad Street and
Nelson. Think of the Old Bag of Nails for your post-game fun.
11. MCDONALD'S SNACK WRAP (11:08-11:36) (28 seconds)
SPEAKER 1: Hey Harold, we have to put you in a smaller office.
HAROLD: Thanks, I didn't have too much space.
SPEAKER 1: Well, you are being demoted.
HAROLD: Get my desk in my new office?
SPEAKER 1: It looks like somebody missed snack time.
SPEAKER 1: Refuel with a new way to snack. Introducing, Mc Donald's Snack
Wrap, tender juicy warm, all-white premium chicken breast meat with crisp
lettuce, cheddar jack cheese and zesty ranch sauce, wrapped in a soft
flour tortilla
HAROLD: My desk doesn't fit.
SPEAKER 1: For some participation, you have very little time off.
12. PERSONAL TOUCH PARTY RENTALS & EVENTS (13:06-13:40) (34 seconds)
MS. WHITTINGTON: Sunny days, cool nights, fall is in the air and it's time
for fall sports. Hi, I'm Karol Whittington from Personal Touch Party
Rentals & Events. Whether you are tailgating a football field, walking the
golf course, or watching your favorite volleyball team, it's time to think
about fall entertaining. We can help you with tents, canopies, tables and,
chairs. Your event will be one to remember when you add that personal
touch. Personal Touch Party Rentals and Events is located at 978 Ety Road
in Lancaster, 689-6991. Personal Touch Party Rentals and Events is the
proud sponsor of Lancaster and Fairfield County sports on WFCO 90.9 FM
13. PAPA JOE'S PIZZA (15:47-16:16) (29 seconds)
Crusader fans, a legendary team deserves a legendary pizza. Papa Joe's,
home of the two-foot party pizza and the Rich Boy Sub has been serving
Crusader fans for 40 years with their large thin crust pizzas loaded with
your choice of toppings. Save your Capital game ticket to receive your
Crusader's Special. Visit us at any of our eight Papa Joe's, Columbus area
locations or call us at 444-6868. That's 444-6868. Papa Joe's, the
official pizza of Capital University athletics, and a classic since 1963.
14. STATE FARM AGENT TERESA BUSH (16:16-16:45) (29 seconds)
What is a good neighbor? It's someone nearby, who helps make your life a
little easier. It's State Farm agent Theresa Bush. She takes the time to
understand your insurance and financial needs. So whether you are
preparing for your child's college education, or planning for retirement,
get the kind of help you would expect from a good neighbor. Visit State
Farm agent Theresa Bush at 2284 East Main Street in Bexley.
15. SIGNS BY TOMORROW (17:04-17:31) (27 seconds)
On the playing fields, the Crusaders boast an all-star line-up. Now that
line-up is complete, introducing Signs By Tomorrow. At Signs By Tomorrow,
discover a complete roster of signage capability and experience as well as
full application, consulting, and design services that include event
signs, digital imaging, and vehicle graphics. Whatever your signage needs,
be sure to go with the winner. Call Signs By Tomorrow in Gahanna at (614)
478-6473. Signs By Tomorrow, custom signs for all your business needs.
16. CINTAS (18:40-19:11) (30 seconds)
SPEAKER 1: This is a true story, the people telling it aren't actors, they
work for Cintas.
CHRIS: I made my usual stop at an auto dealership, when a woman cried out
for help just a few doors away, her house was on fire. That place was
going up fast.
SPEAKER 1: Chris didn't hesitate, he ran right into that burning house.
CHRIS: Her kids were trapped inside, two little kids, I had to do
something.
SPEAKER 1: Risking your life for someone you don't know? That's my
definition of a hero.
SPEAKER 1: Our employees succeed because they share a spirit. At Cintas,
great people make it a great company.
17. CONNELL'S MAPLE LEAF FLOWERS & GIFTS (20:32-21:04) (32 seconds)
Do you have that special occasion coming up? Maybe it is an anniversary,
or a birthday, or maybe you just want to send that someone special flowers
that say I love you. Then look no further than Connell's Maple Leaf
Flowers & Gifts for all your floral needs. With four central Ohio
locations, Grove City, Bexley, Worthington, and Pickerington, Connell's
Maple Leaf Flowers have the perfect gifts for you and your occasion. You
can also order arrangements and gifts online at cmflowers.com. Connell's
Maple Leaf Flowers & Gifts is a proud partner of Capital University and
the Crusaders. A tradition of quality, service, and value since 1883.
