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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) EB-09-IH-0015
In the Matter of
) NAL Account No.
Tri-State public communications, INC. 201132080010
)
Licensee of Noncommercial Educational FRN No. 0016955916
Station WHDD-FM, Sharon, Connecticut )
Facility ID No. 173310
)
)
ORDER
Adopted: December 15, 2010 Released: December 16, 2010
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Tri-State Public
Communications, Inc. (the "Licensee"). The Consent Decree terminates
an investigation by the Bureau against the Licensee for possible
violations of Sections 317, 399B, and 507 of the Communications Act of
1934, as amended, and Sections 73.503(d) and 73.1212 of the
Commission's Rules regarding the broadcast of sponsorship
identification and underwriting announcements over Station WHDD-FM,
Sharon, Connecticut (the "Station").
2. The Bureau and the Licensee have negotiated the terms of the Consent
Decree that resolve this matter. A copy of the Consent Decree is
attached hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether the Licensee possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and Sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that the third-party complaint and allegations
against the Station and/or the Licensee before the Enforcement Bureau
related to the above-captioned investigation as of the date of this
Consent Decree ARE DISMISSED.
8. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent to Tri-State Public Communications, Inc., c/o WHDD-FM, 67
Main Street, Sharon, Connecticut 06069, and to its counsel, Brendan
Holland, Davis Wright Tremaine, LLP, 1919 Pennsylvania Avenue N.W., Suite
200, Washington, D.C. 20006-3402, by first-class, certified mail, return
receipt requested.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) EB-09-IH-0015
In the Matter of
) NAL Account No.
Tri-state public communications, INC. 201132080010
)
Licensee of Noncommercial Educational FRN No. 0016955916
Station WHDD-FM, Sharon, Connecticut )
Facility ID No. 173310
)
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and Tri-State Public Communications,
Inc. (the "Licensee"), by their authorized representatives, hereby enter
into this Consent Decree for the purpose of terminating the Enforcement
Bureau's investigation into whether the Licensee violated Sections 317,
399B, and 507 of the Communications Act of 1934, as amended, and Sections
73.503(d) and 73.1212 of the Commission's Rules, in connection with the
broadcast of underwriting announcements over Station WHDD-FM, Sharon,
Connecticut (the "Station"), and the Licensee's compliance with the
Sponsorship Identification Laws.
I. DEFINITIONS
2. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Adopting Order" or "Order" means an Order by the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "Complaint" means the third party complaint received by or in the
possession of the Bureau, forming the basis for the Bureau's February
23, 2009, and October 22, 2009, Letters of Inquiry, regarding whether
the Licensee violated the Commission's Underwriting and Sponsorship
Identification Laws in connection with its operation of the Station on
November 3 and 11, 2008, and on December 2 and 8, 2008.
f. "Compliance Plan" means the program described in paragraph 11 and the
Attachment to this Consent Decree.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigation" means the investigation concerning the Complaint
commenced by the Bureau's Letters of Inquiry regarding whether the
Licensee violated the Commission's Underwriting and Sponsorship
Identification Laws in connection with its operation of the Station on
November 3 and 11, 2008, and on December 2 and 8, 2008.
i. "Licensee" means Tri-State Public Communications, Inc. and its
predecessors-in-interest and successors-in-interest as licensee of the
Station.
j. "Parties" mean the Licensee and the Bureau.
k. "Rules" mean the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
l. "Sponsorship Identification Laws" mean, individually or collectively,
47 U.S.C. S: 317, 47 U.S.C. S: 508, 47 C.F.R. S: 73.1212, and/or any
Commission policy relating to sponsorship identification or the
practices commonly referred to as "payola" or "plugola."
m. "Station" means noncommercial educational Station WHDD-FM, Sharon,
Connecticut (Facility ID No. 173310).
n. "Underwriting Laws" mean 47 U.S.C. S: 399b and 47 C.F.R. S: 73.503(d).
II. BACKGROUND
3. On December 23, 2008, the Commission received a Complaint which
alleged that the Licensee had aired underwriting announcements
containing "calls to action and qualitative terms intended to induce
business patronage." The Complaint alleged that the Licensee had
received consideration in exchange for the broadcast of the
announcements. The Complaint also provided a recording of material
broadcast by the Station. Based on the Complaint and recording, it
appeared that the Licensee aired various commercial announcements,
including one in which it failed to identify the sponsor. On February
23, 2009, and October 22, 2009, the Bureau issued Letters of Inquiry
to the Licensee, which directed the Licensee, among other things, to
submit sworn written statements in response to questions relating to
alleged violations of the Underwriting and Sponsorship Identification
Laws. The Licensee responded on March 25, 2009, and on December 4,
2009.
