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Before the
Federal Communications Commission
Washington, D.C. 20554
)
EB-03-IH-0687
In the Matter of )
Facility ID No. 133411
POWER RADIO CORPORATION )
NAL/Account No.
Licensee of Noncommercial Educational ) 200932080020
Station KXPW-LP, Georgetown, Texas
) FRN 0006560650
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 18, 2009 Released: March 18, 2009
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Power Radio Corporation ("PRC"), licensee of noncommercial
educational Station KXPW-LP, Georgetown, Texas, willfully and repeatedly
broadcast prohibited advertisements in apparent violation of Section 399B
of the Communications Act of 1934, as amended (the "Act"), and Sections
73.503 and 73.801 of the Commission's rules. Based upon our review of the
facts and circumstances of this case, we conclude that PRC is apparently
liable for a monetary forfeiture in the amount of twenty thousand dollars
($20,000).
II. BACKGROUND
2. This case arises from a complaint made to the Commission in November
2003, alleging that noncommercial educational Station KXPW-LP broadcast
prohibited underwriting announcements on July 16, 2003. Thereafter, the
Enforcement Bureau ("Bureau") inquired of the licensee concerning the
allegations contained in the complaint. PRC responded to the August 9th
LOI on September 13, 2004. Prior to that response, however, the
Complainant alleged that the station had aired further prohibited
underwriting announcements on August 23 and 24, 2004, about which the
Bureau inquired on October 20, 2004. Further responsive pleadings
followed.
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 PRC is apparently liable for a forfeiture in the
amount of twenty thousand dollars ($20,000) for its apparent willful and
repeated violations of Section 399B of the Act and the Commission's
underwriting rules.
A. PRC Has Willfully and Repeatedly Broadcast Advertisements in Apparent
Violation of Section 399B of the Act and Sections 73.503 and 73.801 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 eight underwriting announcements which PRC admits
that Station KXPW-LP broadcast between July 2003 and September 2004. PRC
claims that the announcements were revised in June and then again in
September 2004 in an attempt to conform them to the Commission's
underwriting guidelines. PRC acknowledges that it received remuneration
for airing the messages on behalf of the station's underwriters, all of
whom are for-profit entities. PRC provided information representing that,
aggregately, the eight subject announcements were repeated several
thousand times from July 2003, through September 2004.
6. After careful review of the record in this case, we find that the eight
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,
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 made either directly or by customer testimonials. For example,
the announcement for Post Net invites business patronage and distinguishes
the shop from its competitors by stating, "Post Net is your one-stop shop
for black and white [and] color copies...You can stop by one of our two
locations. Or you may call [telephone number]." The announcements for
Christian Brothers Automotive, G&F Air Conditioning & Heating, Jonestreet
Mortgage, Sock-Hop & Inflatable Wonderland and Schilitterbahn Water Park
all contain claims of superior service and qualitative characterizations,
such as "Christian Brothers takes pride in their honest and reliable
service;" "G&F came out that day and the service was terrific;" "Having
the...character and integrity to do what we [i.e. Jonestreet] say we're
going to do;" "Our [i.e. Sock Hop's] dedicated, friendly staff loves
children and provides a safe atmosphere for you and your child;" and
"[I]t's [i.e., Schlitterbahn] been named America's number one water park
... filled with cutting edge attractions." The announcements for Rockin'
Tomato Pizza Company included clear comparative statements - "a unique
eatery" - and qualitative descriptions - "made with only the freshest
ingredients" and a "fun family environment." Similarly, the announcements
for Double Dave's Pizzaworks are qualitative in nature, including "[w]hen
you need a break they['ve] got the right food and it's a really great
place," and "their world-famous pepperoni rolls."
7. Contributing to our finding is the fact that many of these
announcements appear to exceed thirty seconds in length. Although the
Commission has not imposed quantitative limits on the length of
underwriting announcements, it has found that the longer the
announcements, the more likely they are to contain material, as here, that
is inconsistent with the "identification only" purpose of such
announcements.
8. Specifically, we find that PRC broadcast unlawful announcements on
behalf of Schlitterbahn Water Park from July 2003 through August 2003. We
further find that PRC broadcast unlawful announcements on behalf of Double
Dave's Pizzaworks and G&F Air Conditioning & Heating from July 2003
through July 2004. For varying periods between July 2003 and September
2004, PRC made unlawful announcements on behalf of Rockin' Tomato Pizza
Company, Jonestreet Mortgage, Sock-Hop & Inflatable Wonderland, Post Net,
and Christian Brothers Automotive.
9. In its November 17th Reply, the Complainant argues that Station KXPW-LP
continued to air prohibited underwriting announcements subsequent to
having received our August 9th LOI, and that this prompted it to file its
August 24th Complaint. The Complainant contends that the fact that these
later broadcasts were made constitutes not only evidence of further
underwriting rule violations, but casts doubt on the accuracy of certain
representations PRC made to the Commission in its September 13th Response
that, according to the Complainant, implied that the station had by then
achieved underwriting rule compliance. We reject this argument. In the
August 9th LOI, we directed PRC to respond to specific and detailed
factual inquiries that asked the licensee to describe, among other things,
its station underwriting policies and procedures. In its September 13th
Response, PRC outlined the steps it had taken, and was continuing to take,
to modify its underwriting policies and procedures. Those steps apparently
included PRC's hiring of communications counsel after it had received the
August 9th LOI to assist it in evaluating and reforming its underwriting
practices, where necessary. There is no assertion in the September 13th
Response that PRC had achieved full compliance and PRC's recitation of the
steps it took to improve its compliance in no way implies such a
certification. Moreover, even assuming, arguendo, that PRC had committed
additional apparent underwriting rule violations while preparing to
respond to our August 9th LOI, that fact alone does not raise a question
of misrepresentation or lack of candor. There is, therefore, no basis on
which to conclude that PRC failed to observe its duty to be truthful and
candid before the Commission.
B. Proposed Action
10. 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."
11. In the Christian Voice NAL, the Bureau proposed a twenty thousand
dollar ($20,000) forfeiture against a noncommercial educational broadcast
licensee for airing a significant number of announcements in apparent
violation of the Commission's underwriting rules over a fifteen-month
period of time. Here, we find that PRC willfully and repeatedly broadcast
eight separate advertisements, comprising thousands of separate
broadcasts, in apparent 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 lengthy period of time over which
the prohibited announcements were aired, the large number of announcements
and broadcasts involved, and their often blatantly promotional nature.
Based on all the circumstances, and after examining forfeiture actions in
other recent underwriting cases, we believe that a forfeiture of twenty
thousand dollars ($20,000) is appropriate.
12. We further caution PRC and all noncommercial educational licensees
that, in future cases, violations of the type encountered here may result
in even harsher sanctions than we propose in this case. Licensees have an
ongoing duty to understand and carefully abide by the limitations in the
Act and in our rules on advertising on noncommercial stations. The
multiple, longstanding, and blatant nature of the violations here reflect
an unacceptable disregard for that duty and we intend to deter such
behavior in the future by appropriate necessary means, including
substantially higher forfeitures.
13. Accordingly, applying the Forfeiture Policy Statement and the
statutory factors to this case, we conclude that PRC is apparently liable
for a forfeiture in the amount of twenty thousand dollars ($20,000) for
apparently willfully and repeatedly violating the Commission's
underwriting rules.
IV. ORDERING CLAUSES
14. 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, Power Radio Corporation, licensee of noncommercial educational
Station KXPW-LP, Georgetown, Texas, IS HEREBY NOTIFIED OF ITS APPARENT
LIABILITY FOR A FORFEITURE in the amount of twenty thousand dollars
($20,000) for willfully and repeatedly broadcasting advertisements in
violation of Section 399B of the Act, 47 U.S.C. S: 399b, and Sections
73.503 and 73.801 of the Commission's rules, 47 C.F.R. S:S: 73.503 and
73.801, during the period July 2003, through September 2004.
15. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules that within thirty days of the release of this Notice, PRC SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed forfeiture.
16. 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. Power
Radio Corporation 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.
17. 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.
18. 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.
19. IT IS FURTHER ORDERED that the above-referenced complaints filed by
Ixoye Productions, Inc. ARE GRANTED to the extent indicated herein and ARE
OTHERWISE DENIED, and the instant complaint proceeding IS HEREBY
TERMINATED.
20. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail/Return Receipt Requested, to Power Radio Corporation, P.O.
