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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) EB-06-IH-5641
In the Matter of
) Facility ID No. 42685
MINISTERIO RADIAL CRISTO VIENE PRONTO,
INC. ) NAL/Account No.
200932080024
Licensee of Noncommercial Educational )
Station WCRP(FM), Guayama, Puerto Rico FRN 0009422858
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 16, 2009 Released: January 16, 2009
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Ministerio Radial Cristo Viene Pronto, Inc., ("Ministerio"), licensee
of noncommercial educational Station WCRP(FM), Guayama, Puerto Rico, 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 Ministerio is apparently liable for a monetary forfeiture in the
amount of $2,500.
II. BACKGROUND
2. This case arises from a complaint made to the Commission alleging that
noncommercial educational Station WCRP(FM) broadcast prohibited
underwriting announcements on or about October 25, 2006. Thereafter, the
Bureau inquired of the licensee concerning the allegations contained in
the complaint. Ministerio responded substantively to the LOI on June 5,
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 Ministerio is apparently liable for a forfeiture in
the amount of $2,500 for its apparent willful and repeated violations of
the Commission's Underwriting Rules.
A. Ministerio Has Willfully and Repeatedly Broadcast Advertisements in
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 two underwriting announcements made by Ministerio on
behalf of William's Furniture and Rainbow that Ministerio admits were
broadcast by its station during the period October 1, 2006, until December
2, 2006. Ministerio acknowledges that it received monetary consideration
in exchange for airing these announcements. Ministerio also represents
that the underwriters are both for-profit entities, and that the messages
were repeated a total of 12 times during the stated period.
6. After careful review of the record in this case, we find that the
announcements in question apparently exceed the bounds of what is
permissible under Section 399B of the Act, and the Commission's pertinent
rules and policies, notwithstanding the "good faith" discretion afforded
licensees under Xavier. In this regard, an announcement made on behalf of
William's Furniture, which describes it as offering "quality
craftsmanship," seeks impermissibly to distinguish that underwriter's
business favorably from that of its competitors. The Commission has
broadly held that, in underwriting announcements, the station's use of
comparative and qualitative language to describe the underwriter or its
products or services is generally forbidden. In addition, in this case,
the underwriter improperly attempts to induce patronage through its offer
of "free estimates," "10% discounts," and by urging listeners to "call
now." Similarly, an announcement made on behalf of Rainbow improperly
promotes the underwriter by claiming that its cleaning product offers "the
best cleaning system," and presents a "unique environment." Further,
Rainbow improperly seeks to induce patronage in offering that "for a
limited time only, [listeners may] obtain a special gift with a free
in-home presentation and another when [they] purchase"; by offering
financing "without interest"; and by imploring listeners to "call right
now." The underwriter makes further prohibited references to price in
implying that its services are low cost, by stating "because you deserve
to be healthy and your pocket deserves also." Thus, the instant
announcements appear to contain numerous prohibited promotional
references.
7. Ministerio claims that it closely monitors its underwriting content,
and that "any violation found to have been contained in the [foregoing]
announcements . . . was inadvertent and represents an aberration from
[its] general practices", and that these occurrences were only "isolated
instances." We do not agree that Ministerio's multiple repetitions of such
announcements during a two-month period can be characterized as truly
isolated. Nor do we find convincing Ministerio's assertion of care in
reviewing the content of its underwriting messages, given the plainly
promotional nature of the material at issue here. In short, none of
Ministerio's assertions provide a basis for mitigation.
