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Before the
Federal Communications Commission
Washington, D.C. 20554
)
EB-05-IH-1078
In the Matter of )
Facility ID No. 9426
CAYUGA COUNTY COMMUNITY COLLEGE )
NAL/Account No.
Licensee of Noncommercial Educational ) 200932080001
Station WDWN(FM), Auburn, New York
) FRN 0003414620
)
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 Cayuga County Community College ("Cayuga"), licensee of noncommercial
educational Station WDWN(FM), Auburn, New York, 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 of the Commission's rules. Based upon our review of the facts and
circumstances of this case, we conclude that Cayuga 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 on August 26,
2005, alleging that noncommercial educational Station WDWN(FM) had aired
prohibited commercial announcements during its August 13, 2005, broadcast
of an Auburn Doubledays baseball game. Thereafter, the Enforcement Bureau
("Bureau") inquired of the licensee concerning the allegations contained
in the complaint. Cayuga responded to the LOI on December 19, 2006.
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 Cayuga 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. Cayuga 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, 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 ten underwriting announcements, transcripts of which
are attached, that Cayuga does not deny that its station broadcast on
August 13, 2005. Although Cayuga claims that it is "unable to verify the
accuracy or inaccuracy" of the language reflected in the transcripts of
the announcements, it acknowledges that the station aired underwriting
announcements on that date, and that the underwriters mentioned "appear to
be the same list of underwriters that would have been included in the
broadcast." Cayuga further represents that all of the entities mentioned
in the announcements are for-profit entities. Cayuga contends that it
received no consideration from any for-profit entity for broadcasting the
announcements, but instead claims that sponsorship donations of $100 each,
per season, were made by the underwriters directly to the Auburn
Doubledays non-profit baseball club to help defray their travel expenses.
Cayuga claims that the station, after receipt of the Commission's inquiry,
has revised its practices for the inclusion of underwriting announcements
on similar broadcasts.
6. After careful review of the record in this case, we find that the
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, supra. We conclude that they appear to constitute
prohibited advertisements because they invite or urge business patronage
(e.g., "[m]eets all your banking needs. Visit one of our four branches"),
distinguish favorably the respective underwriters from their competitors
by stating or implying that they offer superior service, products,
warranty or price (e.g., "flexible financing," "Budweiser and Bud Lite are
discounted," "sport medicine guarantee," "where our aim is excellence and
our goal perfection"), and describe their underwriters through comparative
or qualitative references made either directly or indirectly (e.g.,
"offers advantages that are unique to any other firm, with sound
investment practices based on intensive research").
7. Moreover, we find that a quid pro quo exchange of consideration between
the underwriter and the licensee - a prerequisite to finding a violation
of Section 399B - took place in this case. Cayuga contends that it
received no support of any kind from any for-profit entity, and that any
consideration involved was furnished by the underwriters to the baseball
club whose games were broadcast. Cayuga thus suggests that the station's
broadcast of any underwriting announcements contained in the broadcast was
not supported by consideration and was therefore harmless under the Act.
8. We reject this argument. The Act does not require that the
consideration involved be supplied directly by the sponsor or underwriter
itself. Moreover, cognizable consideration may take many forms, including
programming itself. In this case, we find that sufficient consideration
exists because the baseball club furnished the programming by permitting
Cayuga to broadcast the club's road games. Although Cayuga claims that the
decision to air the material was based on its civic-minded determination
to help publicize the club, the fact that Cayuga may have had other
reasons for broadcasting the material does not negate the fact that Cayuga
also received consideration, in this case the club's permission to air
such material. Finally, we do not find mitigating Cayuga's contention that
it has since revised its practices to preclude further lapses. This
argument ignores settled precedent that a licensee's post-facto remedial
efforts are not mitigating.
B. Proposed Forfeiture
9. The Commission's Forfeiture Policy Statement sets a base forfeiture
amount of $2,000 for violation of the 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 the Christian Voice NAL, the Bureau proposed a $20,000 forfeiture
against a noncommercial educational broadcast licensee for airing ten
separate announcements on several thousand occasions in apparent violation
of the Commission's Underwriting Rules over a fifteen-month period of
time. Here, it appears that on August 13, 2005, Cayuga willfully and
repeatedly broadcast ten separate advertisements on at least one occasion
in violation of Section 399B of the Act and Section 73.503(d) of the
Commission's rules. While the number of prohibited announcements here is
similar to Christian Voice NAL, the number of repetitions is substantially
fewer and the period of time over which they aired is substantially less.
