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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No: EB-09-IH-0574
Radio License Holding XI, LLC ) Facility ID No.: 73227
Licensee of Station WLS(AM), ) NAL/Acct. No.: 201232080012
Chicago, Illinois ) FRN: 0014650006
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 2, 2012 Released: February 3, 2012
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we assess
a monetary forfeiture in the amount of forty-four thousand dollars
($44,000) against Radio License Holding XI, LLC ("Radio License" or
the "Licensee"), licensee of Station WLS(AM), Chicago, Illinois ("the
Station"), for its apparent willful violation of section 317 of the
Communications Act, as amended ("the Act"), and section 73.1212 of the
Commission's rules. These provisions generally require a licensee to
make sponsorship identification announcements whenever it broadcasts
matter in return for money, service, or other valuable consideration.
As discussed below, we find that Radio License apparently violated
section 317 of the Act and the Commission's sponsorship identification
rule.
II. BACKGROUND
2. The Commission received a complaint alleging that, on March 19, 2009,
at 2:29 p.m., the Station aired program matter on behalf of an
organization called Workers Independent News ("WIN") without
adequately disclosing the fact that it was an advertisement, rather
than a news story. The Enforcement Bureau ("Bureau") issued a letter
of inquiry ("LOI") to the Licensee concerning the allegations raised
in the Complaint. The Licensee responded to the LOI on February 18,
2011.
3. In its Response, Radio License states that, during the period March 18
to May 30, 2009, it aired program matter on behalf of WIN, in return
for consideration or the promise of consideration provided by WIN.
Next, Radio License explains that the program matter consisted of a
total of 45 ninety-second spots, 27 fifteen-second promotional
announcements, 2 two-hour programs, and 1 one-hour program. Radio
License further explains that all of the program matter listed
immediately above complied with the Commission's sponsorship
identification requirements except for 11 of the 45 ninety-second
spots. Regarding these 11 announcements, Radio License states that all
of these 11 spots referenced "Workers Independent News" and identified
the narrator, but did not specifically state that the program matter
was sponsored, paid for, or furnished by WIN. Despite this omission,
Radio License contends that the announcements satisfy the Commission's
sponsorship identification requirements.
4. Radio License provided recordings and transcripts for the
announcements at issue. The transcript of one of these announcements,
in its entirety, is as follows:
Workers Independent News, I'm Doug Cunningham. As Federal Economic
Stimulus
dollars flow to Chicago, State Representative Joe Lyons says it's more
critical than ever
that the State put together a capital bill to take maximum advantage of
the stimulus to
put Chicago back to work.
(Joe Lyons quote) "Unfortunately for the past 2 or 3 years, with the
situation we've had
in this state, the time wasn't right to put a capital bill together. One
of the major issues
that we will have to do before we adjourn the general assembly is get a
capital bill to tap
into some of that [f]ederal [m]oney that can make putting (mumbled word -
at :39 of the
clip) people to work and getting good jobs to people here in Illinois all
the easier."
Lyons says securing funding for the capital bill will allow projects to be
bonded out,
improving not only employment and the economy, but Chicago's
infrastructure as well.
(Joe Lyons quote) "Ask anybody in Chicago about the crumbling street
situation. Ask
anybody who's been waiting for a school addition or new windows or some
project that's
being done for education, ask anybody who's been for any kind of a capital
project across
the state, we have not had that umph that we need to kick-start this whole
thing and there's
going to be federal matching funds on the transportation end of it to get
this done for CTA
or RTA.["]
The capital bill could make Olympics infrastructure preparation easier,
should Chicago land
the 2016 Olympic Games. As Illinois Director of Veteran's Affairs, Dan
Grant, says as construction projects ramp up, existing [s]tate programs to
help veterans can be used in
combination with them to multiply job opportunities for veterans.
(Dan Grant quote) "For example, a tax credit for employers who hire
veterans, we have
veterans employment preference for [s]tate jobs."
Doug Cunningham, Workers Independent News.
