**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

March 23, 1999

**In reply refer to:**

1800B1-KMS

98020334

98020274

Evansville-Vanderburgh School Corporation

Licensee, Noncommercial Educational Station WPSR(FM)

5400 First Avenue

Evansville, IN 47710

Dear Licensee:

By this letter, we conclude our investigation into allegations that
noncommercial radio station WPSR (FM), Evansville, Indiana, licensed to
Evansville-Vanderburgh School Corporation (\"EVSC\") violated Section
399B of the Communications Act of 1934, as amended (\"the Act\"), and
Section 73.503(d) of the Commission\'s Rules, as well as related
policies. The possible violations involve donor and underwriting
announcements on noncommercial educational stations.

Section 399B of the Act, as implemented by Section 73.503 of the
Commission\'s Rules, prohibits public radio and television 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]{.underline} [Public Notice]{.underline}, \"In the Matter of
the Commission Policy Concerning the Noncommercial Nature of Educational
Broadcasting Stations,\" 7 FCC Rcd 827 (1986). In this case, a complaint
was filed alleging that various announcements broadcast by your station,
the transcriptions of which we have attached, appear to promote the
products or services of presumably for-profit entities in apparent
contravention of the statute, as interpreted and implemented by
applicable Commission rules, precedent and policy. These include
Orthopedic Associates, Lady Eagle Basketball Camp, Schnucks, Mediamix
Communications, Ohio Valley Cable and Wireless Systems, Subway
Sandwiches, Raben Tires, Old National Bank, Evansville State Farm,
Shyler\'s Memphis Pit Barbecue, Clayton\'s Dry Cleaning, Edco
Evansville, Prudential, and Shaffer Tours.

In response to the complaint containing these allegations, we issued a
letter of inquiry dated June 25, 1998. In your August 27, 1998
response,[^1] you contend that no violation of the relevant statute or
the Commission\'s rules occurred. You assert that the content of the
announcements at issue was at all times consistent with Commission
policy and case precedent on donor acknowledgements, and was based on a
\"good faith\" interpretation of the applicable law. Specifically, you
claim that none of the more than twenty cited announcements may be
deemed to promote the relevant for-profit donors\' products or services.
In this regard, you contend that any comparative or qualitative language
used in the announcements was rendered nonpromotional and permissible
because the underlying message was \"verifiable;\"[^2] that any
comparative or qualitative language was contained in an established
company logogram or slogan; and that references to sponsor products or
services provided \"free of charge\" or as \"fresh value meals\" did not
constitute prohibited price information or an inducement to patronize
the sponsor\'s business establishment.

Upon careful consideration of the record in this case, taking into
account your response, we find that you did broadcast impermissible
advertisements for the benefit of for-profit entities, in violation of
Section 399B of the Communications Act, and Section 503(d) of the
Commission\'s Rules. Contrary to your assertion, the use of comparative,
qualitative descriptive language is not rendered nonpromotional and
permissible merely because the message conveyed is \"verifiable.\"
Moreover, prohibited price information may be deemed to include
reference to specific price information, available sponsor discounts, or
products or services offered by the sponsor at no cost or \"free.\"
[See]{.underline} [Public Notice]{.underline}, [supra]{.underline}.[^3]
Furthermore, although the Commission acknowledged in the [Public
Notice]{.underline} that licensees may exercise their \"good faith\"
discretion to determine the text of their underwriting announcements, it
specifically cautioned that logograms or slogans used by corporations
and businesses are permitted only \"*so long as they do not contain
comparative or qualitative descriptions of the donor\'s products or
services*.\" Finally, we reject your separate argument that the \"menu
listing\" of the qualifications or attributes of a sponsor\'s personnel
may be reasonably construed to be nonpromotional. In this regard, you do
not explain how this practice renders the message nonpromotional or is
consistent with the \"identification only\" purpose of underwriting
announcements.

.

Accordingly, we find that you have violated Section 399B of the
Communications Act and Section 73.503(d) of the Commission\'s Rules
regarding permissible donor and underwriting announcements on
noncommercial educational stations. From the information you provided,
it appears that the approximately twenty offending announcements were
broadcast repeatedly during the period November 1997 through March 1998.

In considering these apparent violations, we note favorably that the
station has maintained an unblemished record prior to the instant case.
Due to your contention that the announcements in question were uniformly
acceptable, however, we remain concerned that your station\'s existing
practices in this area are deficient, and that the broadcast of
similarly impermissible underwriting acknowledgements may be continuing.
You are therefore urged to conform your practices and procedures in this
area to conform to the applicable Commission policy and precedent at
once.[^4] In view of the foregoing, you are hereby admonished for the
violations described above. This letter will be made part of Station
WPSR(FM)\'s complaint file.

