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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of EB-06-IH-5046
)
INDEPENDENCE PUBLIC MEDIA OF Facility ID No. 28480
)
PHILADELPHIA, INC. NAL/Account No.
) 2009320830025
Licensee of Noncommercial Educational
Television Station WYBE(TV), Philadelphia, ) FRN No. 0008411837
Pennsylvania
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 10, 2009 Released: February 10, 2009
By the Investigations and Hearings Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Independence Public Media of Philadelphia, Inc. ("Independence"),
licensee of noncommercial educational television Station WYBE(TV),
Philadelphia, Pennsylvania, willfully and repeatedly broadcast prohibited
advertisements in apparent violation of Section 399B of the Communications
Act of 1934, as amended (the "Act"), and Section 73.503(d) of the
Commission's rules. Based upon our review of the facts and circumstances
of this case, we conclude that Independence is apparently liable for a
monetary forfeiture in the amount of two thousand five hundred dollars
($2,500).
II. BACKGROUND
2. This case arises from a complaint made to the Commission on October 18,
2006, alleging that noncommercial educational television Station WYBE(TV)
broadcast prohibited underwriting announcements on October 15, 2006. The
complainant provided a transcript and program log relating to the program
material at issue. Thereafter, the Enforcement Bureau ("Bureau") inquired
of the licensee concerning the allegations contained in the complaint.
Independence responded to the LOI on October 10, 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 Independence is apparently liable for a forfeiture in
the amount of two thousand five hundred dollars ($2,500) for its apparent
willful and repeated violations of the Commission's underwriting rules.
A. Independence 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, 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.
5. At issue here are four underwriting announcements that Station WYBE(TV)
broadcast on October 15 and 22, 2006, during the Asian Variety Show.
Independence acknowledges that it received remuneration for airing
messages contained in the show's broadcasts on behalf of the station's
underwriters, all of whom are for-profit entities. Independence claims
that it does not maintain copies of programs that air on WYBE(TV), and,
therefore, cannot confirm whether or when they aired, or their content.
However, relying on an account given by the producer of the Asian Variety
Show, Independence indicates that announcements identified by the Bureau
were included in an episode of the show, and that it is likely that
announcements appeared in additional episodes of the Asian Variety Show
that aired "during the three to four week period immediately preceding or
following October 15, 2006." Independence believes, however, that the
complained-of program, Asian Variety Show, aired on October 15, 2006, and
was rebroadcast at 12:30 a.m. on October 22, 2006. Independence further
notes that the show's producer could not confirm the accuracy of the
transcript provided by the complainant.
6. The Commission has long held that a licensee may not avoid liability
for a rule violation by claiming ignorance as to what was broadcast over
its station. In similar instances, where the licensee can neither
independently recall nor affirm or deny allegations concerning the content
of what was broadcast on its station, the Commission has relied upon, and
found credible, transcripts and other supporting information provided by
complainants. In this case, although the producer of the Asian Variety
Show could not verify the content of the announcements, it appears to
confirm that the identified announcements were included in the October 15,
2006, episode, which was apparently rebroadcast, and that the
announcements appeared in additional episodes. These admissions, which are
consistent with the claims made by the complainant, lend credence to the
complaint.
7. After careful review of the record in this case, we find that the four
announcements set forth in the attached transcript were made 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, notwithstanding the "good faith" discretion afforded
licensees under Xavier. We conclude that they appear to constitute
prohibited advertisements because they invite or urge business patronage,
distinguish favorably the respective underwriters from their competitors
by stating or implying that they offer superior service, products or
price, and describe their underwriters through comparative and qualitative
references.
8. Specifically, the announcements on behalf of Tilda Basmati Rice,
Tajonline.com, Citibank and Classic Conservatories impermissibly promote
their respective underwriters' services or products through the use of
comparative and qualitative terms such as "something really special," "at
a special price," "the world's most loved," "most trusted," "most
anticipated," "exclusive," "luxurious," "inviting" and "timeless." In
addition, the Classic Conservatories announcement seeks to distinguish
favorably its underwriter by referring to design awards it has received,
and other distinctions that it possesses. The Tilda Basmati Rice, Citibank
and Classic Conservatories announcements also improperly refer to pricing
information and services that the underwriters provide free of charge.
