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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
SOUTHERN RHODE ISLAND ) File No. 99070036
PUBLIC RADIO BROADCASTING, INC. )
) NAL/Acct. No.
x32080016
Licensee, Noncommercial Educational Station WBLQ(FM) )
Westerly, Rhode Island )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 5, 2000 Released: May
9, 2000
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Southern Rhode Island Public Radio
Broadcasting, Inc. (``Southern Rhode Island''), licensee of
noncommercial educational station WBLQ(FM), has apparently
violated Section 399B of the Communications Act of 1934, as
amended (``the Act''), and Section 73.503 of the Commission's
rules,1 by broadcasting impermissible donor and underwriting
announcements. We conclude that Southern Rhode Island is
apparently liable for a forfeiture in the amount of one thousand
dollars ($1,000).
II. Background
2. In this case, we received information suggesting that
various announcements broadcast by Station WBLQ(FM) appear to
promote the products, services or businesses of for-profit
enterprises. In response to this information, we issued a letter
of inquiry to Southern Rhode Island dated September 21, 1999.
3. In its October 21, 1999, reply, Southern Rhode Island
concedes that the sponsored underwriting acknowledgements
described in our letter of inquiry were broadcast. Southern
Rhode Island argues, however, that because the cited
announcements contained factually accurate information, they are
not promotional in nature, and were broadcast in accordance with
the applicable Commission guidelines and the ``good faith''
discretion afforded noncommercial broadcasters. The licensee
also believes that the announcement made for King's Cyclery is
permissible because its text does not compare, call to action, or
mention price.2 Finally, Southern Rhode Island contends that
since the content of its underwriting announcements is similar to
that of other local noncommercial broadcasters, it should not be
punished even if its broadcasts are found to be in violation of
the pertinent Commission rules.
III. Discussion
4. Section 399B of the Act, as implemented by Section
73.503 of the Commission's rules, prohibits public broadcast
stations from broadcasting advertisements. 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. 47 U.S.C. § 399B. Although
contributors of funds to a noncommercial station may receive on-
air acknowledgements, the Commission has unequivocally stated
that such acknowledgements may be made for identification
purposes only and should not promote the contributor's products,
services, or business. Specifically, such announcements may not
contain comparative or qualitative descriptions, price
information, calls to action, or inducements to buy, sell, rent
or lease. See Public Notice, "In the Matter of the Commission
Policy Concerning the Noncommercial Nature of Educational
Broadcasting Stations" (1986), republished, 7 FCC Rcd 827 (1992).
The Commission has ``recognize[d] that it may be difficult to
distinguish at times between announcements that promote and those
that identify. We only expect our public broadcast licensees to
exercise their reasonable, good faith judgments in this regard.''
Xavier University, 5 FCC Rcd 4920 (1990) (quoting Commission
Policy Concerning the Noncommercial Nature of Educational
Broadcast Stations, 90 FCC 2d 895 (1982)). As the Commission
made clear in Xavier, announcements will not be deemed to be
impermissible where the ``language at issue . . . is not clearly
promotional as opposed to identifying and . . . the licensee
exercised reasonable, good faith judgment regarding the language.
. . .''
5. We have reviewed the record in light of the ``clearly
promotional/good faith'' standard set forth by the Commission in
Xavier. We find that the station's broadcast of the
announcements identified in the Attachment to this Notice of
Apparent Liability exceeded what is permissible under Xavier, and
that Southern Rhode Island broadcast impermissible advertisements
for the benefit of for-profit entities, in apparent violation of
Section 399B of the Act, and Section 73.503 of the Commission's
rules. In this regard, the identified announcements contain
clearly promotional references that provide prohibited price
information, product or service comparisons, and qualitative
descriptions, and exceed the ``good faith'' discretion afforded
under Xavier.
6. Southern Rhode Island argues that it employed ``good
faith'' in formulating the subject announcements based on its
understanding that announcements that convey factually accurate
information are permissible, and that references to discounts are
acceptable, so long as they do not specifically mention the
price. Contrary to the licensee's assertion, the use of
comparative, qualitative descriptive language is not rendered
non-promotional and permissible merely because the message
conveyed is factually accurate. Moreover, prohibited price
information includes not only specific price information, but
also sponsor discounts, and products or services offered by the
sponsor at no cost or ``free.'' See Xavier; Public Notice.3
Viewed in their full context, the attached segments clearly go
well beyond ``identification'' as permitted in Xavier. They
contain specific product descriptions, suggestions of price
discounts, calls to action and clear inducements encouraging
listeners to buy or try particular products. Thus, for example,
in the station's live remote broadcast from Urso's Auto Village,
the underwriter's inducements, such as ``enormous discounts'' on
merchandise, are recited in connection with the event. Such
inducements appear to promote impermissibly the for-profit
entity's sales event. That other local noncommercial stations
have broadcast announcements similar to those in question in no
way excuses or mitigates the apparent instant violations.
