Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB-03-IH-0501       |
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| **CHRISTIAN VOICE OF CENTRAL     | ** | NAL/Acct. No. 200532080016   |
| OHIO INC.**                      |    |                              |
|                                  | *  | Facility ID No. 11126        |
| Licensee of Formerly             | *) |                              |
| Noncommercial Educational        | ** | FRN \# 0002990828            |
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| Station WCVZ(FM), South          | *  |                              |
| Zanesville, Ohio                 | *) |                              |
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**FORFEITURE ORDER**

**Adopted: May 9, 2008 Released: May 9, 2008**

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  By this *Forfeiture Order*, we impose a forfeiture of \$9,000 on
    Christian Voice of Central Ohio, Inc. ("Christian Voice"), licensee
    of formerly noncommercial educational television Station WCVZ(FM),
    South Zanesville, Ohio, for its willful and repeated broadcast of
    advertisements over the station, in violation of Section 399B of the
    Communications Act of 1934, as amended (the "Act"),[^1] and Section
    73.503(d) of the Commission\'s rules.[^2] We take this action
    pursuant to 47 U.S.C. § 503(b)(1)(D) and 47 C.F.R. § 1.80(f)(4).

    **II. BACKGROUND**

2\. This case arises from a complaint filed with the Commission in
September 2003, alleging that then-noncommercial educational Station
WCVZ(FM) broadcast prohibited underwriting announcements during the
month of August 2003.[^3] In April 2004, after the complaint had been
filed, but before the Enforcement Bureau (the "Bureau") had inquired
into this matter, Christian Voice sought to modify its station's
noncommercial educational license so that it could operate Station
WCVZ(FM) as a commercial facility.[^4] By letter dated June 17, 2004,
the Bureau inquired of the licensee concerning the allegations contained
in the complaint.[^5] The licensee responded to the Bureau's letter of
inquiry on July 19, 2004.[^6] Because the licensee's response failed to
answer the specific questions posed, among other things, the Bureau
thereafter contacted the licensee's counsel and directed that Christian
Voice file a further response providing such information, as required by
the *LOI*. Christian Voice further responded to the *LOI* on September
8, 2004.[^7]

3\. By *Notice of Apparent Liability for Forfeiture*, issued December 7,
2004,[^8] the Chief, Enforcement Bureau, found that the licensee had
apparently violated the pertinent statute and Commission rules, and
proposed a monetary forfeiture of \$20,000.[^9] On January 3, 2005,
Christian Voice responded to the *NAL*, maintaining that the Bureau's
ruling is erroneous, and that the proposed forfeiture should be either
cancelled or reduced.[^10]

**III. DISCUSSION**

4\. 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.[^11] As noted above,
stations such as then-noncommercial educational Station WCVZ(FM) may not
air advertisements. Although contributors to such stations may receive
on-air acknowledgements, the Commission has held that such
acknowledgements may be made for identification purposes only, and
should not promote the contributors' products, services, or businesses.

5\. *Commission Standards.* Specifically, such announcements may not
contain comparative or qualitative descriptions, price information,
calls to action, or inducements to buy, sell, rent or lease.[^12]
Nevertheless, the Commission has acknowledged that it is at times
difficult to distinguish between language that promotes versus that
which merely identifies the underwriter. Consequently, it expects that
licensees exercise reasonable, good-faith judgment in this area, and
affords some latitude to the judgments of licensees who do so.[^13]

6\. *The Announcements*. Christian Voice maintains that the Bureau erred
in finding that three of the ten announcements[^14] cited in the *NAL*,
*viz.*, those made on behalf of Tastee Freeze, The School House, and
Prindle-GMAC Real Estate, violate the Commission's underwriting rules by
promoting their respective sponsors.[^15] Christian Voice argues that
those announcements are specifically acceptable because they do not
contain price information, qualitative comparisons, or calls to action,
and are "at least as compliant with the rule \[as those\] found by the
Commission to be compliant in *Xavier*."[^16] On further consideration,
we agree that the announcement made on behalf of The School House, which
identifies the underwriter's available stock of "creative learning
materials," was made consistent with the licensee's discretion under
*Xavier*.[^17] As to the arguments Christian Voice has made concerning
the other two announcements it cites, however, we disagree, for the
reasons set forth below.

7\. The announcement made on behalf of Tastee Freeze characterizes the
underwriter's ice cream products in prohibited qualitative terms, by
noting that they are "tastefully decorated," and by attempting to induce
patronage by asking listeners whether they are "planning a special
occasion" which might require use of the underwriter's products. The
Prindle GMAC Real Estate announcement also impermissibly adverts to
favorable qualities possessed by the underwriter that seek to
distinguish its business from similar enterprises, and thus seeks to
induce patronage by stating that "we're all about family," and that "we
love selling real estate."[^18] In this case, the announcements in
question characterize their respective underwriters' products or
services in qualitative terms or otherwise attempt to induce business
patronage, which references are specifically forbidden.[^19] Such
statements, in the context of this case, are inconsistent with the
identification-only purpose of underwriting acknowledgments,[^20] and
are not value neutral. In the instant case, the references concerning
the underwriter's real estate agency imply that the agency possesses
special business affinity or experience that attempts to favorably
distinguish it from others.[^21] That the cited underwriting
announcements do not also contain price information does not render them
acceptable, and is not a mitigating factor.

8\. We further find no merit to Christian Voice's claim that the
forfeiture proposed is inconsistent with recent similar precedent.[^22]
The forfeiture amount proposed in the instant *NAL* reflects the
substantial number of announcements involved, *i.e.*, nine, and the
lengthy period of time during which the violations occurred, *i.e.*, 15
months. Those factors, taken as a whole, compound the seriousness of
this case and distinguish it from others.[^23] In addition, Christian
Voice's contention that "no civil penalty is appropriate for a
\[noncommercial educational\] station operating on a non-reserved
channel," as here, is baseless.[^24] The Commission has specifically
rejected this contention.[^25] Moreover, the case on which Christian
Voice attempts to rely for this proposition is inapposite.[^26] In *High
I-Q*, the Commission found that, in the context of a license renewal
proceeding, the licensee's premature commencement of commercial
operations on its noncommercial educational station, in conjunction with
other alleged rule violations, did not amount to disqualifying
misconduct. Noting that the licensee's broadcast of advertisements prior
to its receiving authorization to modify such facilities from
noncommercial to commercial operation would otherwise have subjected it
to a monetary forfeiture, the Commission declined to pursue such a
penalty for underwriting rule violations occurring several years prior
because the statute of limitations for doing so had already
expired.[^27] The Commission is not similarly constrained in this case,
and Christian Voice has not demonstrated otherwise. For the reasons set
forth in the *NAL*, we conclude that Christian Voice ignored settled
precedent and failed to properly exercise its good faith discretion in
broadcasting the underwriting announcements in question.[^28]

9\. Nor do we find mitigating Christian Voice's claim that several local
charities, who allegedly rely on support from the station, will suffer
financially if the licensee is required to pay the instant forfeiture
amount.[^29] That claim, even if true, is irrelevant to the matters at
issue in this case. Moreover, we note that Christian Voice has neither
provided financial evidence suggesting that it is unable to pay the
forfeiture, nor argued that such payment would create an undue hardship
threatening its station's continued operation.[^30] However, in
recognition of the fact that Christian Voice has maintained heretofore a
good overall compliance record, we will reduce the forfeiture
accordingly.

10\. *Forfeiture Calculation.* 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 monetary forfeiture penalty.[^31] In order to impose
such a forfeiture 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 forfeiture penalty should be imposed.[^32] 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.[^33] In this case, the *NAL* found that Christian Voice engaged in
a conscious and deliberate decision to broadcast the announcements at
issue, a finding which the licensee does not dispute. Accordingly, we
find that the announcements aired in violation of 47 U.S.C. § 399b and
47 C.F.R. § 73.503(d) were willful.