Finally, the announcements or included video captions on behalf of
Citibank and Classic Conservatories contain explicit calls to action. The
foregoing references appear to exceed the licensee's discretion under
Xavier because each, in the context presented, refers either to specific
qualities or attributes of the respective underwriters that are not
necessarily possessed by competitors, or otherwise contain prohibited
price information or other language of inducement.
B. Proposed Forfeiture
9. Section 503(b) of the Act and Section 1.80(a) of the Commission's rules
both state that any person who willfully or repeatedly fails to comply
with the provisions of the Act, the rules or Commission orders shall be
liable for a forfeiture penalty. The Commission's Forfeiture Policy
Statement sets 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) 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."
10. In this case, it appears that, on October 15 and 22, 2006,
Independence willfully and repeatedly broadcast four separate
advertisements in violation of Section 399B of the Act and Section
73.503(d) of the Commission's rules. 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 two
thousand five hundred dollars ($2,500) is appropriate. Accordingly,
applying the Forfeiture Policy Statement and the statutory factors to this
case, we conclude that Independence is apparently liable for a forfeiture
in the amount of two thousand five hundred dollars ($2,500) for willfully
and repeatedly violating the Commission's underwriting rules.
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED, 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, Independence Public Media of Philadelphia,
Inc., licensee of noncommercial educational television Station WYBE(TV),
Philadelphia, Pennsylvania, is hereby NOTIFIED of its APPARENT LIABILITY
FOR A FORFEITURE in the amount of two thousand five hundred dollars
($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, on October 15 and 22,
2006.
12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty days of the release of this Notice, Independence
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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.
Independence 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.
14. 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
DC 20554 and SHALL INCLUDE the NAL/Acct. No. referenced above. To the
extent practicable, the response, if any, shall also be sent by electronic
mail to Hillary.DeNigro@fcc.gov, Kenneth.Scheibel@fcc.gov, and
Anita.Patankar-Stoll@fcc.gov.
15. 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.
16. 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.
17. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail/Return Receipt Requested, to Independence Public Media of
Philadelphia, Inc., c/o Naomi S. Travers, Esq. and Howard Liberman, Esq.,
Drinker Biddle & Reath, LLP, 1500 K Street, N.W., Suite 1100, Washington,
DC 20005-1209, and by electronic mail to the Complainant.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
ATTACHMENT
Set forth below is the text of underwriting announcements allegedly aired
by noncommercial educational television Station WYBE(TV), Philadelphia,
Pennsylvania, on October 15 and 22, 2006:
1. Tilda Basmati Rice
Audio Voiceover: Looks like you found something really special for the
festive season and at a special price. Must be Tilda. Tilda Pure Basmati -
Enjoy the world's most loved basmati.
Video Text caption: $11.45 - 15 lbs.
2. Tajonline.com
Video Text Caption: Most trusted NRI gifting website.
3. "Don" / Citibank DVD Giveaway
Audio Voiceover: Watch the most anticipated movie of the year with an
exclusive offer from Citibank Rupee Checking Account. Open an account
today and get a complimentary Don DVD.
Video Text caption: For more information call Sanjay 718-XXX-XXXX.
4. Classic Conservatories
Audio Voiceover: Great investment. Share the sunlight. Add luxurious, year
round, and inviting living space to your home that will also prove to be a
great investment. Classic Conservatories are precision crafted using the
latest technological advancements to timeless beauty. By the proud British
craftsmen who were also the winners of many coveted international design
awards. 1-888-XXX-XXXX to make an appointment for a free, in-home, no
obligation design consultation.
Video Text caption: Please call 1-888-XXX-XXXX.
See 47 U.S.C. S: 399B (a).
See 47 C.F.R. S: 73.503(d).
See anonymous email complaint sent to the Federal Communications
Commission, Media Bureau, dated October 18, 2006 ("Complaint").
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Independence Public Media of
Pennsylvania, Inc., dated August 24, 2007 ("LOI").