7. We are also concerned that the licensee has not taken
corrective measures regarding its defective underwriting
announcements. Although Southern Rhode Island asserts that it is
not fully versed regarding the Commission's noncommercial rules,
it is nevertheless responsible for complying with them. The
Commission has consistently held that ignorance of the pertinent
statute and rules will not excuse a licensee from its obligation
to operate a station in compliance with the terms of its
authorization and the Commission's rules. Empire Broadcasting
Corp., 25 FCC 2d 68 (1970). Additionally, licensees cannot be
excused from responsibility for the acts of their managers or
employees. Id. Consequently, we find that Southern Rhode Island
has apparently violated Section 399B of the Communications Act
and Section 73.503 of the Commission's rules regarding
permissible donor and underwriting announcements on noncommercial
educational stations, for the reasons set forth above.4 From the
information supplied, it appears that the announcements were made
on behalf of five underwriters identified in the Attachment,
broadcast repeatedly since January, 1999, and were aired in
exchange for monetary or trade remuneration.
8. In assessing this monetary forfeiture, we have taken
into account the nature, circumstances, extent and gravity of the
violations, the degree of culpability, as well as the station's
prior enforcement history. Section 503(b)(2)(D) of the
Communications Act of 1934, as amended, 47 U.S.C. Sec.
503(b)(2)(D). We note that the Forfeiture Policy Statement5
provides for a forfeiture of $2,000 as the base amount for
violation of the enhanced underwriting requirements. In this
case, we believe that a forfeiture of $1,000 is appropriate due
to the prior unblemished enforcement record of the licensee.
IV. Ordering Clauses
9. 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,6
Southern Rhode Island Public Radio Broadcasting, Inc., licensee,
noncommercial educational Station WBLQ(FM), Westerly, Rhode
Island, is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of One Thousand Dollars ($1,000.00) for
willfully and repeatedly violating 47 U.S.C. Section 399b and
Section 73.503 of the Commission's rules.
10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, Southern Rhode Island SHALL PAY to the United States
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
11. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995, or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should note the file number of
this proceeding.
12. The response, if any, must be mailed to the
Commission's Investigations and Hearings Division, Enforcement
Bureau, 445 Twelfth Street, S.W., Room 3 B443, Washington, D.C.
20554, and MUST INCLUDE the file number referenced above.
13. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner 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 petitioner'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.
14. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 Twelfth Street,
S.W., Washington, D.C.7
15. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail -- Return Receipt Requested, to
Southern Rhode Island Public Radio Broadcasting, Inc., 4 Canal
Street, Westerly, Rhode Island 02891.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
ATTACHMENT
The following text was taken from audiotapes of the
announcements broadcast May 28, 1999 and June 25, 1999.
1. King's Cyclery (75 seconds)
[Announcement spoken over musical background.]
Steven: Hi, I am Steven King from ``King's Cyclery'' in
Spindrift Village, Dunn's Corner. The warm weather is here, and
we are ready with the latest in bicycles, gear and accessories.
One of our newest recumbent bicycles is ``Bikee.'' In my
opinion, it's a very relaxing and comfortable bike, in which one
sits on a soft-padded chair with handlebars and peddles in front.
The other new recumbent which WBLQ's own Chris DiPaulo
experienced is ``Vision.''
Steven: Chris, how did you like it?
Chris: Oh, Steve, I loved it. Like ``Bikee,'' it's relaxing and
comfortable. But, as you know, Steve, I could stand to lose a
few pounds. ``Vision'' is perfect for me because it's also good
exercise. You can adjust tension and the handlebars are uniquely
placed right next to where I sit, and the peddles are out in
front.
Steven: Well, there you have it. You can find these recumbent
bikes and all other kinds of bicycles, gear and accessories as
well as a model-train department at ``King's Cyclery'' in the
Spindrift Village in Dunn's Corner. And I am proud to be
supporting local community radio on 88.1 WBLQ.
Chris: Steve, what is your phone number.
Steven: It's funny you should ask, Chris. It's 322-6005.
2. Nigrelli's Jewelry (55 seconds)
For over 50 years, locals have depended on ``Nigrelli's Jewelry''
in downtown Westerly for service, repairs, and sales of jewelry.
