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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-IH-0407
In the Matter of
) NAL/Acct. No.
NEW BEGINNING WORLD OUTREACH, INC. 201132080009
)
Licensee of Noncommercial Educational FRN No. 0016948523
Station WNBV(FM), Grundy, Virginia )
Facility ID No. 173198
)
)
ORDER
Adopted: April 14, 2011 Released: April 15, 2011
By the Acting Chief, Investigations and Hearings Division, Enforcement
Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau (the "Bureau") and New Beginning World
Outreach, Inc. (the "Licensee"). The Consent Decree terminates an
investigation by the Bureau against the Licensee for possible
violations of section 399B of the Communications Act of 1934, as
amended, and section 73.503(d) of the Commission's Rules regarding the
broadcast of underwriting announcements over noncommercial educational
Station WNBV(FM), Grundy, Virginia.
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 complaints against 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 by first class certified mail, return receipt requested,
to New Beginning World Outreach, Inc., P.O. Box 100, Bishop, Virginia
24604.
FEDERAL COMMUNICATIONS COMMISSION
Theresa Z. Cavanaugh
Acting Chief
Investigations and Hearings Division
Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-09-IH-0407
In the Matter of )
NAL/Acct. No.
NEW BEGINNING WORLD OUTREACH, INC. ) 201132080009
Licensee of Noncommercial Educational ) FRN No. 0016948523
Station WNBV(FM), Grundy, Virginia
) Facility ID No. 173198
)
)
CONSENT DECREE
1. The Enforcement Bureau (the "Bureau") and New Beginning World
Outreach, 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
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 of
underwriting announcements over noncommercial educational station
WNBV(FM), Grundy, Virginia (the "Station").
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. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Complaints" means the third party complaints received by or in the
possession of the Bureau, forming the basis for the Bureau's May 27,
2009, October 21, 2009, and July 20, 2010, Letters of Inquiry,
regarding whether the Licensee violated the Commission's Underwriting
Laws in connection with its operation of the Station from March 19,
2009, to May 13, 2010.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 9.
f. "Effective Date" means the date on which the Commission releases the
Adopting Order.
g. "Investigation" means the investigation concerning the Complaints and
commenced by the Bureau's Letters of Inquiry regarding whether the
Licensee violated the Commission's Underwriting Laws in connection
with its operation of the Station from March 19, 2009, to May 13,
2010.
h. "Licensee" means New Beginning World Outreach, Inc. and its
predecessors-in-interest and successors-in-interest.
i. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
j. "Parties" means the Licensee and the Bureau, and each is a "Party."
k. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
l. "Stations" means noncommercial educational Station WNBV(FM), Grundy,
Virginia (Facility ID No. 173198).
m. "Underwriting Laws" means 47 U.S.C. S: 399b and 47 C.F.R. S:
73.503(d).
II. BACKGROUND
3. 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.
4. On April 1, 2009, the Commission received a complaint alleging that
the Licensee was "selling fully produced commercials for just one
dollar per announcement." The complaint also provided a recording of
material broadcast by the Station. Based on these materials, it
appeared that the Licensee had aired various prohibited commercial
announcements. Therefore, on May 27, 2009, and October 21, 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 allegations that the Licensee had
aired announcements in violation of the Underwriting Laws. The
Licensee responded on July 15, 2009, July 30, 2009, and January 5,
2010. Subsequently, on May 27, 2010, the Commission received a further
complaint and accompanying recording alleging that the Licensee had
aired additional "full commercial announcements with calls to action"
and "continue[d] to solicit donations." Thus, the Bureau inquired of
the Licensee regarding this second complaint on July 20, 2010, and the
Licensee responded on August 16, 2010. The announcements, which were
referenced in the Complaints and were broadcast over the Station, may
have violated the Underwriting Laws because they contain language that
appears 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 Complaints. In consideration for the
termination of the Investigation and dismissal of the Complaints, 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.