4. The Underwriting Laws define advertisements as program material
broadcast "in exchange for any remuneration" and intended to "promote
any service, facility, or product" of for-profit entities. Section
399b(b)(2) specifically provides that noncommercial educational
stations may not broadcast advertisements. Although contributors of
funds to such stations may receive on-air acknowledgements of their
support, 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 and is
consistent with the Commission's Rules and decisions establishing
compliant underwriting announcements. Consequently, the Commission
expects licensees to exercise reasonable, "good faith" judgment in
this area, and affords some latitude to the judgments of licensees who
do so. The underwriting announcements at issue here may have violated
the Underwriting Laws because they appear to exceed the bounds of what
is permissible and within licensee discretion under the Act and
pertinent Commission precedent.
5. The Sponsorship Identification Laws establish the general obligation
of a broadcast station to air sponsorship identification announcements
whenever any "money, service or other valuable consideration" is paid
or promised to the station for the broadcast of program material. The
Commission has noted that the sponsorship identification rules are
"grounded in the principle that listeners and viewers are entitled to
know who seeks to persuade them" and has warned that it would take
enforcement action against broadcast stations and cable operators that
did not comply with its rules. A proviso to these sections exempts
stations from the requirement to make sponsorship identification
announcements in certain circumstances, but these exemptions do not
apply when the consideration paid or promised to a station is in the
form of "money." In this case, the material aired by the Licensee may
not have been adequately identified as sponsored, in violation of the
Sponsorship Identification Laws.
6. The Bureau and Licensee acknowledge that any proceedings that might
result from the Investigation of the Complaint would be time-consuming
and would require substantial expenditure of public and private
resources. In order to conserve such resources, and to ensure
continued compliance by Licensee with the Underwriting and Sponsorship
Identification Laws, the Bureau and Licensee are entering into this
Consent Decree in consideration of the mutual commitments made herein.
III. TERMS OF AGREEMENT
7. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
8. Jurisdiction. The Licensee agrees that the Bureau has jurisdiction
over it and the matters contained in this Consent Decree and has the
authority to enter into and adopt this Consent Decree.
9. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the FCC releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
10. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
Investigation and dismiss the Complaint. In consideration for the
termination of said Investigation and dismissal of the Complaint, the
Licensee agrees to the terms, conditions, and procedures contained
herein. The Bureau further agrees that, in the absence of new material
evidence, the Bureau will not use the facts developed in this
Investigation through the Effective Date of the Consent Decree, or the
existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against the Licensee concerning the matters that were the
subject of the Investigation. The Bureau also agrees that it will not
use the facts developed in this Investigation through the Effective
Date of this Consent Decree, or the existence of this Consent Decree,
to institute on its own motion any proceeding, formal or informal, or
take any action on its own motion against the Licensee with respect to
the Licensee's basic qualifications, including its character
qualifications, to be a Commission licensee or to hold Commission
authorizations.
11. Compliance Plan. For purposes of settling the matters set forth
herein, the Licensee agrees to maintain a Compliance Plan related to
future compliance with the Act, the Commission's Rules, and the
Commission's Orders. The Plan will include, at a minimum, the
components found in the Attachment to this Consent Decree.
12. Compliance Reports. Licensee will file compliance reports with the
Commission ninety (90) days after the Effective Date, twelve (12)
months after the Effective Date, twenty-four (24) months after the
Effective Date, and upon expiration of this Consent Decree, three (3)
years after the Effective Date. Each compliance report shall include a
compliance certificate from the Compliance Officer, as defined in
paragraph 7 of the Compliance Plan in the Attachment, as an agent of
the Licensee, stating that the Compliance Officer has personal
knowledge that the Licensee: (i) has established operating procedures
intended to ensure compliance with the terms and conditions of this
Consent Decree, the Underwriting Laws, and the Sponsorship
Identification Laws, together with an accompanying statement
explaining the basis for the Compliance Officer's certification; (ii)
has been utilizing those procedures since the previous Compliance
Report was submitted; and (iii) is not aware of any instances of
non-compliance. The certification must comply with Section 1.16 of the
Commission's Rules and be subscribed to as true under penalty of
perjury in substantially the form set forth therein. If the Compliance
Officer cannot provide the requisite certification, the Compliance
Officer, as an agent of and on behalf of the Licensee, shall provide
the Commission with a detailed explanation of: (i) any instances of
non-compliance with this Consent Decree, the Underwriting laws, and
the Sponsorship Identification Laws; and (ii) the steps that the
Licensee has taken or will take to remedy each instance of
non-compliance and ensure future compliance, and the schedule on which
proposed remedial actions will be taken. All compliance reports shall
be submitted to the Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, Room 4-C330,
445 12th Street, S.W., Washington, D.C. 20554, with a copy submitted
electronically to Kenneth M. Scheibel, Jr., at
Kenneth.Scheibel@fcc.gov, Anjali K. Singh at Anjali.Singh@fcc.gov, and
Amelia Brown at Amelia.Brown@fcc.gov.
13. Termination Date. Unless stated otherwise, the requirements of the
Compliance Plan will expire three (3) years after the Effective Date.
14. Voluntary Contribution. Licensee agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $15,000.
The payment will be made in three installments of $5,000, payable as
follows: $5,000 on or before the twentieth day of the month following
the release of the Adopting Order; $5,000 on or before three months
after the date of the first payment; and payment of the balance of
$5,000 on or before six months after the date of the first payment.
The payment 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 in the
caption to the Adopting Order. 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). The
Licensee will also send electronic notification on the date said
payment is made to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Kenneth.Scheibel@fcc.gov Anjali.Singh@fcc.gov, and
Amelia.Brown@fcc.gov.
15. Waivers. The Licensee waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Order adopting this Consent Decree, provided the Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion. The Licensee shall retain the right to
challenge Commission interpretation of the Consent Decree or any terms
contained herein. If either Party (or the United States on behalf of
the Commission) brings a judicial action to enforce the terms of the
Adopting Order, neither the Licensee nor the Commission shall contest
the validity of the Consent Decree or the Adopting Order, and the
Licensee shall waive any statutory right to a trial de novo. The
Licensee hereby agrees to waive any claims it may otherwise have under
the Equal Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S:
1.1501 et seq., relating to the matters addressed in this Consent
Decree.
16. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which the Licensee does not expressly
consent), that provision will be superseded by such Commission rule or
Order.
17. Successors and Assigns. The Licensee agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
18. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, the Licensee does not
admit or deny noncompliance, violation or liability for violating the
Act, the Commission's Rules or Orders in connection with the matters
that are the subject of this Consent Decree.
19. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
20. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
21. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
22. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
P. Michele Ellison
Chief
Enforcement Bureau
________________________________
Date
________________________________
Marshall Miles
President
Tri-State Public Communications, Inc.
________________________________
Date
ATTACHMENT
Compliance Plan
The Licensee will develop a Compliance Plan for the purpose of furthering
compliance with the Underwriting and Sponsorship Identification Laws. At a
minimum, the Compliance Plan will consist of the following components:
1. Commitment to High Standards for the Identification of Program Sponsors
and the Airing of Underwriting Announcements and Sponsored Content. The
Licensee commits to enforcing high standards with respect to the
Sponsorship Identification Laws and the Underwriting Laws to avoid
violations.
2. Annual Report. The Compliance Officer, as defined below, shall submit
reports to the Licensee's Board of Directors concerning the Licensee's
compliance with this Compliance Plan. The first such report shall be
submitted within sixty (60) days of the Effective Date and additional
reports will be submitted at least annually thereafter.
3. Training of Station Employees.
A. Training on Sponsorship Identification Laws. The Licensee will conduct
appropriate training of its employees who are on-air talent and/or
materially participate in the on-air broadcast of program material or in
the making of programming decisions and their supervisory employees
("Programming Personnel") in the Sponsorship Identification Laws,
including the FCC's interpretation of such statutes and regulations
regarding payola and related issues.
B. Training on Underwriting Laws. The Licensee will conduct appropriate
training of Programming Personnel in the Underwriting Laws, including the
FCC's interpretation of such statutes and regulations regarding
underwriting.
C. Training Schedule. Training on both the Sponsorship Identification Laws
and the Underwriting Laws will be provided to all Programming Personnel
within sixty (60) days of the Effective Date. The training will be
provided to all new Programming Personnel within thirty (30) days after
they commence their duties. Refresher training will be provided to all
Programming Personnel at least once every twelve (12) months, regarding
existing guidelines and, where applicable, pertinent changes to the
Underwriting and Sponsorship Identification Laws.
4. Multi-level Review of Underwriting Content and Sponsored Content.
Licensee will use a multi-level review procedure for underwriting content
and sponsored content to be broadcast on the Station. All scripts of
announcements will continue to be reviewed by the Licensee or its staff,
prior to broadcast, for compliance with the Underwriting Laws.
5. Education of Prospective Underwriters. Licensee will also implement and
maintain a plan to educate prospective underwriters about appropriate
underwriting content and how the Licensee incorporates such underwriting
content in the messages that it prepares for underwriter approval and
eventual broadcast. To that end, the Licensee will summarize the
Underwriting Laws for each client before it accepts any contract with the
prospective underwriter to air underwriting messages over the Station and
prepares the underwriting message for the underwriter's review. The
Licensee will not broadcast any announcement that does not comply with the
Underwriting Laws.