Box 73, Georgetown, Texas 78627, to its counsel, Lauren Lynch Flick, Esq.,
Pillsbury Shaw Pittman, L.L.P., 2300 N Street, N.W., Washington, D.C.
20037-1128, and by regular mail to counsel for the Complainant, Ixoye
Productions, Inc., Barry A. Freidman, Esq., Thompson Hine, L.L.P., 1920 N
Street, N.W., Washington, D.C. 20036-1600.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
ATTACHMENT
The following text was transcribed from underwriting announcements
broadcast over noncommercial educational Station KXPW-LP, Georgetown,
Texas.
Double Dave's Pizzaworks
Musical Jingle: Let's go to Double Dave's, Double Dave's. They've got the
pizza with that fresh made taste to put a smile on your face. Let's go to
Double Dave's, Double Dave's. When you need a break they got the right
food and it's a really great place.
Hey Power FM family, if you're looking for a family kind of place, with
great pizza, at affordable prices, Double Dave's Pizzaworks [is] in east
Round Rock. Double Dave's is a fun place to eat for lunch or diner with a
large variety of pizzas, stromboli, stuffin[g]s, and their world-famous
pepperoni rolls. Double Dave's also has a party room for special birthday
celebrations, team get-togethers, or other group functions. They feature a
daily lunch buffet with the same great food you can order in the
restaurant or for delivery. Double Dave's Pizzaworks is located on Highway
79 about a mile east of I-35 in Round Rock. Double Dave's phone number is
388-DAVE. Double Dave's Pizzaworks, your neighborhood pizza place.
Musical Jingle: Let's go to Double Dave's, Double Dave's. They've got the
pizza with that fresh-baked taste to put a smile on your face. Let's go to
Double Dave's.
G&F Air Conditioning & Heating
V1: Hey Lisa, I'm wondering if you know a reliable air conditioning
company to contact. My air conditioner just went out and it's ten o'clock
at night.
V2: I sure do. One of my colleagues at work told me about G&F Air
Conditioning & Heating. She said that G&F came out that day and the
service was terrific. The technician explained what was wrong and what he
had to do and how much it would cost to fix it right there and then. She
said that the AC is running better than ever and the best part about it is
she wasn't charged an arm and a leg. And I know that G&F is available
twenty-four hours a day, seven days a week. So I'm keeping G&F's phone
number handy.
V1: What was that number for G&F?
V2: G&F's number is 515-5289. That's 515-5289. Did you get that? That's
515-5289.
V1: Thanks, Lisa. Bye!
G&F Air Conditioning & Heating-doing service calls and installations for
residential and commercial, open twenty-four hours, seven days a week. You
may call G&F at 515-5289. That's 515-5289.
Rockin' Tomato Pizza Company
Rockin' Tomato Pizza Company is a unique eatery offering a variety of
traditional and deep dish pizzas, hot sub sandwiches, salads, pastas,
calzones, and even burgers, all made with only the freshest ingredients.
Rockin' Tomato Pizza Company offers as fun family environment. Rockin'
Tomato Pizza Company is located at 920 East Palm Valley Road in round Rock
about a mile east of I-35. For more information, you may call 388-EATZ.
That's 388-3289. Rockin' Tomato Pizza Company -the little pizza joint that
rocks.
Schlitterbahn Water Park
Musical Jingle: The hottest coolest times in Texas come play at
Schlitterbahn.
Enjoying the Texas summer by the river or by the beach. Schlitterbahn's
got both covered. That's right, there are two Schlitterbahn water parks.
Cool off along the banks of the spring-fed river at the original
Schlitterbahn Water Park Resort in New Braunfels. It's one of the largest
water parks in the world, and it's been named America's number one water
park by the travel channel. Plus the park is surrounded by resort
accommodations so you can stay right where you play and bask under the
tropical sun at Schlitterbahn Beach Water Park. A tropical paradise at the
southern tip of Texas next to the gulf of Mexico on South Padre Island,
filled with cutting-edge attractions, and creature pleasing comforts.
Schlitterbahn Beach offers you a completely different kind of experience.
And while each park is unique, both are family owned, family operated, and
family friendly. Park for free, bring your own picnic. There is always
Coca-Cola. The two hottest coolest times in Texas, Schlitterbahn Water
Park Resort in New Braunfels, and Schlitterbahn Beach Water Park on South
Padre Island. For more information, schliterbahn.com
Jonestreet Mortgage
V1: Dave, you believe in miracles?