See Letter from Naomi D. Travers, Esq., to Marlene Dortch, Federal
Communications Commission, dated October 10, 2007, and filed on behalf of
Independence ("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 id.
See Public Notice, In the Matter of the Commission Policy Concerning the
Noncommercial Nature of Educational Broadcasting Stations (1986),
reprinted in 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; see also Response at 2.
See Response at 3. Independence explains that, while it does not have a
direct relationship with the underwriters whose announcements air on the
Asian Variety Show, it offers airtime to international program suppliers
and, in exchange receives a fee to air programs that contain embedded
announcements. See Minority Television Project, Inc., Notice of Apparent
Liability for Forfeiture, 17 FCC Rcd 15646, 15649 (Enf. Bur. 2002),
Forfeiture Order, 18 FCC Rcd 26611 (2003), pet. for rev. den'd, Order on
Review, 19 FCC Rcd 25116 (2004), aff'd, Memorandum Opinion and Order, 20
FCC Rcd 16923 (2005) (forfeiture paid) (collectively "Minority TV"); see
also In the Matter of Commission Policy Concerning the Noncommercial
Nature of Educational Broadcasting Stations, Memorandum Opinion and Order,
90 FCC 2d 895, 911 (1982), recons., 97 FCC 2d 255 (1984) ("Policy
Statement"); Window to the World Communications, Inc., Notice of Apparent
Liability for Forfeiture, 12 FCC Rcd 20239, 20241 n.2 (Enf. Bur. 1997),
Forfeiture Order, 15 FCC Rcd 10025 (Enf. Bur. 2000) ("WTTW") (finding that
consideration for purposes of Section 399B of the Act, may consist of the
program material itself).
See Response at 1-3.
See id.
See id.
See id.
See Proactive Communications, Inc. (KQQB-FM), Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd 9079, 9082 (Enf. Bur., Investigations &
Hearings Div., 2008); see also Infinity Broadcasting Corporation of Los
Angeles (KROQ-FM), Memorandum Opinion and Order, 17 FCC Rcd 9892, 9895
(2002) (citing Community Broadcasters, Inc. (WGHN(AM)/ WGHN-FM),
Memorandum Opinion and Order, 55 FCC 2d 28, 35 (1975)) ("Infinity").
See Infinity, 17 FCC Rcd at 9895.
See Response at 1-3.
See Complaint at 1-3.
See generally Public Notice (clarifying the Commission's position on
prohibited announcements).
See Attachment at "Tilda Basmati Rice" announcement ("something really
special for the festive season").
See id. ("at a special price").
See id. ("[e]njoy the world's most loved basmati").
See Attachment at Tajonline.com announcement ("[m]ost trusted NRI gifting
website").
See Attachment at Citibank announcement ("the most anticipated movie of
the year").
See id. ("an exclusive offer from Citibank").
See Attachment at Classic Conservatories announcement ("[a]dd luxurious,
year round, and inviting living space to your home that will also prove to
be a great investment").
See id. ("inviting living space").
See id. ("timeless beauty").
See id. ("precision crafted using the latest technological advancements to
timeless beauty . . . . By the proud British craftsmen who were also the
winners of many coveted international design awards.").
See Attachment at Tilda Basmati Rice announcement, which includes a text
block on the image of a rice bag with the following price information:
"$11.45 - 15 lbs".
See Attachment at Citibank announcement ("[o]pen an account today and get
a complimentary Don DVD"); see also Attachment at Classic Conservatories
announcement ("to make an appointment for a free, in-home, no obligation
design consultation").
See Attachment at Citibank announcement ("For more information call
Sanjay [telephone number]; Classic Conservatories announcement ("Please
call [telephone number]").
See 47 U.S.C. S: 503(b); 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, 12 FCC Rcd
17087, 17115 (1997) ("Forfeiture Policy Statement"), recon. denied 15 FCC
Rcd 303 (1999); 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 P: 27.
For purposes of the forfeiture proceeding initiated by this NAL,
Independence shall be the only party to this proceeding.
Federal Communications Commission DA 09-49_____
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Federal Communications Commission DA 09-49