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Sonshine Family Television, Inc.Licensee of Station WBPH-TV, Bethlehem, Pennsylvania

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Released: December 7, 2009

Federal Communications Commission

FCC 09-108

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

SONSHINE FAMILY TELEVISION, INC.

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File No. EB-06-IH-3489
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NAL/Acct. No. 200832080001
Licensee of Station WBPH-TV
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Facility ID No. 60850
Bethlehem, Pennsylvania
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FRN: 0006620066

FORFEITURE ORDER

Adopted: December 4, 2009

Released: December 7, 2009

By the Commission:

I.

INTRODUCTION

1.
In this Forfeiture Order, issued pursuant to Section 503(b) of the Communications Act of
1934, as amended (the “Act”),1 we find that Sonshine Family Television, Inc. (“Sonshine”), licensee of
Station WBPH-TV, Bethlehem, Pennsylvania, willfully and repeatedly violated Section 317(a)(1) of the
Act2 and Section 73.1212(a) of the Commission’s rules3 by failing to air required sponsorship
identification announcements. Based on a review of the facts and circumstances, we find Sonshine liable
for a forfeiture in the amount of $32,000.

II.

BACKGROUND

2.
This case arises from several thousand complaints filed with the Commission in January
2005, alleging payola violations involving Armstrong Williams (“Williams”).4 The complaints, citing
national news reports, contended that Williams was paid by the Department of Education (“DoEd”) to
promote the No Child Left Behind Act (“NCLB”) in broadcast programming that he produced or in
which he appeared without disclosing that fact to viewers or to the stations involved.5 Many of the
complaints identified numerous broadcast stations reported to have aired such NCLB-related
programming, which included the show “The Right Side with Armstrong Williams” (“RSAW”).6
3.
On February 14, 2005, the Enforcement Bureau (“Bureau”) issued letters of inquiry to
Armstrong Williams’ media company, Graham Williams Group (“GWG”), and to public-relations firm


1 See 47 U.S.C. § 503(b).
2 47 U.S.C. § 317(a)(1).
3 47 C.F.R. § 73.1212(a).
4 See Sonshine Family Television, Inc., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 18686, 18689
(2007) (“NAL”).
5 See id. at 18689-90.
6 See id. at 18690.

Federal Communications Commission

FCC 09-108

Ketchum, Inc. (“Ketchum”).7 Ketchum was the prime contractor with DoEd in connection with that
department’s campaign to promote NCLB and GWG was a subcontractor of Ketchum’s in that endeavor.8
GWG and Ketchum responded to the LOIs.9
4.
The Bureau reviewed this evidence and identified those episodes in which discussions of
NCLB topics took place during the programs, but no sponsorship disclosures appeared to have been
made.10 The Bureau thereafter issued further letters of inquiry to Sonshine, which the Bureau identified
as potentially having aired the programs.11
5.
In its response, Sonshine acknowledged that Station WBPH-TV aired five different
episodes of RSAW entitled “What is Faith,” “Year End Review,” “Young Americans in Government,”12
“National Security,” and “On Point with Rod Paige,” on a total of ten occasions during the period January
4, 2004, through July 5, 2004.13 During these episodes Williams discussed the NCLB program.
Although Sonshine’s agreement with Williams “call[ed] for payment of a nominal fee of $100 to [it] for
each broadcast,” Sonshine acknowledged that “in all likelihood” its station aired them without including
any sponsorship identification, because it believed no identification was necessary.14 Sonshine asserted
that any lack of sponsorship identifications was harmless and did not violate Commission rules because
the consideration exchanged was nominal, it had no basis to conclude that sponsorship identifications
were required, and the sponsor of each broadcast was clear despite lack of such identifications.15
6.
On October 18, 2007, the Commission released a Notice of Apparent Liability for
Forfeiture (“NAL”).16 In the NAL, we found that Sonshine had failed to air required sponsorship
identification announcements, in apparent violation of the sponsorship identification laws and rules, 47
U.S.C. § 317(a)(1) and 47 C.F.R. § 73.1212.17 Specifically, we found that Sonshine aired five episodes of