11\. The Commission's *Forfeiture Policy Statement* establishes a base
forfeiture amount of \$2,000 for the broadcast of programming in
violation of enhanced underwriting requirements.[^34] It also specifies
that the Commission shall adjust a forfeiture based upon consideration
of the factors enumerated in Section 503(b)(2)(E), such as "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 such other matters as justice may require."[^35] The
statutory maximum forfeiture amount for the violation in this case is
\$27,500.[^36] In this case, the *NAL* appropriately considered the
circumstances of this case, in particular the significant period of time
during which a significant number of prohibited announcements \--nine\--
were aired, and the substantial number of repetitions involved, in
concluding that an upward adjustment of the forfeiture amount from the
base amount of \$2,000 is warranted. However, in recognition of the fact
that Christian Voice has maintained heretofore a good overall prior
compliance record, and because partial reduction is appropriate for
excluding the announcement permissibly made on behalf of The School
House, we will reduce the forfeiture amount proposed in the *NAL* from
\$20,000 to \$9,000.[^37]

**IV. ORDERING CLAUSES**

12\. Accordingly, **IT IS ORDERED**, pursuant to Section 503(b) of the
Communications Act of 1934, as amended,[^38] and Sections 0.111, 0.311
and 1.80 of the Commission's rules,[^39] that Christian Voice of Central
Ohio, Inc., licensee of then-noncommercial educational Station WCVZ(FM),
South Zanesville, Ohio, **FORFEIT** to the United States the sum of Nine
Thousand Dollars (\$9,000) for willfully and repeatedly broadcasting
advertisements in violation of Section 399B of the Act, 47 U.S.C. §
399b, and Section 73.503(d) of the Commission\'s rules, 47 C.F.R. §
73.503(d).

13\. 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). Christian Voice will
also send electronic notification on the date said payment is made to
<Hillary.DeNigro@fcc.gov>, <Ben.Bartolome@fcc.gov> and to
<Kenneth.Scheibel@fcc.gov>. 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. [^40]   Christian Voice may contact the Financial
Operations Group Help Desk at 1-877-480-3201 or Email:
<ARINQUIRIES@fcc.gov> with any questions regarding payment procedures.

14\. **IT IS FURTHER ORDERED** that a copy of this *Forfeiture Order*
shall be sent, by Certified Mail, Return Receipt Requested, to Christian
Voice of Central Ohio, Inc., P.O. Box 783, New Albany, Ohio 43054, and
to its counsel, David J. Kaufman, Esq., Brown, Nietert & Kaufman,
Chartered, Suite 817, 2000 L Street, N.W., Washington, D.C. 20036.

FEDERAL COMMUNICATIONS COMMISSION

> Kris Anne Monteith
>
> Chief, Enforcement Bureau

[^1]: *See* 47 U.S.C. § 399b.

[^2]: *See* 47 C.F.R. § 73.503(d).

[^3]: *See* Letter from confidential complainant to Maureen Del Duca,
    Chief, Investigations and Hearings Division, Enforcement Bureau,
    dated September 11, 2003 ("*Complaint*").

[^4]: *See* File No. BMLH-20040415AEI, granted July 19, 2004 ("*WCVZ
    Commercial Application*").

[^5]: *See* Letter from William D. Freedman, Deputy Chief,
    Investigations and Hearings Division, Enforcement Bureau, to
    Christian Voice of Central Ohio, Inc., dated June 17, 2004
    ("*LOI*").

[^6]: *See* Letter from David J. Kaufman, Esq., to William D. Freedman,
    Deputy Chief, Investigations and Hearings Division, Enforcement
    Bureau, dated July 19, 2004 ("*July 19^th^ Response*").