18. KROGER (23:16-23:45) (29 seconds)
SPEAKER 1: I have a family of five, so I -- you know, I take advantage of
all of those sales.
SPEAKER 2: Kroger can absolutely help a family on a budget.
SPEAKER 1: Kroger has low prices on the items you buy most. Just look for
the yellow price tags throughout the store.
SPEAKER 2: Lot of things that my family uses seems to be on sale a lot
like cereal, and yogurt --
SPEAKER 1: Diapers is the big one.
SPEAKER 2: They have the lowest prices on the items you use everyday.
19. FAIRFIELD FEDERAL SAVINGS AND LOAN ASSOCIATION (25:38-26:07) (29
seconds)
MR. SHAFER: This is Chuck Shafer for Fairfield Federal Savings and Loan
Association. Looking for a really free checking account? I mean one with
no monthly fee, no charge for ATM transactions, free use of a debit card,
and a statement each month. How about free Internet banking? Fairfield
Federal is the place for you. Local service and local people, that's
Fairfield Federal. Stop in at one of our offices today, or visit us at
fairfieldfederal.com. Equal housing lender, FDIC insured.
20. WALKER'S SHOE CENTER (26:08-26:38) (30 seconds)
MR. WALKER: This is Phil Walker. After 46 years, The Shoe Center, 737 East
main, Lancaster is best remembered for our skill and patience in fitting
difficult feet. Our shoe fitting expertise is yours. Visit our store, many
active adults of all ages find our counsel and help with shoe selection
enables them to remain physically active and comfortable in aerobic
pursuits. Walker's Shoe Center 654-3166.
See 47 U.S.C. S: 399b(a).
See 47 C.F.R. S: 73.503.
See Letters from Complainant to Benigno E. Bartolome, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau, dated September
15, 2006, and March 1, 2007 (collectively the "Complaint").
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Lancaster, dated August 20, 2007
("LOI").
See Letter from Steve Rauch, President, Lancaster Educational Broadcasting
Foundation, to Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, dated September 14, 2007
("Response").
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991).
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362, P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
See Southern California Broadcasting Co., 6 FCC Rcd at 4388, P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, P: 9.
See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 P: 4 (2002) (forfeiture paid).
See 47 U.S.C. S: 399b(a).
See 47 U.S.C. S: 399b(b)(2).
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 Response at 1.
See id. at 1-2. Station programmer Gameday Management supplied on-air
talent, underwriting announcements, and a "rights fee" to Station WFCO(FM)
in exchange for Lancaster's agreement to air the Capital University 2007
season football games. See id.
See id. at 1-2.
Because promotional messages made on behalf of not-for-profit entities are
permissible, we do not include those made on behalf of those underwriters
including Revive Our Hearts, College Football Hall of Fame,
Findachurch.net, Children's Hospital Sports Medicine, Capital University,
Midstate Educators Credit Union, and Fairfield County District Library in
our findings. See Commission Policy Concerning the Noncommercial Nature of
Educational Broadcast Stations, Report and Order, 90 FCC 2d 895, 900 n.16
(1982), recons., 97 FCC 2d 255 (1984) ("1982 Policy Statement") (noting
that institutions which qualify under IRS guidelines as not-for-profit
organizations may be promoted).
See Public Notice, supra, note 16.
See "Stay at the Airport Hotels" announcement ("best hotel choices are
right here").
See "Cintas" announcement ("Cintas employees put integrity above all
else;" "I wasn't dealing with an ordinary company"); "Corna/Kokosing
Construction Company" announcement ("demanding integrity and quality in
everything we do"); "Walker Shoe Center" announcement ("best remembered
for our skill and patience in fitting difficult feet. Our shoe fitting
expertise is yours"); "Personal Touch Party Rentals & Events" announcement
("your event will be one to remember when you add that personal touch");
and "Time Warner Cable" announcement ("home and your TV never looked or
sounded better").