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 Rules, as well as Commission's
Orders. The Compliance Plan shall include, at a minimum, the following
components:
a. Compliance Officer. Within thirty (30) days of the Effective Date,
Licensee will designate a senior corporate manager ("Compliance Officer")
who is responsible for administering the Compliance Plan.
b. Review Procedure. Within thirty (30) days of the Effective date,
Licensee will implement 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.
c. Training. Within thirty (30) days of the Effective Date, the Licensee
will train employees on acceptable underwriting content that complies with
the Underwriting Laws. Within thirty (30) 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.
d. Education of 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, beginning on the Effective Date, 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.
e. Termination Date. Unless stated otherwise, the requirements of this
Compliance Plan will expire (3) years after the Effective Date.
10. Compliance Reports. The Licensee shall 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 9.a. of this Consent Decree, 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 and
the Underwriting 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 and the Underwriting 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 Singh at
Anjali.Singh@fcc.gov, and Amelia Brown at Amelia.Brown@fcc.gov.
11. Voluntary Contribution. The Licensee agrees that it will make a
voluntary contribution to the United States Treasury in the amount of
$3,450 in eight (8) installments of $431.25. The first payment will be
made within thirty (30) days of the Effective Date of the Adopting
Order, with subsequent installment payments made every two months
thereafter, by the same date of the Effective Date of the Adopting
Order, until the voluntary contribution amount is fully satisfied. The
payment(s) must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment(s) must
include the NAL/Account Number and FRN Number referenced in the
caption to the Adopting Order. Payment(s) by check or money order may
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000. Payment(s) 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(s) 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(s) are made to Kenneth.Scheibel@fcc.gov,
Anjali.Singh@fcc.gov, and Amelia.Brown@fcc.gov.
12. 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.
13. Invalidity. In the event that this Consent Decree in its entirety is
rendered invalid by any court of competent jurisdiction, it shall
become null and void and may not be used in any manner in any legal
proceeding.
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 an 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.
________________________________
Theresa Z. Cavanaugh
Acting Chief
Investigations and Hearings Division
Enforcement Bureau
______________________________
Date
________________________________
John C. Dash III
President
New Beginning World Outreach, Inc.
________________________________
Date
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503(d).
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: 399b.
See 47 C.F.R. S: 73.503(d).
See Letter from Complainant to the Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, received April 1,
2009 ("Complaint I"); Letter from Complainant to the Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission,
received May 27, 2010 ("Complaint II").
See Letter from Kenneth M. Scheibel, Jr., Assistant Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission, to New Beginning World Outreach, Inc., dated May 27, 2009
("LOI I"); Letter from Kenneth M. Scheibel, Jr., Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, to New Beginning World Outreach, Inc., dated
October 21, 2009 ("LOI II"); Letter from Anjali K. Singh, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, to New Beginning World Outreach, Inc., dated
July 20, 2010 ("LOI III").
See supra note 3.
See supra note 4.
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.) ("Xavier"), recons. granted, Memorandum Opinion and
Order, 5 FCC Rcd 4920 (1990).
See Complaint I, supra note 3.
See id. at Attachment.
See LOI I & LOI II, supra note 4.
See Letter from John C. Dash III, New Beginning World Outreach, Inc., to
Federal Communications Commission, filed July 15, 2009; Letter from John
C. Dash III, New Beginning World Outreach, Inc., to Federal Communications
Commission, filed July 30, 2009; Letter from John C. Dash III, New
Beginning World Outreach, Inc., to Federal Communications Commission,
filed January 5, 2010.
See Complaint II, supra note 3.
See LOI III, supra note 4; Letter from John C. Dash III, New Beginning
World Outreach, Inc. to Federal Communications Commission, filed August
16, 2010.
See Xavier, supra note 11.
See 47 C.F.R. S: 1.16.
Federal Communications Commission DA 11-410
2
Federal Communications Commission DA 11-410