V2: Why yes, honey, I do.
V1: Have you seen one lately?
V2: Why yes, honey, I have. When we bought this house my mortgage loan
officer returned my calls every time. Did what he said he would do. We got
just what we needed. And our loan even closed on time.
V2: Why yeah, that is a miracle.
V3: Hi. This is Chuck Jones, at Jonestreet Mortgage. Thankfully, miracles
still happen today. However, it does not require a miracle for you to get
the home loan you deserve. At Jonestreet Mortgage, our business philosophy
is simple. Having the discipline to return your phone calls, the character
and integrity to do what we say we're going to do, the experience to get
you the loan you need, [and to] close on time, is what my professional
team is all about. At Jonestreet Mortgage, anyone who touches your loan
file has over ten years experience in the mortgage and banking industry.
Let our experience take the stress out of your next home purchase and
leave the miracles for the things that really need it. For more
information, Chuck Jones at Jonestreet Mortgage, 619-8786. That's
619-8786, or online at jonestreetmortgage.com
Sock-Hop & Inflatable Wonderland
Inflatable Wonderland, Austin's only indoor playground just for kids. You
may come by or visit our new location at Lakeline Mall, lower level, below
the movie theater and food court. Inflatable Wonderland specializes in
birthday parties in our safe, fun-filled inflatable playground. We have
Spiderman moon walks, Disney Princess moonwalks, obstacle courses, slides,
crawl mazes, and our most popular, Dragon Hide and Slide. Our dedicated,
friendly staff loves children and provides a safe atmosphere for you and
your child. Inflatable Wonderland offers you and your child an
interactive, physically challenging playtime. We welcome moms, clubs, day
cares, churches, and other groups to play with us. Sock Hop's new location
is located inside Lakeline mall. You may call 377-JUMP. That's 377-5867,
for more information. Or on the web at sockhop.com
Post Net
Whatever you need to create, duplicate or deliver, Post Net is your
one-stop shop for black and white/color copies, printing services, resume
services, Fed Ex, UPS, and USPS. Private mailboxes, office supplies,
binding, laminating, and much more. You can stop by one of our two
locations-Parmer Lane and 1431 in Cedar Park, and Parmer Lane and McNeil
in Austin. Or you may call 381-5855. That's 381-5855. Post Net, your place
to create, duplicate, and deliver.
Christian Brothers Automotive
You have a lot riding on your car's reliability. Christian Brothers takes
pride in their honest and reliable service. Their ASE-certified master
technicians will never work on your vehicle until you understand and
approve the estimate. You can relax in their clean and comfortable waiting
room or take advantage of their free local shuttle service. From simple
light-bulb replacement to complex engine diagnosis and repairs, you can
trust Christian Brothers Automotive. Two locations to serve you. The Cedar
Park location at 918-2886. That's 218-2886. Or the Round Rock location at
248-1000. That's 248-1000. Or you may look them up on the web at
www.cba-cp or www.cba-rr.com. For more information, you may contact them
and they will provide you with information to help maintain your vehicle
and ensure your vehicle's reliability. Christian Brothers Automotive,
caring for the family, caring for the family car.
See 47 U.S.C. S: 399b.
See 47 C.F.R. S:S: 73.503, 73.801. We note that Section 73.801 makes
certain rules, including Section 73.503, applicable to low power FM
stations, such as Station KXPW-LP.
See Letter from Barry A. Friedman, Esq., to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, dated
November 5, 2003 ("November 5th Complaint"), filed on behalf of Ixoye
Productions, Inc., licensee of noncommercial educational Station KNLE-FM,
Round Rock, Texas ("Complainant").
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to PRC, dated August 9, 2004
("August 9th LOI").
See Letter from Lauren Lynch Flick, Esq., to Kenneth M. Scheibel, Jr.,
Attorney, Investigations and Hearings Division, Enforcement Bureau, dated
September 13, 2004, and filed on behalf of PRC ("September 13th
Response").
See Letter from Barry A. Friedman, Esq., to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, dated
August 24, 2004 ("August 24th Complaint"); Letter from William D.
Freedman, Deputy Chief, Investigations and Hearings Division, Enforcement
Bureau, to PRC, dated October 20, 2004 ("October 20th LOI").