[^7]: *See* Letter from David J. Kaufman, Esq., to William D. Freedman,
    Deputy Chief, Investigations and Hearings Division, Enforcement
    Bureau, dated September 8, 2004 ("*September 8^th^ Response*").

[^8]: *See Christian Voice of Central Ohio, Inc.*, Notice of Apparent
    Liability for Forfeiture, 19 FCC Rcd 23663 (Enf. Bur. 2004)
    ("*NAL*").

[^9]: *See id*.

[^10]: *See Response to Notice of Apparent Liability*, filed January 3,
    2005 ("*January 3^rd^ Response*").

[^11]: *See* 47 U.S.C. § 399b(a).

[^12]: *See Commission Policy Concerning the Noncommercial Nature of
    Educational Broadcasting Stations,* Public Notice (1986),
    *republished*, 7 FCC Rcd 827 (1992) ("*Public Notice*").

[^13]: *See Xavier University*, Letter of Admonition, issued November
    14, 1989 (Mass Med. Bur.), *recons. granted*, Memorandum Opinion and
    Order, 5 FCC Rcd 4920 (1990).

[^14]: Only ten announcements are at issue. We note that the *NAL*
    miscounted them as eleven.

[^15]: *See September 8^th^ Response* at 9-10. Although Christian Voice
    generally contends that the other announcements "arguably comply"
    with the Commission's underwriting rule, it does not specify how.
    *See id*.

[^16]: *See January 3^rd^ Response* at 9*, citing Xavier.*

[^17]: *See, e.g., Xavier*, *supra*, note 13, where the Commission found
    the reference to the underwriter's "creative services for
    advertising, marketing and training," to be non-promotional because
    employing creative material is the stock-in-trade of all advertising
    agencies.

[^18]: *Minority TV NAL,* 17 FCC Rcd 15646, 15652 (where airline
    underwriter was depicted as "harmoniously-run carrier" through
    portrayal of its content workers, message found to impermissibly
    encourage business patronage).

[^19]: *See Public Notice supra*.

[^20]: *See id*.

[^21]: *Cf. Xavier, supra*, note 13.

[^22]: *January 3^rd^ Response* at 6-8.

[^23]: *See Family Life Educational Foundation (KOUZ(FM))*, Notice of
    Apparent Liability, 17 FCC Rcd 16137 (Enf. Bur. 2002) (forfeiture
    paid) (\$2,000 forfeiture imposed for repeated violation involving
    120 repetitions of one message over a three-month period); *Southern
    Rhode Island Broadcasting, Inc.*, Notice of Apparent Liability, 15
    FCC Rcd 8115 (Enf. Bur. 2000) (forfeiture paid) (\$1,000 forfeiture
    imposed for unspecified number of repetitions of five prohibited
    messages over two-day period); *Window to the World Communications,
    Inc.*, Memorandum Opinion and Order, 15 FCC Rcd 10025 (Enf. Bur.
    2000) (forfeiture reduced) (\$2,000 forfeiture imposed for
    unspecified number of repetitions of single prohibited message over
    an unspecified period); *Minority TV FO,* 18 FCC Rcd 26611, 26614, ¶
    11 (Enf. Bur. 2003) (\$10,000 forfeiture imposed for 1,911
    repetitions of seventeen prohibited announcements over two-year
    period). Although *Minority TV FO* presents many facts analogous to
    those of the instant case, it was decided several years ago, and
    proposed a forfeiture amount that we believe is insufficient when
    compared to recent similar precedent. Furthermore, citing *Fort
    Wayne Public Television, Inc.,* Memorandum Opinion and Order, 19 FCC
    Rcd 20869 (Enf. Bur. 2004) (forfeiture paid), Christian Voice also
    attempts to rely on a case that was settled through consent decree.
    That reliance is misplaced. The voluntary contribution amount set in
    a consent decree case is affected by many additional factors not
    present in a straight-forward forfeiture proceeding, including other
    negotiated terms and the avoidance of further enforcement efforts by
    the Commission. Accordingly, *Fort Wayne*, in which the Commission
    agreed to a minimal voluntary contribution amount of \$1,000 because
    the licensee had voluntarily proposed acceptable settlement terms,
    is inapposite.