Sincerely,

Norman Goldstein, Chief

Complaints & Political Programming Branch

Enforcement Division

Mass Media Bureau

Attachment

cc: Complainant

[February 7th, 1998]{.underline}

[Orthopedic Associates]{.underline}

Orthopedic Associates, professionals in sports medicine, are happy to
join other community leaders in underwriting USI Basketball radio
broadcasts. Orthopedic Associates operates an emergency sports clinic
for diagnosis and treatment of sports injuries. *Each doctor is board-
certified by the American Board of Orthopedic Surgery.* There is also an
on-site physical therapy unit available. *Orthopedic Associates, your
first team for quality care***. . . .**

(The highlighted segments appear to promote underwriter through
references that contain impermissible comparative, qualitative and
descriptive language.)

[Lady Eagle Basketball Camp]{.underline}

The Lady Eagle Basketball Coach James Dougal will once again hold a
series of basketball camps on the USI campus during the summer of \'98.
*Six of the current Lady Eagles attended camps during their junior high
and high school days.* The \[unintelligible\] basketball camps include
camps for grade school players as well as an overnight junior high camp.
*And new this year separate shooting and post-player camps, former and
current USI players will be assisting the Lady Eagles basketball
coaching staff in the 8th annual \[unintelligible\] basketball camps.
For more info, contact the USI Basketball Office.*

(The highlighted segments appear to exceed the identification-only
purpose of underwriting announcements through impermissible descriptive
references to the underwriter\'s instructional camps.)

[Schnucks]{.underline}

Schnucks, *the friendliest store in town, has made it convenient for
those people wanting to order a flower bouquet or just buy a single
flower, for any occasion.* The floral department is located inside many
of the Schnucks\' stores, the floral department has predesigned bouquets
available or can design to individual specifications. Along with the
flowers there is a full line of party balloons to choose from. Food,
flowers and more, Schnooks and it\'s floral department. That\'s
Schnucks, a proud sponsor of USI Basketball.

(The highlighted segments appear to promote underwriter through
references that contain impermissible comparative, qualitative and
descriptive language.)

[Mediamix Communications]{.underline}

Communication. *Effective communication is imperative for any successful
company. Effective communication is Mediamix. Whether your audience is
your customer or your employees, Mediamix Communications will design a
unique and meaningful plan for you. From corporate publications and
videos to creative broadcast production, and effective advertising
strategies, the energetic and experienced Mediamix staff maximizes their
every resource and talent, and we deliver results.* Mediamix
Communications, because our business is yours.

(The highlighted segment appears to be replete with references that
promote the underwriter through use of impermissible comparative,
qualitative and descriptive language.)

[Ohio Valley Cable and Wireless Systems]{.underline}

Ohio Valley Cable and Wireless Systems is proud to join the Screaming
Eagles as a basketball and radio underwriter. Ohio Valley Cable offers
movies, weather and sports. There\'s TCM, Turner Classic Movies, the
Weather Channel, and ESPN 2. The Sports Deuce includes its entire lineup
of college basketball games. In addition, all local network affiliates
are included, including WAOZ. *The service from Ohio Valley Cable,
there\'s no equipment to purchase, and no contract needed.* Serving all
the Evansville metro area, Ohio Valley Cable and Wireless Systems . . .
.

(The highlighted segment contains language that appears to provide
impermissible price information and otherwise seeks to induce business
patronage.)

[Subway Sandwiches]{.underline}

Subway Sandwiches on West Lloyd is a proud sponsor of University of
Southern Indiana Basketball on radio. *Subway Sandwiches on West Lloyd
is currently featuring its fresh value meals. One can choose from one of
eight different sandwiches, complete with chips and a 21 oz. drink. The
fresh value meals from subway sandwiches comes with a money-back
guarantee for satisfaction. That\'s a Subway Sandwiches fresh value
meals* and USI Basketball.

(The highlighted segment appears to promote underwriter through
references that contain impermissible price information, and otherwise
seek to induce business patronage.)

[Raben Tires]{.underline}

Since 1952, Raben Tires has been serving the tri-state\'s tire and
automotive service needs. *Some of Raben Tires\' most recognized
brand-name tires are Goodyear, Michelin, and Dayton. Raben has a large
selection of all-season tires for pasture performance, light trucks, and
4x4\'s on many sizes and styles. Raben Tires offers free tire mounting,
free lifetime tire rotations with purchase, and free estimates and brake
inspections. Raben also offers a free shuttle service if you need a
ride.* Raben would like to thank the tri-state area for 45 good years.
*See your friends at any of the 10 convenient tri-state Raben Tires
locations.*

(The highlighted segment is replete with references that induce the
listener to buy and appear to promote the underwriter through language
that is impermissibly comparative, qualitative, and descriptive; and
that provide prohibited price information.)

[Old National Bank]{.underline}

*Financial services from people with old-fashioned know-how is a way of
life for us at Old National*. Because being your bank for life is more
than just a good day\'s work, it\'s our life\'s work. Here\'s to life,
from your bank for life, Old National.

(The highlighted segment appears to promote underwriter through
references that contain impermissible comparative, qualitative and
descriptive language.)

[Evansville State Farm]{.underline}

*With Evansville State Farm agent Jim Doman you\'re not just a number,
you\'re an individual with your own insurance needs. Whether its car,
home, health or life insurance, your good-neighbor State Farm agent can
make sure that one has the insurance that\'s right. State Farm Agent Jim
Doman at . . . for all your insurance needs,* or any questions you have
about insurance. Jim Doman State Farm Insurance is proud to underwrite
these USI Basketball games on radio.

(The highlighted segment appears to promote underwriter through
references that impermissibly intend favorable comparison to
competitors, or otherwise invite business patronage.)

[Shyler\'s Memphis Pit Barbecue]{.underline}

*When you\'re really hungry, remember Shyler\'s Memphis Pit Barbecue,
where there\'s the salad, the potatoes, and the barbecue.* Shyler\'s got
babyback ribs and St. Louis style too. Whether it\'s to eat in, carry
out, or catering for that small to large party. Shyler\'s Memphis Pit
Barbecue, *you don\'t know barbecue until you\'ve had Shyler\'s*.

(The highlighted segments appear to promote underwriter through
references that impermissibly intend favorable comparison to
competitors, or otherwise invite business patronage.)

[Clayton\'s Fine Dry Cleaning]{.underline}

Clayton\'s Fine Dry Cleaning *is right on the way to wherever one is
going* with nine locations in Evansville, Newburgh, and Mt. Vernon.
*Clayton\'s has canopy-covered drive-thrus and attendants to offer
in-car service to make dropping off and picking up one\'s cleaning
convenient. And with Clayton\'s Sanitone dry cleaning process, it\'s
easy to see why people trust Clayton.*

(The highlighted segments appear to promote underwriter through
references that contain impermissible comparative, qualitative and
descriptive language, and that otherwise invite business patronage.)

[Edco Evansville]{.underline}

Edco Evansville wishes good luck to Screaming Eagles during the 1997-98
campaign. Edco Evansville operates two gas stations with convenience
stores in Evansville . . . . Each store offers Pennzoil gasoline while
the convenience store offers items for the person on the go. Edco
Evansville *is also the number-one lottery ticket retailer for Hoosier
and Powerball lottery tickets in Region Seven.* That\'s Edco of
Evansville.

(The highlighted segment appears to promote underwriter through
reference that impermissibly intends favorable comparison to
competitors.)

[Shyler\'s Memphis Pit Barbecue]{.underline}

*When you\'re in the mood for barbecue, you can take Shyler\'s home with
you. For a meal fit for the family, one can call and carry-out for that
extra large meal,* there\'s also catering too. Parties, lunches,
reunions and more, the catering van brings it to your door. For
Shyler\'s and catering too, one can call. . . . Shyler\'s Memphis Pit
Barbecue, *you don\'t know barbecue until you\'ve had Shyler\'s.*

(The highlighted segments appear to promote underwriter through
references that contain impermissible comparative, qualitative and
descriptive language, and that otherwise invite business patronage.)

[Old National Bank]{.underline}

Dear Mom and Dad, school is good, send money. Dear Son, your writing
skills are improving. *We\'ll send cash on one condition, get collegiate
checking from Old National. Unlimited check writing, no monthly service
charge, no minimum balance, plus a MAC/ATM card, 24 hour banking, no
transaction fees, no matter where you use it, even that dreadful Daytona
Beach, and with your own Visa or Mastercard you won\'t have to grovel
for money. Get collegiate checking from Old National*, and get a
haircut. Love, Dad. Old National, you bank for life, an equal
opportunity lender.

(The highlighted segment appears to promote underwriter through
references that contain impermissible comparative, qualitative and
descriptive language; that provide prohibited price information; and
that otherwise invite business patronage.)