6. Contractual Agreements. Licensee will ensure that all contractual
agreements with respect to Programming Personnel include a contractual
clause relating to compliance with the Sponsorship Identification Laws.
7. Compliance Officer. Within forty-five (45) days of the Effective Date,
the Licensee shall designate a Compliance Officer, whose responsibility
shall be to seek to ensure the Licensee's compliance with the Compliance
Plan and with the Underwriting and Sponsorship Identification Laws through
the following duties: (a) the implementation, effectuation, and
supervision of the training program with regard to the Underwriting and
Sponsorship Identification Laws for all Licensee employees; (b) being
accessible by telephone and/or e-mail to any Licensee employee who seeks
advice on compliance with the Compliance Plan and the Underwriting
Sponsorship Identification Laws or who wishes to report potential
violations of such policies and laws; (c) the development and
implementation of procedures designed to ensure Licensee's continuing
compliance with the Compliance Plan and the Underwriting and Sponsorship
Identification Laws; (d) monitoring the Licensee's compliance with the
Compliance Plan and the Underwriting and Sponsorship Identification Laws;
(e) reporting on a quarterly basis to the Licensee President regarding
compliance of Licensee Stations and employees with the Compliance Plan and
the Underwriting and Sponsorship Identification Laws; and (f) such other
activities as the Compliance Officer deems necessary or appropriate to
carry out his or her duties.
8. Hotline. The Compliance Officer shall maintain a hotline for employees
to call the Compliance Officer to obtain advice on compliance with the
Compliance Plan and report violations of the Compliance Plan.
9. FCC Enforcement Actions. If as a result of a possible violation of the
Sponsorship Identification Laws at a Licensee Station occurring after the
effective date of the Consent Decree, the Licensee receives a Notice of
Apparent Liability or similar Bureau document proposing a forfeiture, a
Bureau document contemplating license non-renewal or revocation, or a
Forfeiture Order, the following steps will be taken:
A. Each employee accused of violating the Sponsorship Identification Laws
will be suspended and an investigation will immediately be undertaken.
B. Each such employee will be required to undergo remedial training on the
Compliance Plan and the Sponsorship Identification Laws and satisfy the
Compliance Officer and Licensee Station management that he or she
understands such regulations and policies before resuming his or her
duties.
C. If a Notice of Apparent Liability, Forfeiture Order or similar document
assessing a forfeiture, or a document denying a renewal application and/or
revoking a license issued by the FCC, is finally adjudicated and the
Licensee is finally found to have violated the Sponsorship Identification
Laws that results in such action by the Commission, the employee(s)
materially involved in the violation or violations that are the subject of
such Commission or Bureau action will be subject to further disciplinary
action, up to and including termination.
See 47 U.S.C. S:S: 317, 399b, 508.
See 47 C.F.R. S:S: 73.503(d), 73.1212.
See 47 U.S.C. S: 154(i).
See 47 C.F.R. S:S: 0.111, 0.311.
See 47 U.S.C. S:S: 317, 399b, 508.
See 47 C.F.R. S:S: 73.503(d), 73.1212.
See Letter from Kenneth M. Scheibel, Jr., Assistant Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, to Tri-State Public Communications, Inc., dated February 23,
2009; Letter from Kenneth M. Scheibel, Jr., Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, to Tri-State Public Communications, Inc., dated
October 22, 2009 ("Letters of Inquiry").
See supra note 3.
See Letter from Complainant to Hillary S. DeNigro, Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, filed December 23, 2008 ("Complaint").
See id. at 2.
See id. at Attachment.
See supra note 3.
See Letter from Brendan Holland, Attorney for Tri-State Public
Communications, Inc., to Marlene H. Dortch, Secretary, Federal
Communications Commission, filed March 25, 2009; Letter from Brendan
Holland, Attorney for Tri-State Public Communications, Inc., to Marlene H.
Dortch, Secretary, Federal Communications Commission, filed December 4,
2009.
See 47 U.S.C. S: 399b(a).
See 47 U.S.C. S: 399b(b)(2).
See Commission Policy Concerning the Noncommercial Nature of Educational
Broadcasting Stations, Public Notice (1986), republished, 7 FCC Rcd 827
(1992).
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).
See id.
See 47 U.S.C. S: 317(a)(1); 47 C.F.R. S: 73.1212(a).
See, e.g., Commission Reminds Broadcast Licensees, Cable Operators and
Others of Requirements Applicable to Video News Releases and Seeks Comment
on the Use of Video News Releases by Broadcast Licensees and Cable
Operators, Public Notice, 20 FCC Rcd 8593-94 (2005).
See id.
See 47 C.F.R. S: 1.16.
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