[^24]: *January 3^rd^ Response* at 1-4.

[^25]: *See Commission Policy Concerning the Noncommercial Nature of
    Educational Broadcast Stations*, First Report and Notice of Proposed
    Rulemaking, 69 FCC 2d 200, 230, ¶ 61 (1978) (the Commission held
    that noncommercial educational stations operating on the
    non-reserved channels are also required to follow the underwriting
    rules pertaining to similar stations operating on the reserved
    bands).

[^26]: *See High I-Q Radio, Inc*., Memorandum Opinion and Order, 19 FCC
    Rcd 7225 (2004).

[^27]: *See id.* at 7235, ¶ 38; 7240, ¶ 51.

[^28]: *See Xavier, supra,* note 13 (the Commission defers to the
    reasonable good faith judgments exercised by licensees and finds
    violations where material is clearly promotional as opposed to
    merely identifying).

[^29]: *See January 3^rd^ Response* at 4-6.

[^30]: *See id.* at 4-5.

[^31]: *See* 47 U.S.C. § 503(b)(1)(B); *see also* 47 C.F.R. §
    1.80(a)(1). 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. 47 U.S.C. §
    312(f)(1). 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, H.R. Rep. No. 97-765, 97^th^ Cong. 2d
    Sess. 51 (1982), and the Commission has so interpreted the term in
    the Section 503(b) context. *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.*"). The Commission may also assess a forfeiture for violations
    that are merely repeated, and not willful. *See, e.g.,* *Callais
    Cablevision, Inc., Grand Isle, Louisiana*, Notice of Apparent
    Liability, 16 FCC Rcd 1359 (2001) (issuing a Notice of Apparent
    Liability for, *inter alia*, a cable television operator's repeated
    signal leakage). "Repeated" merely means that the act was committed
    or omitted more than once, or lasts more than one day. *Southern
    California Broadcasting Co.,* 6 FCC Rcd at 4388, ¶ 5; *Callais
    Cablevision, Inc.,* 16 FCC Rcd at 1362, ¶ 9.

[^32]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).

[^33]: *See, e.g., SBC Communications, Inc.,* Notice of Apparent
    Liability, Forfeiture Order, 17 FCC Rcd 7589, 7591, ¶ 4 (2002)
    (forfeiture paid).

[^34]: *See The Commission's Forfeiture Policy Statement and Amendment
    of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines*, 12 FCC Rcd 17087, 17113 (1997), *recons. denied,* 15
    FCC Rcd 303 (1999) ("*Forfeiture Policy Statement*"); 47 C.F.R. §
    1.80(b).

[^35]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17100-101, ¶ 27.

[^36]: Effective September 7, 2004, the Commission amended its rules to
    increase the maximum penalties to account for inflation since the
    last adjustment of the penalty rates*. See Amendment of Section 1.80
    of the Commission's Rules*, Order, 19 FCC Rcd 10945, 10946, ¶ 6
    (2004). Under the revised rules, for violations occurring after the
    effective date, the Commission may propose forfeitures against
    broadcast licensees of up to \$32,500 per violation. This broadcast
    occurred before that effective date, so the statutory maximum
    applicable here is \$27,500.

[^37]: *See* 47 C.F.R. § 1.80(b)(4); *see, e.g., Pittman Broadcasting
    Services, LLC*, Forfeiture Order, 19 FCC Rcd 15320, 15322 (Enf. Bur.
    2004) (where reduction based on prior record of compliance was found
    warranted).

[^38]: *See* 47 U.S.C. § 503(b).

[^39]: *See* 47 C.F.R. §§ 0.111, 0.311, and 1.80.

[^40]: *See* 47 C.F.R. § 1.1914.