5. The Licensee offers several arguments in support of its contention
that the referencing of "Workers Independent News" in the 11
announcements at issue satisfies the sponsorship identification
requirements. First, it argues that each of the 11 announcements
identified the sponsor thereof by name and thus satisfied the
underlying purpose or "basic requirement" of section 73.1212(f). In
addition, the Licensee contends that the program matter was
identifiable as paid programming because it "was included with other
commercial matter and not embedded within [the Station's] news
content." Finally, the Licensee notes that the complainant was aware
that the material was paid programming because he/she stated that
"[o]ne of the advertisers is `Workers Independent News' and that
`[a]ds from "WIN" are intermixed with legitimate news/talk
programming.'"
III. DISCUSSION
6. Section 317(a)(1) of the Act and section 73.1212(a) of the
Commission's rules require broadcast stations to broadcast an
announcement disclosing whenever any matter is broadcast in exchange
for valuable consideration "directly or indirectly paid or promised to
or charged or accepted by, the station so broadcasting" at the time
the material is aired. Specifically, section 317(a)(1) provides:
All matter broadcast by any radio station for which any money, service or
other valuable consideration is directly or indirectly paid, or promised
to or charged or accepted by, the station so broadcasting, from any
person, shall, at the time the same is so broadcast, be announced as paid
for or furnished, as the case may be, by such person: Provided, That
"service or other valuable consideration" shall not include any service or
property furnished without charge or at nominal charge for use on, or in
connection with, a broadcast unless it is so furnished in consideration
for an identification in a broadcast of any person, product, service,
trademark, or brand name beyond an identification which is reasonably
related to the use of such service or property on the broadcast.
Section 73.1212(a) of the Commission's rules, which implements section
317(a)(1) of the Act, further provides:
When a broadcast station transmits any matter for which money, service, or
other valuable consideration is either directly or indirectly paid or
promised to, or charged or accepted by such station, the station, at the
time of the broadcast, shall announce:
1. That such matter is sponsored, paid for, or furnished, either in whole
or in part, and
2. By whom or on whose behalf such consideration was supplied: Provided,
however, That "service or other valuable consideration" shall not
include any service or property furnished without or at a nominal
charge for use on, or in connection with, a broadcast unless it is so
furnished in consideration for an identification of any person,
product, service, trademark, or brand name beyond an identification
reasonably related to the use of such service or property on the
broadcast.
7. The Commission has explained that the sponsorship identification rules
are "grounded in the principle that listeners and viewers are entitled
to know who seeks to persuade them." The disclosures required by the
sponsorship identification rules provide listeners and viewers with
information concerning the source of material in order to prevent
misleading or deceiving those listeners and viewers.
8. Radio License does not maintain that sponsorship identification
provisions of the Act and the rules are inapplicable to the 11
promotional announcements at issue; instead, it argues that the
announcements satisfied the Act and the rules. We reject Radio
License's contention that the 11 announcements at issue, which were
informational program material related to a state legislative issue
impacting the local economy of Chicago, satisfy the Commission's
sponsorship identification requirements. We note that Radio License
offers no precedent in support of its argument that, because each of
the announcements identified "Workers Independent News" by name, they
satisfied the "basic requirement" of section 73.1212(f) and thus
fulfill the sponsorship identification requirements. Section
73.1212(f) in pertinent part provides that "[i]n the case of broadcast
matter advertising commercial products or services, an announcement
stating the sponsor's corporate or trade name. . . shall be deemed
sufficient for the purpose of this section . . . ." As Radio License
acknowledges, section 73.1212(f) applies in instances of broadcast
matter advertising commercial products or services, while the
announcements at issue do not involve commercial products or services
and thus do not fall within the purview of this subsection. In
addition, we disagree that the underlying purpose of the rule was
satisfied because the name itself, "Workers Independent News," in
contrast to a corporate or trade name, implies or creates the
impression of an objective news program rather than an attempt at
persuasion. We therefore find this argument to be without merit.
9. Radio License also contends, without precedential support, that the
announcements at issue satisfy the sponsorship identification
requirements because they were "included with other commercial matter
and not embedded within [the Station's] news content" and thus were,
presumably, identifiable by listeners as paid programming. We are not
persuaded by this argument. Since the subject matter of the 11
announcements at issue related to a state legislative issue impacting
the local economy of Chicago, it would not have been apparent to
listeners from the announcements themselves that they were sponsored
programming, even if commercial programming preceded and succeeded the
11 spots. In addition, the name "Workers Independent News," content,
format and duration of the announcements were not consistent with
typical commercial matter. Finally, the fact that the complainant may
have been aware that the material he complained about was paid
programming does not absolve the Licensee from complying with the
Commission's sponsorship identification requirements.
