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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
NATIONAL FARMWORKERS SERVICE ) EB-07-IH-5266
CENTER, INC. ) Facility ID No. 21210
Licensee of Noncommercial ) NAL/Account No. 201032080018
Educational Station
) FRN 0006911408
KUFW(FM), Woodlake, California
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 15, 2010 Released: June 15, 2010
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that National Farm Workers Service Center, Inc. (the "Licensee"), licensee
of noncommercial educational Station KUFW(FM), Woodlake, California (the
"Station"), 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 the Licensee is apparently liable for a monetary forfeiture
in the amount of $12,500.
II. BACKGROUND
2. On August 30, 2006, the Enforcement Bureau's (the "Bureau's") San
Francisco Field Office conducted an inspection of the Station and
recorded a segment of its programming that appeared to include
commercial announcements. Those announcements are excerpted in the
attachment to this NAL. Thereafter, the Bureau sent letters of inquiry
to the Licensee on August 26, 2008, and May 18, 2009. The Licensee
responded to the Bureau's inquiries on September 24, 2008, June 17,
2009, and August 27, 2009.
3. The Licensee acknowledges that it broadcast four different
announcements over 2,000 times in total between March 2006 and
December 2006, one on behalf of Mario's Auto Sales, two on behalf of
Big Brand Tire, and one on behalf of Muebleria La Tapatia. The
Licensee acknowledges that it executed contracts with these three
for-profit entities to air the announcements for monetary
remuneration. The Licensee avers that the Bureau's transcript and
translation for the Mario's Auto Sales announcement are consistent
with the announcement aired by the Station. Finally, the Licensee
provided the transcript and translation for the Big Brand Tire and
Muebleria La Tapatia announcements.
III. DISCUSSION
4. 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 the Licensee is apparently liable for a forfeiture in
the amount of $12,500 for its apparent willful and repeated violation of
the Commission's underwriting rules.
A. The Licensee Has Willfully and Repeatedly Broadcast Advertisements in
Apparent Violation of Section 399B of the Act and Section 73.503(d) of
the Commission's Rules
5. 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.
6. After careful review of the record in this case, we find that the four
announcements set forth in the attached transcript and made on behalf of
three for-profit entities 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 distinguish favorably the
respective for-profit underwriters from their competitors by stating or
implying that they offer superior service, products or price, describe
their underwriters through comparative and qualitative references, and
include inducements intended to entice customers to visit their
businesses.
7. Specifically, we find that the Mario's Auto Sales announcement
impermissibly promotes the underwriter and its product through the use of
favorable and qualitative expressions such as "beautiful Harley Davidson
light trucks," "we have it here," and "where we are proud to be Mexicans."
This announcement also contains inducements, such as "whatever vehicle
with no down payment."
8. The two announcements for Big Brand Tire impermissibly seek to
distinguish the underwriter's products. The first announcement claims that
the company's rims "will make you stand out" and "make your vehicle
unique." It also uses comparative phrasing such as, "We have the most
recent selection when it comes to rims from A to Z" and "we don't give you
a cat for a rabbit here." The announcement also includes an inducement for
free tire alignments and free flat tire repairs to encourage patronage.
The second announcement contains qualitative statements such as the
company "knows about tires." It also uses comparative phrasing by stating
that the company's product "reduces [the] loss [of tire] pressure" and has
"less risk of suffering damages . . . last longer and [is] not too
expensive." It promises that patronage could cause you to "save more . . .
[and] save more in gas per mileage."
9. Similarly, the Muebleria La Tapatia announcement includes impermissible
comparative expressions that attempt to distinguish the company from its
competitors, such as "they want to imitate, but countrymen, they will
never be able to be the same." Additionally, this announcement contains
qualitative statements and inducements including, "the hottest prices are
at MLT," and "everyone else is melting because they can't [compete] with
our factory prices," "MLT offers you easy credit," and "the one that gives
credit to almost everyone."
10. None of the foregoing announcements are permissible under Xavier
because each, in the context presented is "clearly promotional." Each
announcement refers either to specific qualities or attributes of the
respective underwriters and their products and seeks to distinguish them
from competitors, or contains language of inducement.
B. Proposed Action
11. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the rules, the base forfeiture for violations of the enhanced
underwriting requirements is $2,000. In assessing the monetary forfeiture
amount, we must take into consideration the factors enumerated in Section
503(b)(2)(E) of the Act, which include "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."
12. In this case, it appears that, from March 2006 through December 2006,
the Licensee willfully and repeatedly broadcast four separate
advertisements over 2,000 times in total in violation of Section 399B of
the Act and Section 73.503(d) of the Commission's rules. We have
considered the period of time over which the prohibited announcements were
aired and the number of announcements at issue, as well as the forfeiture
actions in other underwriting cases, to determine the forfeiture
appropriate for this matter. Applying the Forfeiture Policy Statement and
the statutory factors to this case, we conclude that the Licensee is
apparently liable for a forfeiture in the amount of $12,500 for willfully
and repeatedly violating the Commission's underwriting rules.
13. As we stated in Power Radio Corporation, we caution the Licensee 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 concerning
advertising on noncommercial stations. The nature of the violations here
reflects an unacceptable disregard for that duty and we intend to deter
such behavior in the future by appropriate necessary means, including
substantially higher forfeitures.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, 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, National Farm Workers Service Center, Inc.,
licensee of noncommercial educational television Station KUFW (FM),
Woodlake, California, is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of $12,500 for willfully and repeatedly
broadcasting advertisements in violation of Section 399B of the Act, 47
U.S.C. S: 399b and Section 73.503(d) of the Commission's rules, 47 C.F.R.
S: 73.503(d).
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, the Licensee
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 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. The Licensee will also send
electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, Anjali.Singh@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 should also be sent by electronic mail to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, Anjali.Singh@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 ALSO ORDERED that the complaint IS GRANTED to the extent
indicated herein, 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 National Farm Workers Service
Center, Inc., P.O. Box 62, Keene, California, 93531, and George R.
Borsari, Esq., Borsari & Paxson, 4000 Albemarle Street, N.W., Suite 100,
Washington, D.C. 20016.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief
Enforcement Bureau
ATTACHMENT
The following text was transcribed and translated from Spanish to English
from underwriting announcements broadcast over noncommercial educational
Station KUFW(FM), Woodlake, California from March 2006 through December
2006.
Mario's Auto Sales
Nine in the morning with a few minutes, we rise early, we are already
here, and all the cars are arriving here at Mario's Auto Ford. Thank you
Mouse for giving me the opportunity to greet all the people that listen to
La Campesina, our working people [unintelligible] of the morning, to all
housewives that are already at home. We send our regards to the people who
are looking for a car, a light truck, an SUV, whatever type of economical
car in gasoline; we have it here at Mario's Auto Sales. We have here light
Chevy trucks, beautiful Harley Davidson light trucks, Escalade
[unintelligible], whatever vehicle with no down payment [unintelligible]
and you can meet us here at Alto de Sierra here [unintelligible] at Grape
at 1630 East Monte Way, here in the City of [unintelligible] California,
at this time of the morning, our telephone without cost so that you can
call 1-800-700-6834, we are here to help you. I want to congratulate the
Lopez family that visited us early this morning here at Mario's Auto
Sales, in a Toyota 2001, in the City of [unintelligible] regards
[unintelligible] and we continue at Mario's Auto Sales. [For] whatever
information[,] the number without cost 1-800-700-6834[,] where we are
proud to be Mexicans.
Big Brand Tire
Announcement #1
Hello I am Carolina Murillo, I'm here to talk to you about Big Brand
Extreme, a collection of rims that fit your style from Big Brand Tire[,]
th[ey] w[ill] make you stand out, make your vehicle unique. We have the
most recent selection when it comes to rims from A to Z. Big Brand Tire is
locally staffed by its owners[. F]or more than 35 years, we have and sell
what we advertise[. W]e don't give you a cat for a rabbit here, without
commitments to purchase[. W]e have [] the most simple to the most
extravagant, hauling accessories[.] Big Brand Tire offers without cost
tire alignment check ups regardless of where you bought your tires[.] Big
Brand Tire has tire brands like Michelin, Goodyear[], Pirelli and Cooper.
In Big Brand Tire we have factory packages to raise or lower your car at
your preference[. Y]ou might visit the new Po[r]terville location, south
of Plano and two more locations in Bakersfield, on White Lane and 21st
Street[.] Big Brand Tire, where we are always available to serve you in
Spanish.
Big Brand Tire
Announcement #2
Your friend here Carolina Murillo to say hi[.] I would like to speak to
you about Big Brand Tire and its more than 13 locations[. W]e are here to
serve you with some of the most well known brands, such as, Michelin,
Goodyear[], Pirelli and Cooper for less[.] Big Brand Tire knows about
tires[. W]e now offer tires with nitrogen filling. Tires with nitrogen
have larger molecules that reduces [the] loss [of tire] pressure[,] thus
you have less risk of suffering damages[. S]tudies have shown that tires
filled with nitrogen last longer and are not too expensive[. Y]ou could
save more because there's a [lesser] chance to get a flat tire[,]
consequently you would save more in gas per mileage[.] Big Brand Tire is
opened Saturdays until 5 p.m.[] You can visit us at our new location in
Po[r]terville south of Plano, two more locations in Bakersfield on White
Lane and 21st Street[. W]e have and sell what we advertise, we don't give
you a cat for a rabbit here, without commitments to purchase[.] Big Brand
Tire offers tire alignment check ups and flat tire repairs at no cost[,]
regardless of where you bought your tires[. L]anguage is not a problem, we
speak Spanish[. G]reat savings, great service, Big Brand Tire.
Muebleria La Tapatia ("MLT")
From [the top], they want to imitate us, but countrymen, they will never
be able to be the same[. A]ttention Farmersville and surrounding areas,
prices are on fire, at MLT in Farmersville[. Y]es, you listened
correctly[,] the hottest prices are at MLT! Hurry and take advantage of
this hot furniture sale[. E]veryone else is melting because they can't
[compete] with our factory prices[.] MLT offers you easy credit regardless
of whether you have or not. Credit here[! N]o one will be turned away, and
with your good credit MLT gives you its interest[. D]on't let people tell
you stories, because they may lie to you[. W]e are MLT, the one that gives
credit to almost everyone, 514 Farmersville Blvd in Farmersville, phone
474-5537.
See 47 U.S.C. S: 399b(a).
See 47 C.F.R. S: 73.503(d).
See RAMS Case Report, Case Number EB-06-SF-272, dated July 5, 2007 ("RAMS
Report").
See Letter from Kenneth M. Scheibel, Jr., Assistant Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, to National Farm Workers Service Center, Inc., dated August
26, 2008 ("First LOI"); Letter from Kenneth M. Scheibel, Jr., Assistant
Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission to National Farm Workers Service Center, Inc.,
dated May 18, 2009 ("Second LOI").
See Letter from George R. Bosari, Jr., Attorney for National Farm Workers
Service Center, Inc., to Marlene H. Dortch, Secretary, Federal
Communications Commission, dated September 24, 2008 ("First LOI
Response"); Letter from George R. Borsari, Jr., Attorney for National Farm
Workers Service Center, Inc., to Marlene H. Dortch, Secretary, Federal
Communications Commission, dated June 17, 2009 ("Second LOI Response");
Supplemental Letter from Anne Thomas Paxson, Attorney for National Farm
Workers Service Center, Inc., to Anita Patankar-Stoll, Attorney Advisor,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated August 27, 2009 ("Supplement").
See Second LOI Response at 2.
See id.
The Licensee states that it cannot locate its own text and translation of
the Mario's Auto Sales announcement, but it believes that the Bureau's
script is consistent with a prerecorded call that was playing on air. See
id.
See Supplement at 1-3.
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), recons. denied, 7 FCC Rcd 3454 (1992).
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).
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, Memorandum Opinion and Order, 5 FCC Rcd 4920, 4921
(1990) ("Xavier") (citing 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); Public Notice,
supra note 20).
See id.
Cf. Commission Policy Concerning the Noncommercial Nature of Educational
Broadcast Stations, 90 FCC 2d at 900 n.16 (noting that institutions which
qualify under IRS guidelines as not-for-profit organizations may be
promoted).
See Attachment, infra, Mario's Auto Sales Announcement.
See id.
See id.
See Attachment, infra, Big Brand Tire Announcement #1, Big Brand Tire
Announcement #2.
See Attachment, infra, Big Brand Tire Announcement #1.
See id. This is a Spanish-language expression that means "we won't pass
off a fake product for the real thing."
See Attachment, infra, Big Brand Tire Announcement #1.
See Attachment, infra, Big Brand Tire Announcement #2.
See id.
See Attachment, infra, Big Brand Tire Announcement #2.
See Attachment, infra, Muebleria La Tapatia Announcement.
See id.
See id.
See id.
See Xavier, 5 FCC Rcd at 4920 P: 6.
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, e.g., Caguas Educational TV, Inc., Notice of Apparent Liability for
Forfeiture, 20 FCC Rcd 6093 (Enf. Bur. 2005) ($10,000 forfeiture proposed
for two announcements broadcast over 1600 times over six months)
(forfeiture paid) ("Caguas"). The instant case is more egregious than
Caguas in many respects, including more violative announcements at issue
and more repetitions of the content being aired, that serve to justify a
forfeiture higher than the $10,000 forfeiture imposed in Caguas.
See Power Radio Corp., Notice of Apparent Liability for Forfeiture, 24 FCC
Rcd 2572, 2577 P: 12 (Enf. Bur. 2009).
Federal Communications Commission DA 10-1077
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Federal Communications Commission DA 10-1077