7 See Letters from William Freedman, Deputy Chief, Investigations & Hearings Division, Enforcement Bureau, to
Williams and Ketchum, dated February 14, 2005.
8 See NAL at 18690.
9 See Letter from GWG to Kenneth M. Scheibel, Jr., Attorney, Investigations & Hearings Division, Enforcement
Bureau, dated April 6, 2005, and Letter from Ketchum to William D. Freedman, Deputy Chief, Investigations &
Hearings Division, Enforcement Bureau, dated April 13, 2005.
10 See NAL at 18690.
11 See Letters from Benigno E. Bartolome, Jr., Deputy Chief, Investigations & Hearings Division, Enforcement
Bureau, to Sonshine, dated November 7, 2006, and January 31, 2007.
12 As noted in the NAL, this episode was referred to in our LOI to Sonshine as entitled “Young Americans in
Government,” but that title actually describes only the second segment of the episode. The first segment was
denominated “Profile of a Candidate.” The title appearing at the beginning of the whole episode - “Profile of
Candidate/Americans” - appears to be a composite of both segments’ titles. See NAL at 18690 n.19.
13 See id. at 18690 n.20. Specifically, Sonshine acknowledges that it aired the following episodes of RSAW over
Station WBPH-TV: “What is Faith” aired on January 6, March 4, March 8, and April 30, 2004; “Year End Review”
aired on January 4, 2004; “Young Americans in Government” aired on January 5, 2004; “National Security” aired
on April 23, 2004; and “On Point with Rod Paige” aired on March 19, April 12 and July 5, 2004. See Letters from
Sonshine to Benigno E. Bartolome, Jr., Deputy Chief, Investigations & Hearings Division, Enforcement Bureau,
dated December 22, 2006, March 2, 2007 and March 23, 2007. (The last response will hereinafter be the “March
23rd Response.
”).
14 See March 23rd Response at 2.
15 See id. at 2-5.
16 See NAL at 18686.
17 See id.
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Federal Communications Commission

FCC 09-108

the program “The Right Side with Armstrong Williams” ten times between January 4, 2004 and July 5,
2004, in consideration for $100 per broadcast, without airing required sponsorship identification
announcements.18 Accordingly, we proposed a forfeiture of $40,000 against Sonshine.19
7.
On November 19, 2007, Sonshine responded to the NAL, requesting the forfeiture be
cancelled or reduced. 20 Sonshine maintains that its violation was minor, and that it had made a good faith
effort to comply with the Commission’s rules.21 It also asserts that it is unable to pay the proposed
forfeiture.22 In support of its claimed inability to pay, Sonshine submitted audited financial statements for
the three most recent tax years and additional information concerning its expenses.23 Finally, Sonshine
argues that it has a history of complying with the Commission’s rules.24

III.

DISCUSSION

8.
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.25 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.26 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 Act27 and the
Commission has so interpreted the term in the Section 503(b) context.28 The Commission may also
assess a forfeiture for violations that are merely repeated, and not willful.29 “Repeated” means that the act
was committed or omitted more than once, or lasts more than one day.30 To impose such a forfeiture
penalty, the Commission must issue a notice of apparent liability and the person against whom the notice
has been issued must have an opportunity to show, in writing, why no such forfeiture penalty should be
imposed.31 The Commission will then issue a forfeiture if it finds by a preponderance of the evidence that
the person has violated the Act or a Commission rule.32


18 See id.
19 See id.
20 See Response to Notice of Apparent Liability, filed November 19, 2007 (“NAL Response”).
21 See id. at 2-3.
22 See id. at 3-5.
23 See id. at 6-37. Sonshine requested confidential treatment for these materials.
24 See id. at 3.
25 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also 47 U.S.C. § 503(b)(1)(D).
26 47 U.S.C. § 312(f)(1).
27 H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
28 See, e.g., Application for Review of Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991) (“Southern California Broadcasting Co.”).
29 See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of Apparent Liability for Monetary Forfeiture,
16 FCC Rcd 1359, 1362, ¶ 10 (2001) (“Callais Cablevision”) (issuing a Notice of Apparent Liability for, inter alia,
a cable television operator’s repeated signal leakage).
30 Southern California Broadcasting Co., 6 FCC Rcd at 4388, ¶ 5; Callais Cablevision, Inc., 16 FCC Rcd at 1362,
¶ 9.
31 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
32 See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002) (forfeiture paid).
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Federal Communications Commission

FCC 09-108

9.
In its response to the NAL, Sonshine does not deny that it violated the Commission’s
rules, and we find by a preponderance of the evidence that Sonshine willfully and repeatedly engaged in
the violations described in the NAL. More specifically, we find that Sonshine willfully and repeatedly
violated Section 317(a)(1) of the Act and Section 73.1212(a) of the Commission’s rules by failing to air
required sponsorship identification announcements.
10.
We now turn to the proposed forfeiture amount, which in this case was assessed in
accordance with Section 503(b) of the Communications Act,33 Section 1.80 of the Commission’s rules,34
and the Commission’s forfeiture guidelines set forth in its Forfeiture Policy Statement.35 In assessing
forfeitures, Section 503(b) of the Act requires that we take into account 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 other matters as justice may require.36 As discussed further below, we have
examined Sonshine’s response to the NAL pursuant to the aforementioned statutory factors, our rules, and
the Forfeiture Policy Statement, and find no basis for cancellation of the forfeiture but reduce the
forfeiture amount from $40,000 to $32,000.
11.
First, Sonshine asserts that its violation was minor because Williams hosted and produced
the program, and these facts would have informed the public about who sought to persuade them of
messages contained in the program, implying that such information, in and of itself, constituted an
adequate identification under the circumstances of this case.37 We rejected this argument in the NAL,
however, and Sonshine advances no new reason for us to revisit that conclusion here.38
12.
Sonshine further asserts that the NAL “did not…address how an additional announcement
would have accomplished the purpose of the sponsorship identification rules, i.e., to inform the public
concerning by whom they are being persuaded. . . . “39 Sonshine claims that the NAL also did not address
“the apparent inconsistent standard toward sponsorship identification requirements for public affairs
programs on the major television networks and the Enforcement Bureau’s standard for public affairs
programs acquired by independent television stations.”40 Sonshine appears to suggest that the
Commission is unfairly imposing sponsorship identification requirements on it that would not apply to
television networks. These arguments lack merit. First, the NAL explained at length why the
Commission’s rules insist on proper sponsorship identification to prevent public confusion or
misunderstanding.41 Second, the instant case is distinguishable from situations where a station may have,
in fact, purchased programming under a barter-type arrangement. In barter- type arrangements, which
can include network affiliation agreements,42 the program supplier provides the station its program, which


33 See 47 U.S.C. § 503(b).
34 See 47 C.F.R. § 1.80.
35 See The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines
, Report and Order, 12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999)
(“Forfeiture Policy Statement”).
36 See 47 U.S.C. § 503(b)(2)(E).
37 See NAL Response at 2
38 See NAL at 18694.
39 See NAL Response at 2 n.2 (internal quotation marks omitted) (emphasis in original omitted).
40 See id.
41 NAL, 22 FCC Rcd at 18694 ¶ 16.
42 See Review of the Commission’s Regulations Governing Television Broadcasting, Further Notice of Proposed
Rule Making, 10 FCC Rcd 3524, 3583 n.159 (1995) (citing Revision of Radio Rules and Policies, Report and Order,
(continued....)
4

Federal Communications Commission

FCC 09-108

the station purchases by allowing the program provider to use some or all of the station’s advertising
airtime during the program. Thus, in barter arrangements the broadcaster effectively purchases
programming in exchange for valuable consideration in the form of advertising time, thereby immunizing
the exchange from the sponsorship identification requirement.43 Here, Sonshine accepted money in
exchange for agreeing to air the programs, rather than purchasing them under a barter-type arrangement,
and thereafter failed to make the sponsorship identifications that were required.44 Finally, to the extent
that Sonshine is describing network affiliates as somehow immune from sponsorship identification
disclosure requirements, it has failed to cite any precedent demonstrating that the Commission has
granted such immunity. Accordingly, Sonshine has failed to demonstrate that the Commission has treated
it unfairly by imposing a sponsorship identification requirement.
13.
Sonshine also asserts that its good faith efforts to comply with the Commission’s rules
merit a cancellation or reduction of the forfeiture amount.45 It points to its practices and policies
concerning compliance with sponsorship identification rules, and contends that the Commission should
regard its lack of compliance here as a “poorly informed, but good faith, misunderstanding of the specific
requirements of the sponsorship identification rules.”46 We have previously reduced a forfeiture when the
licensee has voluntarily disclosed its conduct or taken corrective measures to remedy its conduct before
an investigation.47 The record evidence does not suggest, however, that Sonshine took either of these
steps. Accordingly, we decline to cancel or reduce the forfeiture amount on this basis.
14.
Sonshine also claims that it is unable to pay the assessed forfeiture, and in support
submits its audited financial statements for each of the last three years.48 The Commission generally
considers gross revenue as the best indication of a licensee’s inability to pay as demonstrated by audited
financial statements.49 If gross revenues are substantial, then the mere fact that the business is operating