10. 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. 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. 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 Act, and the
Commission has so interpreted the term in the section 503(b) context.
In order to impose such a penalty, the Commission must issue a notice
of apparent liability, the notice must be received, and the person
against whom the notice has been issued must have an opportunity to
show, in writing, why no such penalty should be imposed. The
Commission will then issue a forfeiture if it finds, by a
preponderance of the evidence, that the person has willfully or
repeatedly violated the Act or a Commission rule.
11. The Commission's forfeiture guidelines establish a base forfeiture
amount of four thousand dollars ($4,000) for sponsorship
identification violations. In addition, the Commission's rules provide
that base forfeitures may be adjusted based upon consideration of the
factors enumerated in section 503(b)(2)(E) of the Act and section
1.80(a)(4) of the Commission's rules, which include "the nature,
circumstances, extent, and gravity of the violation . . . and the
degree of culpability, any history of prior offenses, ability to pay,
and such other matters as justice may require." Based upon our review
of the record in this case and the statutory factors identified above,
we find that Radio License is apparently liable for a forfeiture in
the amount of forty-four thousand dollars ($44,000). This represents
the base amount for each of the 11 instances in which a WIN-sponsored
announcement was broadcast without disclosing that the announcement
was sponsored, paid for, or furnished by WIN.
IV. ORDERING CLAUSES
12. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.311,
0.314, and 1.80 of the Commission's rules, that Radio License Holding
XI, LLC is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in
the amount of forty-four thousand dollars ($44,000) for its apparent
willful violation of the sponsorship identification requirements of
section 317 of the Communications Act of 1934, as amended, and section
73.1212 of the Commission's rules.
13. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
rules, that within thirty (30) days of the release date of this Notice
of Apparent Liability for Forfeiture, Radio License Holding XI, LLC
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
14. 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 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. Radio License Holding XI, LLC must also
send electronic notification on the date said payment is made to
Terry.Cavanaugh@fcc.gov, Anjali.Singh@fcc.gov, and
Melissa.Marshall@fcc.gov.
15. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Commission's rules. The written
statement shall be mailed to the Chief, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Room 4-C330, Washington, D.C. 20554, and MUST
INCLUDE the NAL/Account Number referenced above. To the extent
practicable, any response should also be sent by e-mail to
Terry.Cavanaugh@fcc.gov, Anjali.Singh@fcc.gov, and
Melissa.Marshall@fcc.gov.
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the respondent 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 respondent'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.
17. IT IS FURTHER ORDERED that the Complaint IS GRANTED to the extent
indicated herein and IS OTHERWISE DENIED, and the Complaint proceeding
IS HEREBY TERMINATED.
18. IT IS FURTHER ORDERED, that a copy of this Notice of Apparent
Liability for Forfeiture shall be sent, by Certified Mail/Return
Receipt Requested, to Radio License Holding XI, LLC, at its address of
record and to its counsel, Dennis P. Corbett, Nancy A. Ory, and F.
Scott Pippin, Lerman Senter PLLC, 2000 K Street, N.W., Suite 600,
Washington, D.C. 20006-1809.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
See 47 U.S.C. S: 317(a)(1); 47 C.F.R. S: 73.1212.
See FCC Form 2000E, Complaint No. 09-C00104365-1 ("Complaint").
See Letter from Kenneth M. Scheibel, Jr., Assistant Chief, Investigations
& Hearings Division, Enforcement Bureau, to Radio License Holding XI, LLC,
dated January 19, 2011 ("LOI").
See Letter from Dennis P. Corbett, Nancy A. Ory, and F. Scott Pippin,
Counsel to Radio License Holding XI, LLC, Lerman Senter PLLC, to Paul
Noone, Special Counsel, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, dated February 18, 2011 ("LOI
Response" or "Response").
See id. at 2.
See id. at 2-3.
See 47 C.F.R. S: 73.1212.
Specifically, Radio License explains that the one-hour and two-hour paid
programs each included the statement "Workers Independent News is a paid
program sponsored by Workers Independent News," 34 of the 45 ninety-second
spots contained an introductory statement noting that "[t]his message is
paid for by the Workers Independent News Network," and the 27
fifteen-second promotional announcements each encouraged listeners to tune
in for a "Workers Independent News" special the following Saturday. See
LOI Response at 3. With respect to the 27 fifteen-second promotional
announcements, Radio License notes that they promoted WIN by name, and
argues that they raise no FCC-compliance issues. See id. We agree. Those
promotional announcements clearly identified WIN as the sponsor of the
announcements and therefore satisfied our sponsorship identification
requirements. See 47 C.F.R. S: 73.1212.
See LOI Response at 3.
See id.
See id. at Exhibits A & B.
See id. at Exhibit A, Spot # C463, and Exhibit B (audio recording), Track
6.
LOI Response at 3-4. See 47 C.F.R. S: 73.1212(f).
See LOI Response at 4.
See id. (citing Complaint).
47 U.S.C. S: 317(a); 47 C.F.R. S: 73.1212(a).
47 U.S.C. S: 317(a)(1).
47 C.F.R. S: 73.1212(a).
See, e.g., Commission Reminds Broadcast Licensees, Cable Operators and
Others of Requirements Applicable to Video News Releases and Seeks Comment
on the Use of Video News Releases by Broadcast Licensees and Cable
Operators, Public Notice, 20 FCC Rcd 8593, 8593-94 (2005).
See Sonshine Family Television, Inc., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 18686 (2007), Forfeiture Order, 24 FCC Rcd 14830,
14834 P: 12 (2009) (forfeiture reduced and paid).
See LOI Response at 3-4. This decision is consistent with prior Commission
precedent. See, e.g., Midwest Radio-Television, Inc., Memorandum Opinion
and Order, 49 FCC 2d 512 (1974) (assessing forfeiture for a violation of
sponsorship identification laws and noting that "This is Jack Douglas
speaking for the Minnesota School Boards Association," is not sufficient
identification as there was no indication that the announcement was
sponsored or paid for by the association); Lamar A. Newcomb, Memorandum
Opinion and Order, 1 FCC 2d 1395 (1965) (assessing forfeiture for a
violation of sponsorship identification laws and noting that the program
sponsored by Reverend Dale Crowley identified by announcement of the words
"Dale Crowley" does not constitute sufficient identification because there
was no indication that the Reverend Crowley was sponsoring or paying for
the program).
47 C.F.R. S: 73.1212(f).
See LOI Response at 3-4.
See, e.g., Jacor Broadcasting of Colorado, Inc., Memorandum Opinion and
Order and Forfeiture Order, 12 FCC Rcd 9969 (1997), Notice of Apparent
Liability for Forfeiture, 8 FCC Rcd 7892 (1993) (applying section
73.1212(f) in a case that involved announcements promoting the commercial
services and attractions of a city ). See also Commission Reminds
Broadcast Licensees and Cable Operators of Sponsorship Identification
Requirements Applicable to Paid-For "Public Service" Messages, Public
Notice, 6 FCC Rcd 5861, 5861 P: 4 (1991) (stating "[t]he provisions of
Section[ ] 73.1212(f) . . . do not apply unless `commercial products or
services' are being advertised.").
See LOI Response at 3-4.
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1). See also 47 U.S.C.
S: 503(b)(1)(D) (providing that any person who is determined by the
Commission to have violated any provision of section 1464 shall be liable
for a forfeiture penalty).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 P: 4 (2002) (forfeiture paid).
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, 17115 (1997), recons. denied, 15 FCC 303 (1999)
("Forfeiture Policy Statement"); 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80(a)(4).
See 47 U.S.C. S:S: 317, 503(b).
See 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1212.
For purposes of the forfeiture proceeding initiated by this NAL, Radio
License Holding XI, LLC, shall be the only party to this proceeding.
(Continued from previous page)
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Federal Communications Commission FCC 12-16
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Federal Communications Commission FCC 12-16