See "Kroger" announcement ("where [there are] sale prices and everyday low
prices on the items you buy most" and offers "the better way to shop");
and "Stay at the Airport Hotels" announcement ("for reservations ask for
special Capital rate").
See "Gameday Management" announcement ("partner with Gameday Management
and achieve better results").
See "Byers Imports" announcement ("new VW Jetta which offers more of
everything," including "more room, power and luxury").
See "Old Bag of Nails" announcement ("a perfect place to eat after the big
game," offering meal selections including "juicy steaks"); "McDonald's"
announcement ("refuel with a new way to snack," offering meals selections
including "tender juicy, warm, all white premium chicken"); "Papa Joe's
Pizza" announcement ("a legendary team deserves a legendary pizza"); and
"Connell's Maple Leaf Flower and Gifts" announcement (offering "perfect
gifts for you and your occasion").
See "Time Warner Cable" announcement ("with Time Warner Cable save both
time and money"); "Graeter's Ice Cream" announcement ("let us pack your
favorite flavors in our handy, re-usable inflated coolers, guaranteed to
stay frozen for 24 hours"); "State Farm" announcement ("helps make your
life a little easier"); and "Stay at the Airport Hotels" announcement
("staying at these airport hotels offers convenience like no other").
See "Wesbanco" announcement ("competitively low interest rate," "ultimate
flexibility," and tax advantages not available on other types of credit");
and "Fairfield Federal Savings and Loan Association" announcement
("looking for a really free checking account . . . one with no monthly
fee, no charge for ATM transactions, free use of a debit card. . .?").
See "Signs by Tomorrow" announcement ("whatever your signage needs, be
sure to go with the winner"); "Walker Shoe Center" announcement ("visit
our store"); "Fairfield Federal Savings and Loan Association" announcement
("stop in at one of our offices"); and "State Farm" announcement ("visit
State Farm Agent Teresa Bush") .
See Response at 2.
Cf. American Family Association, Notice of Apparent Liability, 17 FCC Rcd
18135, 18137 P: 10 (Enf. Bur. 2002), recons. denied in part, 18 FCC Rcd
2413 (2003) (reducing a proposed forfeiture, in part, because the
broadcaster had voluntarily disclosed violation to Commission staff prior
to any Commission investigation); Max Media of Montana, L.L.C., Notice of
Apparent Liability, 18 FCC Rcd 21375, 21378 P: 11 (Enf. Bur. 2003)
(finding reduction appropriate where corrective action initiated by
broadcaster prior to Commission involvement in case).
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Policy Statement,
12 FCC Rcd 17087, 17113 (1997), recons. denied 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement"); 47 C.F.R. S: 1.80(b).
47 U.S.C. S: 503(b)(2)(E). See also Forfeiture Policy Statement, 12 FCC
Rcd at 17100-101 P: 27.
Cf. Family Life Educational Foundation (KOUZ(FM)), Notice of Apparent
Liability, 17 FCC Rcd 16317 (Enf. Bur., Investigations & Hearings Div.
2002) (imposing a $2,000 forfeiture for broadcast of a single
impermissible underwriting announcement more than one hundred times over a
four-month period) (forfeiture paid); See Christian Voice of Central
Ohio, Inc.(WCVZ(FM)), Notice of Apparent Liability for Forfeiture, 19 FCC
Rcd 23663 (Enf. Bur. 2004) ($20,000 forfeiture initially proposed for
underwriting violations), forfeiture reduced, 23 FCC Rcd 7594 (Enf. Bur.
2008) (forfeiture reduced to $9,000 for good compliance record and after
finding acceptable a previously sanctioned announcement), recons. den., 23
FCC Rcd 15943 (2008) (collectively "Christian Voice").
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S:S: 0.111, 0.311 and 1.80.
See 47 U.S.C. S: 399b(a).
See 47 C.F.R. S: 73.503.
See 47 C.F.R. S: 1.1914.
For the purposes of the forfeiture proceeding initiated by this NAL,
Lancaster shall be the only party to this proceeding.
Federal Communications Commission DA 09-216
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Federal Communications Commission DA 09-216