Based on all the circumstances, and after examining forfeiture actions in
other recent underwriting cases, we believe that a forfeiture of $2,500 is
appropriate.
IV. ORDERING CLAUSES
11. 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, Cayuga County Community College, licensee of noncommercial
educational Station WDWN(FM), Auburn, New York, 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, on August 13, 2005.
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, Cayuga 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.
Cayuga County Community College 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 via e-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 FURTHER ORDERED that the above-referenced 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 Cayuga County Community
College, 197 Franklin Street, Auburn, New York 13021, and by regular mail
to its counsel, Cary S. Tepper, Esq., Booth, Freret, Imlay & Tepper, P.C.,
14356 Cape May Road, Silver Spring, Maryland 20904-6011.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
ATTACHMENT
Set forth below is the relevant text of underwriting announcements
allegedly broadcast over Station WDWN(FM), Auburn, New York, on August 13,
2005:
Coca Cola Bottling
Coca Cola is available on Double Days Dollar Discount Nights. With over
400 brands, they have a drink for everyone.
Wegmans
Shoppers Club Cards are good for a discount.
Owasco Beverage
Budweiser and Bud Lite are discounted on Double Day Dollar Events.
Adelphia Cable
Targeted advertising through specialized channels such as ESPN. Jack and
John are available for advertising at [telephone number].
Smith Barney
Time tested way of investing. Smith Barney offers advantages that are
unique to any other firm, with sound investment practices based on
intensive research.
Savannah Bank
Meets all your banking needs. Visit one of our four branches in the Finger
Lakes. Banking the old fashioned way.
Finger Lakes Bottling
Miller Beer is a cold refreshing beer served at Falcon Park.
Bank of America
Provides flexible financing for policemen, firemen, nurses, and others in
the community that serve it so well.
Victory Sports Medicine
Home of the 24-hour sports medicine guarantee.
Tesoros Department Store
Where our aim is excellence and our goal perfection.
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503 (the "Underwriting Rules").
See Letter of Jim Seward to the Enforcement Bureau, received August 26,
2005 ("Complaint"), at 1.
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Cayuga, dated October 20, 2006
("LOI").
See Letter from Cary S. Tepper, Esq., Counsel to Cayuga, to Elizabeth H.
Valinoti, Assistant Division Chief, Investigations and Hearings Division,
Enforcement Bureau, dated December 19, 2006 ("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),
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.
Id.
Id.
Id. at 2.
Id. We note that the Auburn Doubledays, participating in the New York-Penn
League Class A-Short Season, are owned and operated by Auburn Community
Owned Non-Profit Baseball Association, Inc.
Id at 3-5.
See Attachment, Savannah Bank announcement.
See Attachment, Bank of America announcement.
See Attachment, Owasco Beverage announcement.
See Attachment, Victory Sports Medicine announcement.
See Attachment, Tesoros Department Store announcement.
See Attachment, Smith Barney announcement.
See Response at 2; 4-5.
We note that 47 U.S.C. S: 399b(a) simply provides: "[f]or purposes of
this Section, the term `advertisement' means any message or other
programming material which is broadcast or otherwise transmitted in
exchange for any remuneration, and which is intended to promote any
service, facility or product offered by any person who is engaged in such
offering for profit."
See In the Matter of the Commission Policy Concerning the Noncommercial
Nature of Educational Broadcast Stations, Memorandum Opinion and Order, 90
FCC 2d 895, 911-912, P:P: 26-28 (1982) ("1982 Policy Statement").
See LOI Response at 3. The 1982 Policy Statement specifically found that
consideration exists where non-profit organizations, such as the baseball
club here, furnish "live or taped performances" intended for broadcast.
See 1982 Policy Statement, 90 FCC 2d at 906, P: 19.
See Response at 3-5.
See Capstar TX Limited Partnership (WKSS(FM)), Notice of Apparent
Liability, 20 FCC Rcd 10636 (Enf. Bur. 2005) (forfeiture paid); AT&T
Wireless Services, Inc., Notice of Apparent Liability, 17 FCC Rcd 21866,
21871 (2002); KVGL, Inc., Memorandum Opinion and Order, 42 FCC Rcd 258,
259 (1973).
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"), recons. 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.
See Christian Voice of Central Ohio, Inc.(WCVZ(FM)), 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) (forfeiture paid) (collectively "Christian Voice").
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).
For purposes of the forfeiture proceeding initiated by this NAL, Cayuga
shall be the only party to this proceeding.
Federal Communications Commission DA 09-50_____
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Federal Communications Commission DA 09-50