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 sets a base forfeiture amount
of $2,000 for violation of the enhanced underwriting rules. 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) of the Act, 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, during a two-month period from October
1, 2006, until December 2, 2006, Ministerio willfully and repeatedly
broadcast two separate advertisements on a total of twelve occasions in
violation of Section 399B of the Act and Section 73.503 (d) of the
Commission's rules. Based on all the circumstances, the relatively limited
period of time over which the prohibited announcements were aired, the
small number of announcements and repetitions at issue, and after
examining forfeiture actions in other recent underwriting cases, we
believe that a forfeiture of $2,500 is appropriate. Accordingly, applying
the Forfeiture Policy Statement and the statutory factors to this case, we
conclude that Ministerio is apparently liable for a forfeiture in the
amount of $2,500 for willfully and repeatedly 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, Ministerio Radial Cristo Viene Pronto, Inc., licensee of
noncommercial educational Station WCRP(FM), Guayama, Puerto Rico, is
HEREBY NOTIFIED OF ITS APPARENT LIABILITY FOR A FORFEITURE in the amount
of $2,500 for willfully and repeatedly broadcasting advertisements in
violation of Section 399B of the Act, 47 U.S.C. S: 399b, and Section
73.503 of the Commission's rules, 47 C.F.R. S: 73.503, from October 1,
2006 until December 2, 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, Ministerio 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.
Ministerio will also send electronic notification on the date said payment
is made to Hilary.DeNigro@fcc.gov, Kenneth.Scheibel@fcc.gov, and
Anita.Patankar-Stoll@fcc.gov.
13. The response, if any, shall 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. To the
extent practicable, the response, if any, shall also be sent 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 FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail/Return Receipt Requested, to Ministerio Radial Cristo Viene
Pronto, Inc., P.O. Box 344, Guayama, Puerto Rico, 00785-0344, and to its
counsel, Frank R. Jazzo, Esq., and Anne Goodwin Crump, Esq., Fletcher
Heald & Hildreth, P.L.C., 11th Floor, 1300 North 17th Street, Arlington,
Virginia 22209.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
ATTACHMENT
The following text was transcribed from underwriting announcements
broadcast over noncommercial educational Station WCRP(FM), Guayama, Puerto
Rico.
William's Furniture
We do all types of wood work (carpentry) with teak, white oak, red oak. We
work with European styles, natural and Italian. We do work for offices,
bathrooms, and kitchens. Bring us your idea and we will make it happen.
Free estimates upon completing your order for immediate service. Quality
craftsmanship. If you mention you heard this on Revelacion Radio 88.1,
you'll receive a 10% discount. Call now at 939-630-3552. Willam's
Furniture.
Rainbow
Because you deserve to be healthy and your pocket deserves to be also, the
new Rainbow has arrived. The best cleaning system, it has 42 functions.
Enjoy the unique environment that Rainbow offers. Now you can finance it
for 12, 14 or up to 18 months without interest. What, you can't believe
it? Call right now. You can obtain one easier than ever at (787) 914-0335
or at (787) 586-6220. For a limited time only obtain a special gift with a
free in-home presentation and another when you purchase.
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503 (the "Underwriting Rules").
See E-mail from Diane Law Hsu, Regional Counsel, Tampa Field Office,
Enforcement Bureau, to Benigno E. Bartolome, Deputy Chief, Investigations
and Hearings Division, Enforcement Bureau, dated November 16, 2006
("Complaint").
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Ministerio, dated April 20, 2007
("LOI").
See Letter from Frank R. Jazzo, Esq., and Anne Goodwin Crump, Esq., to
Marlene H. Dortch, Secretary, FCC, dated June 5, 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).
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 2.
See id. at 1-2.
See id. at Exhibit 1; see also Public Notice, supra note 16.
See Public Notice, supra note 16; Minority Television Project, Inc.
(KMTP-TV), Forfeiture Order, 18 FCC Rcd 26611 (Enf. Bur. 2003), aff'd,
Order on Review, 19 FCC Rcd 25116 (2004), recons. den., 20 FCC Rcd 16923
(2005) (forfeiture paid).
See Response at Exhibit 1; see also Public Notice, supra note 16.
See Response at Exhibit 1.
See id.
See id.
See Response at 3.
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).
Forfeiture Policy Statement, 12 FCC Rcd at 17100-01, P: 27.
Cf. Family Life Educational Foundation (KOUZ(FM)), Notice of Apparent
Liability, 17 FCC Rcd 16317 (Enf. Bur. 2002) (forfeiture paid) ($2,000
forfeiture imposed for repeat violation involving 120 repetitions of
single message over a three-month period).
Federal Communications Commission DA 09-48_____
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Federal Communications Commission DA 09-48