``Nigrelli's Jewelry'' provides all kinds of repairs, including
repairing those wrist-bands on watches, and other watch repairs.
They have watch batteries, they also do all kinds of jewelry
repairs including ring repairs, sizing and more. The phone
number at ``Nigrelli's Jewelry'' is 596-4421. That's 596-4421.
``Nigrelli's Jewelry'' reminds you that the birthstone for June
is ``pearl,'' and all pearl items are available at a different
price at ``Nigrelli's Jewelry.'' That's ``Nigrelli's Jewelry,''
27 High Street, in downtown Westerly. Serving the local area for
over 50 years. ``Nigrelli's Jewelry,'' another proud contributor
to local programming on 88.1 WBLQ.
3. Urso's Auto Village (65 seconds)
[The following are prefatory lyrics set to music]:
It's the excitement, it's the freedom, it's the feeling of pride,
when you're ready for adventure, come ride. The open road is
calling, no one knows it like we do. And we've got all the gear
to make it happen for you. `Cause once you've found freedom,
it's a feeling for life . . . it's the excitement, it's the
freedom, it's the feeling of pride, when you're ready for
adventure, come ride.
[The following is the text of the announcement itself]:
Rich Urso and David page are ready for summer. ``Urso's Auto
Village,'' located on Granite Street on Route 1, Westerly, has
sports cars, family vehicles, sport utilities and foreign and
domestic vehicles. There are enormous discounts available. For
more information, you can call 348-0200. Join Chris DiPaulo and
Ken Collins for a live broadcast on Saturday June 26, 1999.
There'll be give-aways and lots of fun. That's ``Urso's Auto
village,'' located on Granite Street on Route 1, Westerly, 348-
0200.
[Closing repeats lyrics and music.]
4. MP's Automotive Electronics (55 seconds)
[Announcement spoken over musical background.]
The summer months are unofficially here. Just picture yourself
driving along Atlantic Avenue on a beautiful summer's night,
sunroof down, talking on your car phone, and cranking out the
tunes in your superb sound system without a care in the world.
Sounds nice, but a common concern for this scenario is - ``can I
afford all of this?''
``MP's of Westerly,'' the car phone store next to ``Auto Zone''
on Granite Street, makes it easy. Craig can help you find a
sound system and fix you up with a sunroof that will fit your
budget. The cell-phones have a fixed monthly rate, in both
Connecticut and Rhode Island, with digital choice and choice
single-rate plans. MP's of Westerly, the car phone store next to
``Auto Zone'' on Granite Street, 348-3071. Another proud
contributor to programming on WBLQ.
5. Villa Trombino Restaurant & Lounge (75 seconds)
[Announcement spoken over musical background.]
What's the matter? Are you afraid you going to lose her? Well,
don't worry anymore. ``The Villa Trombino'' can help. They've
got dinners for two at ``The Villa Trombino.'' That's right,
dinner for two. Sure to save a long-lasting relationship. ``The
Villa Trombino'' has all kinds of dinners for two, like prime-rib
of beef, shrimp frantiable, fresh veal parmesan, chicken
marcella, stuffed lobsters, surf and turf. And everything comes
with potato, vegetable and pasta. They also have premium bottles
of wine, like Cinella's Chardonnay, Ernest and Julio Gallo's
White Zinfandel.
``The Villa Trombino Restaurant.'' Dinners for two. Take your
honey out, you can do it at ``The Villa Trombino.'' ``The Villa
Trombino'' has been serving the local area for over 25 years.
Bennie and Anna Trombino have been cooking up home-style meals,
just like the old country, since the beginning. And the
tradition continues. They have ``early bird'' specials at 4
until 6 p.m., and their bar's open most nights `til 1:00 a.m.
``The Villa Trombino,'' in business for over 25 years, Route 3,
just 2 ½ miles from downtown Westerly. ``The Villa Trombino,''
another proud contributor to local programming on WBLQ.
_________________________
1 47 U.S.C. Sec. 399b and 47 C.F.R. Sec. 73.503.
2 The licensee further argues that because broadcast references
to ``discounts'' offered by underwriters do not contain specific
price information, they should be deemed permissible.
3 On page 4 of the Public Notice, the Commission also stated that
announcements containing an inducement to buy, sell, rent or
lease are not permissible.
4 Compare Xavier, supra, where the Commission did not impose a
sanction for a single prohibited announcement of limited duration
because, among other things, the licensee took prompt corrective
action in response to the Commission's initial inquiry.
5 In the Matter of the Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999).
6 See 47 C.F.R. Secs. 0.111, 0.311 and 1.80.
7 See 47 C.F.R. Sec. 1.1914.