(...continued from previous page)
7 FCC Rcd 2755, 2784 n.113 (1992)) (describing network affiliation agreements as a variant of time brokerage
whereby the local affiliate sells time to the network in exchange for desirable programming, station compensation,
and the opportunity to place local commercials within popular national programs).
43 See Complaint of National Association for Better Broadcasting, Memorandum Opinion and Order, 4 FCC Rcd
4988 (1989), affirmed sub nom., National Association for Better Broadcasting v. Federal Communications
Commission
, 902 F.2d 1009 (D.C. Cir. 1990) (unpublished) (holding that sponsorship identification was not
required when station purchased syndicated program with advertising time of more than nominal value, and that
sponsorship identification would be required had station received programming for free or for nominal payment).
44 47 U.S.C. § 317(a)(1) (requiring sponsorship identification when a station accepts money for broadcasting a
program); 47 C.F.R. § 73.1212(a).
45 See NAL Response at 2-3.
46 See id. at 3.
47 See Note to Section 1.80(b)(4) of the rules, 47 C.F.R. § 1.80(b)(4) (listing “Good faith or voluntary disclosure” as
a basis for adjusting forfeitures downward); Radio One Licenses, Inc., Memorandum Opinion and Order, 18 FCC
Rcd 15964, 15965 (2003), recons. denied, Memorandum Opinion and Order, 18 FCC Rcd 25481 (2003) (reducing
$5,200 forfeiture assessed for Emergency Alert System rule violations to $4,000 due to the licensee’s corrective
measures prior to an investigation).
48 In its NAL Response, Sonshine requested confidential treatment of certain business information contained in
exhibits to its submission. See NAL Response at 3. This Forfeiture Order discusses information that does not
pertain to that request, and it does not list specific revenues or expenses. Accordingly, we need not rule on
Sonshine’s request. Until we do so rule, we will honor Sonshine’s request for confidential treatment of these
materials.
49 See Forfeiture Policy Statement, 12 FCC Rcd 17087, 17107 (1999) (internal citations omitted).
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FCC 09-108

at a loss does not necessarily preclude forfeiture liability based on inability to pay.50 Based on our review
of Sonshine’s financial statements and the other materials submitted by the licensee, we find no reason to
reduce the forfeiture based on Sonshine’s assertion that it is unable to pay. The forfeiture is an
appropriate percentage of Sonshine’s total operating revenues in recent years and is consistent with
Commission precedent.51
15.
Finally, Sonshine asks that we consider cancelling or reducing the forfeiture amount
based on its history of overall compliance with the Commission’s rules.52 We have reviewed our records
and note no other violations by Sonshine. Under similar circumstances, we have reduced proposed
forfeitures, and we find that doing so in this case is appropriate.53 Consequently, we reduce Sonshine’s
forfeiture amount from $40,000 to $32,000.

IV.

ORDERING CLAUSES

16.
Accordingly,

IT IS ORDERED

that, pursuant to Section 503(b) of the Act54 and
Sections 0.111, 0.311, and 1.80(f)(4) of the Commission's rules,55 Sonshine Family Television, Inc.,

IS
LIABLE FOR A MONETARY FORFEITURE

in the amount of $32,000 for its willful and repeated
violation of Section 317(a)(1) of the Act56 and Section 73.1212(a) of the Commission’s rules.57
17.
Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
rules within 30 days of the release of this Forfeiture Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for collection pursuant to Section 504(a)
of the Act.58 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


50 See id. at 17107.
51 See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02 percent of the violator’s gross revenues);
Hoosier Broadcasting Corporation, Memorandum Opinion and Order, 15 FCC Rcd 8640, 8641 (Enf. Bur. 2002)
(forfeiture not deemed excessive where it represented approximately 7.6 percent of the violator’s gross revenues);
Afton Communications Corporation, Memorandum Opinion and Order, 7 FCC Rcd 6741, 6742 (CCB 1992)
(subsequent history omitted) (forfeiture not deemed excessive where it represented approximately 3.9% of the
violator’s operating revenues). In this case, the forfeiture represents a smaller percentage than those that issued in
Hoosier Broadcasting Corp., and only a nominally higher percentage compared to the forfeitures issued in PJB
Communications of Virginia, Inc.
, and Afton Communications Corporation. We note, in particular, that although we
used an average revenue including Sonshine’s 2004 revenues to calculate the percentage, the forfeiture is
particularly reasonable in light of Sonshine’s greater revenues in 2005 and 2006, of which it forms an even lower
percentage.
52 See NAL Response at 3.
53 See, e.g., SM Radio, Inc., Order on Review, 23 FCC Rcd 2429, 2430-2431 (2008) (affirming forfeiture reduction
from $7,000 to $5,600 due to licensee’s history of compliance); Radio X Broadcasting Corporation, Memorandum
Opinion and Order, 21 FCC Rcd 12209 (2006) (affirming forfeiture reduction from $20,000 to $16,000 due to
licensee’s history of compliance.).
54 See 47 U.S.C. § 503(b).
55 See 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
56 See 47 U.S.C. § 317(a)(1).
57 See 47 C.F.R. § 73.1212(a).
58 See 47 U.S.C. § 504(a).
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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. Sonshine Family
Television, Inc. will also send electronic notification on the date said payment is made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, and Anjali.Singh@fcc.gov.
18.

IT IS FURTHER ORDERED

that a copy of this Forfeiture Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Sonshine Family Television, Inc., 813 N.
Fenwick Street, Allentown, Pennsylvania 18109, and to its counsel, J. Geoffrey Bentley, Esq., 2700
Copper Creek Road, Oak Hill, Virginia 20171.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
7

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