See Letter from Lauren Lynch Flick, Esq., to Kenneth M. Scheibel, Jr.,
Attorney, Investigations and Hearings Division, Enforcement Bureau, dated
November 9, 2004 ("November 9th Response"); Letter from Barry A. Friedman,
Esq., to William D. Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, dated November 17, 2004 ("November 17th
Reply"); Letter from Lauren Lynch Flick, Esq., to Kenneth M. Scheibel,
Jr., Attorney, Investigations and Hearings Division, Enforcement Bureau,
dated January 24, 2005 ("January 24th 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.
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 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) (collectively "Xavier").
See September 13th Response at 3-5; November 9th Response at 3-5. PRC
claims that it cannot provide specific information identifying the exact
times and dates that the subject underwriting announcements aired, but
instead relies on its underwriter contract information to estimate the
period of time during which the announcements aired, and the number of
daily repetitions that were made. See id. Thus, our findings herein are
based on that information.
See id.
A ninth announcement concerning the Powerline Conference was aired, but
PRC represents that the underwriters of the Powerline Conference and
Exodus Ministries are not-for-profit entities. See September 13th Response
at 5; November 9th Response at 4. Accordingly, that announcement is not
considered here.
See September 13th Response at 3-5 & Exhibits A-C attached thereto;
November 9th Response at 3-5 & Exhibit A attached thereto.
Because promotional messages made on behalf of not-for-profit entities are
permissible, we do not include those made on behalf of Powerline
Conference in our finding. See Commission Policy Concerning the
Noncommercial Nature of Educational Broadcast Stations, Report and Order,
90 FCC 2d 895, 900 n.16 (1982), recon., 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 n.18.
See Attachment, Post Net announcement.
See Attachment, Christian Brothers Automotive announcement, G&F Air
Conditioning & Heating announcement, Jonestreet Mortgage announcement,
Sock-Hop & Inflatable Wonderland announcement, and Schlitterbahn Water
Park announcement.
See Attachment, Rockin' Tomato Pizza Company announcement, and Double
Dave's Pizzaworks announcement.
See Public Notice, supra n.18.
The announcements made on behalf of Schlitterbahn Water Park, which were
aired in exchange for consideration consisting of trade-out giveaway
tickets, were not among those revised in June 2004 or September 2004
because they were aired only from July 2003 through August 2003. See
September 13th Response at 4-5 & Exhibit C.
PRC represents that, in June 2004, it revised the underwriting
announcements concerning Double Dave's Pizzaworks and G&F Air Conditioning
& Heating, and provided to us their amended texts for evaluation. See
September 13th Response at 3-5 & Exhibits D-E attached thereto. We find,
however, that these announcements, even as revised, remained impermissibly
promotional.
PRC contends that it retained communications counsel and undertook
"targeted editing" in September 2004 with regard to each of the foregoing
announcements, except those made on behalf of Rockin' Tomato Pizza Co. See
November 9th Response at 3. We find that the September 2004 revisions
appear to render the announcements acceptable under our rules. With
respect to the Rockin' Tomato Pizza Company announcement, PRC submitted
revised text but did not indicate whether or when it was actually
utilized. Id. Being uncertain whether the purported revision was ever
substituted for the earlier promotional text, we will not consider PRC's
broadcast of any of the post-September 2004 Rockin' Tomato Pizza Co.
announcements in conjunction with our determination of the forfeiture
amount.
See generally, November 17th Reply.
See id.; see also 47 C.F.R. S: 1.17.
See September 13th Response at 5-6.
See id.
See id.
See 47 U.S.C. S: 503(b); 47 C.F.R S: 1.80.
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.
See Christian Voice of Central Ohio, Inc.(WCVZ(FM)), Notice of Apparent
Liability, 19 FCC Rcd 23663 (Enf. Bur. 2004) (twenty thousand dollar
($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").
This finding does not include those announcements made on behalf of
Powerline Conference or Exodus Ministries because, as noted, PRC
represents that they operate as not-for-profit entities. See September
13th Response at 5; November 9th Response at 4.
See, e.g., Christian Voice, supra n.42.
For purposes of the forfeiture proceeding initiated by this NAL, PRC shall
be the only party to this proceeding.
Federal Communications Commission DA 09-51
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Federal Communications Commission ____DA 09-51