******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Liability of ) Jacor Broadcasting of Colorado, Inc.) Licensee, Station KOA-AM ) Denver, Colorado ) ) For a Forfeiture ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: June 20, 1997 Released: July 2, 1997 By the Commission: 1. The Commission has before it for consideration: (1) a Notice of Apparent Liability, (NAL), 8 FCC Rcd 7892 (MMB 1993), assessing a forfeiture of $10,000 against Jacor Broadcasting of Colorado, Inc., licensee of Station KOA-AM, Denver, Colorado, for violation of Section 317 of the Communications Act of 1934, as amended, and Section 73.1212 of the Commission's Rules; and (2) an Application for Review seeking rescission or reduction of the forfeiture filed by Jacor Broadcasting. Sections 317 and 73.1212 require, in pertinent part, that any material broadcast in exchange for money, service, or other valuable consideration paid to a broadcast station, directly or indirectly, be accompanied by a sponsorship identification or disclosure. This announcement must clearly advise the audience that the time was purchased and by whom. 2. It is undisputed that Station KOA-AM broadcast a total of fifty-one 60-second announcements promoting the commercial services and attractions of Cripple Creek, Colorado. These announcements were all paid for by the Cripple Creek Chamber of Commerce, but the organization was not specifically identified as their sponsor. Citing Section 73.1212(f) of our Rules, Jacor Broadcasting had asserted in response to a staff inquiry that mention of the attractions of Cripple Creek in the announcements constituted "mention of the name of the product [that] constitutes a sponsorship identification" within the context of that provision. The Mass Media Bureau rejected this position, observing that "[a] listener hearing of Cripple Creek's restaurants, lodgings, tours, train rides and other offerings does not think automatically of the Cripple Creek Chamber of Commerce. The two entities--businesses and Chamber of Commerce--are not obviously intertwined in the public mind. They are not 'product' and 'sponsor' as these terms are commonly understood." 8 FCC Rcd at 7892. 3. Jacor Broadcasting questions the wisdom of the Bureau's approach, but it offers no precedent in support of its position. We affirm the original reasoning of the NAL. We affirm, as well, the Bureau's rejection of Jacor Broadcasting's claim of good faith as a mitigating consideration. 4. In its response to the staff's original inquiry, Jacor Broadcasting had cited as evidence of its good faith the fact that it played the announcements over the telephone for a Federal Communications Commission employee, and he, in turn, informally approved them prior to their broadcast. The NAL awarded no credit for this action, noting that the licensee was "ultimately responsible for the announcements broadcast on the station, a responsibility which [it] could not shift to Commission employees." 5. Jacor Broadcasting now acknowledges that informal staff approvals do not bind the Commission, but argues that its reasonable reliance on such an opinion is compelling evidence of its good faith efforts to assess its obligations. We are, however, not inclined to reduce a forfeiture for seeking such advice, where, as here, there is a question as to the matter on which the advice was sought, and the advice itself was not documented. Cf. Texas Media Group, Inc., 5 FCC Rcd 2851 (1990), aff'd sub nom. Malken FM Associates v. FCC, 935 F.2d 1313, 1319-20 (D.C.Cir. 1991) (statement of FCC insider at official seminar does not bind agency). 6. Our original forfeiture was calculated under the criteria of the Policy Statement, Standards for Assessing Forfeitures ("Policy Statement"), 6 FCC Rcd 4695 (1991), recon. denied 7 FCC Rcd 5339, revised, 8 FCC Rcd 6215 (1993). The Court of Appeals for the District of Columbia Circuit has set the Policy Statement aside. United States Telephone Ass'n v. FCC, 28 F.3rd 1232 (D.C. Cir. 1994). Thus, we must recalculate the forfeiture amount without regard to the criteria of the Policy Statement, taking into consideration the factors set forth in Section 503(b)(2)(D) of the Communications Act of 1934, as amended, namely the nature, circumstances, extent and gravity of the violation. In Southern California Broadcasting Company (KIEV-AM), 6 FCC Rcd 4387 (1991), decided before adoption of the Policy Statement, we affirmed a forfeiture of $10,000 for violations of Sections 317 and 73.1212. In that case, the sponsors of the programs at issue were not identified, and we found that listeners could not have been expected to realize that these were commercial programs absent proper sponsorship identification. 6 FCC Rcd at 4388. Here, in contrast, although their sponsor was also not revealed, the commercial nature of the announcements was clear to even the most casual listener. We believe that a forfeiture of $4,000 is appropriate under these circumstances. 7. Accordingly, IT IS ORDERED, that the application for review filed by Jacor Broadcasting of Colorado, Inc., IS DENIED. IT IS FURTHER ORDERED, that Jacor Broadcasting of Colorado, Inc., licensee of Station KOA-AM, Denver, Colorado, FORFEIT to the United States the sum of four thousand dollars ($4,000) for its repeated violation of Section 317 of the Communications Act of 1934, as amended, and Section 73.1212 of the Commission's Rules. Payment of the forfeiture may be made by mailing to the Commission, at the address indicated in the attachment to this Memorandum Opinion and Order, a check or similar instrument payable to the Federal Communications Commission. In regard to this forfeiture proceeding, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary