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Before the
Federal Communications Commission
Washington, D.C. 20554
)
EB-09-IH-0500
In the Matter of )
Facility ID No. 89401
WAY-FM MEDIA GROUP, INC. )
NAL Account No.
Licensee of Noncommercial Educational ) 201032080014
Station KXWA(FM), Loveland, Colorado
) FRN No. 0004995288
)
CONSENT DECREE
1. The Enforcement Bureau ("Bureau") and WAY-FM Media Group, Inc.
("Licensee"), by their authorized representatives, hereby enter into this
Consent Decree for the purpose of terminating the Enforcement Bureau's
above-referred investigation into whether the Licensee violated Section
399B of the Communications Act of 1934, as amended, and Section 73.503(d)
of the Commission's Rules, in connection with the broadcast by the
Licensee of underwriting acknowledgments over its noncommercial
educational Station KXWA(FM), Loveland, Colorado.
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 that certain third party complaint received by or in
the possession of the Bureau, forming the basis for the Bureau's May
13, 2008 Letter of Inquiry, regarding whether the Licensee violated
the Commission's Underwriting Laws in connection with its operation of
the Station on April 14, 2009.
f. "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
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 May 13, 2008 Letter of Inquiry regarding
whether the Licensee violated the Commission's Underwriting Laws in
connection with its operation of the Station on April 14, 2009.
i. "Licensee" means the WAY-FM Media Group, 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. "Station" means noncommercial educational Station KXWA(FM), Loveland
Colorado (Facility ID No. 89401).
m. "Underwriting Laws" mean Section 399B of the Communications Act of
1934, 47 U.S.C. S: 399b, and Section 73.503(d) of the Commission's
Rules, 47 C.F.R. S: 73.503(d).
II. BACKGROUND
3. Pursuant to Section 399b(a) of the Act and Section 73.503(d) of the
Rules, advertisements are defined 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.
4. On May 13, 2009, the Bureau issued a letter of inquiry ("LOI") to the
Licensee, which directed the Licensee, among other things, to submit a
sworn written statement in response to questions relating to
allegations that the Licensee had aired announcements in violation of
the Underwriting Laws. The Licensee responded on June 12, 2009. The
announcements 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.
III. TERMS OF AGREEMENT
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
following components:
a. Licensee will use a multi-level review procedure for underwriting
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.
b. Licensee will train employees on acceptable underwriting content that
complies with the Underwriting Laws. Within thirty days of being hired by
the Licensee, any new Station employee will be trained as to acceptable
underwriting content that complies with the Underwriting Laws. In
addition, the Licensee's Station employees will receive refresher
training, on an annual basis, regarding existing guidelines and, where
applicable, pertinent changes to the Underwriting Laws.
c. 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.
10. Compliance Reports. Licensee will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after the
Effective Date, twenty-four months after the Effective Date, and upon
expiration of this Consent Decree, three years after the Effective Date.
Each compliance report shall include a compliance certificate from an
officer, as an agent of the Licensee, stating that the officer has
personal knowledge that the Licensee has established and maintained on an
ongoing basis operating procedures intended to ensure compliance with this
Consent Decree, together with an accompanying statement explaining the
basis for the officer's compliance certification. Each compliance report
will describe any significant difficulties the Licensee has encountered
during the reporting period in ensuring compliance with the Underwriting
Laws, what steps it has taken to resolve those difficulties, and the
success of those steps in doing so. 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.
11. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire three (3) years after the Effective Date.
12. Voluntary Contribution. Licensee agrees that it will make a voluntary
contribution to the United States Treasury in the amount of one thousand
dollars ($1,000). The payment will be made within five (5) calendar days
after the Effective Date of the Adopting Order. 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, Anjali.Singh@fcc.gov, and
Anita.Patankar-Stoll@fcc.gov.
13. 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.
14. 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.
15. Successors and Assigns. The Licensee agrees that the provisions of
this Consent Decree shall be binding on its successors, assigns, and
transferees.
16. 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.
17. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
18. 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.
19. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
20. 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
________________________________
Bob Augsburg
President
WAY-FM Media Group, Inc.
________________________________
Date
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503(d).
See Letter from Kenneth M. Scheibel, Jr., Assistant Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, to WAY-FM Media Group, Inc. ("LOI").
See id.
See 47 U.S.C. S: 399b.
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) ("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 Letter from A. Wray Fitch, III, attorney for WAY-FM Media Group, Inc.,
to Marlene H. Dortch, Secretary, Federal Communications Commission, dated
June 12, 2009.
See Xavier, supra note 10.
Federal Communications Commission DA 10-581
1
2
Federal Communications Commission _____ DA 10-581