[Prudential]{.underline}

*(first voice) Look at those little hands, he\'ll be a surgeon, a brain
surgeon, we\'ll send him to the best schools, well, that\'s like
\$160,000. OK maybe not a brain surgeon, a regular surgeon, that gets it
down to \$140,000. Hey, maybe a tree surgeon, what am I saying. How did
dad do it?*

*(second voice) Son, I called Prudential.*

*(first voice) I think I\'ll call Prudential. . . .*

(The announcement appears to exceed identification-only purpose of
permissible underwriting acknowledgements through references that imply
sponsor provides exemplary service.)

[February 14, 1998]{.underline}

[Clayton\'s Fine Dry Cleaning]{.underline}

Clayton\'s Fine Dry Cleaning is proud to sponsor USI basketball.
*Clayton\'s offers free pick-up or delivery at one\'s home or office,
the Indiana Department of Environmental Management has named Clayton\'s
a five-star designee as a certified master dry cleaner.* With locations
in Evansville, Newburgh, Booneville, and Mt. Vernon, Clayton\'s offers
sewing and repair as well as drive-thru car service. That\'s Clayton\'s
Fine Dry Cleaning and USI Basketball.

(The highlighted segment appears to promote underwriter through
references that contain comparative, qualitative and descriptive
language, in addition to prohibited price information and an inducement
to use dry cleaners.)

[Raben Tires]{.underline}

Raben Tires has been serving the tri-state\'s tire and automotive
service needs since 1952. Raben Tires carries Goodyear, Michelin, and
Dayton and offers complete car care. *Raven\'s certified auto services
guaranteed nation-wide and many of Raben\'s technicians are ASE
certified, which means automotive service excellence. Raben\'s
technicians work with state-of-the-art diagnostic equipment and attend
training schools to stay abreast the latest auto service innovations.*
Raben Tires would like to thank the tri-state for 45 good years. *See
your friends at any of the ten* *convenient* tri-state Raben Tires
locations.

(The highlighted segments appear to promote underwriter through
references that contain impermissible comparative, qualitative and
descriptive language. In addition, use of the term \"guaranteed\"
appears to constitute inducement to patronize underwriter\'s business.)

[Old National Bank]{.underline}

It\'s the people who make a difference in your community. *And in your
community bank. I\'m Mike Hanton, president of Old National Bank,
providing you with the latest in financial services, from people with
old-fashioned know-how is a way of life for us at Old National*. Because
being your bank for life is more than just a good days work, it\'s our
life\'s work. Here\'s to life, from your bank for life, Old National.

(The highlighted segment appears to promote underwriter through
references that contain impermissible comparative, qualitative and
descriptive language.)

[Prudential]{.underline}

*There are lots of ways you can make money with a quarter. You can put
it in a bank, and over the next 30 years, with compounded interest, your
quarter could earn \$1.78. You might invest it in the stock market, or
you can invest a quarter and change your whole financial future. For a
mere quarter you could be on the road to financial security. With money
for the kid\'s education and a weekend home in the country. Where can
you get such a return on 25 cents? By using it to call your Prudential
representative. Someone who can start you on the way to a secure future.
From life insurance to annuities, Prudential\'s financial products can
provide you with tax-deferred growth. Representing Prudential in Posen
and Vanderburgh counties is John Willis. He can help one find solutions
in tune with one\'s insurance and financial security needs.* One can
call John at. . . .

(The highlighted segment appears replete with references promoting the
underwriter through impermissible comparison to business competitors,
and that otherwise invite business patronage.)

[Shaffer Tours]{.underline}

*March and April are busy months from Motorcoach Tours at Shaffer Tours
on Evansville, as basketball, baseball, and hockey take center stage.
It\'s hockey on March 7th as the St. Louis Blues play host to the Dallas
Stars. Then on March 8th its time for the NBA with the Indiana Pacers
and Coach Larry Bird matching up against his old team, the Boston
Celtics in Indianapolis. For those looking for an early taste of
baseball, the week of March 7th its off to spring training in Orlando
complete with seven games and sightseeing. That\'s Shaffer Motorcoach
tours at. . . .*

(The highlighted segment appears to promote underwriter through
references that impermissibly call listeners to action.)

[^1]:     ^?^In this response, you requested a 30-day extension,
    indicating that, during the summer months, the station had no
    procedure in place to respond to Commission correspondence in a
    timely manner.

[^2]:     ^?^ You further argue that the \"menu listing\" of the
    qualifications of a sponsor\'s personnel is acceptable where, as
    here, the statements contained in the announcement are factually
    true.

[^3]:     ^?^ On page 4 of the [Public Notice]{.underline}, the
    Commission stated that \"announcements containing an inducement to
    buy, sell, rent or lease are not permissible. Examples of such
    announcements are : \'*six months\' free service*.\'\" (Emphasis
    added.)

[^4]:     ^?^ These concerns are compounded by the reason you provided
    for the lateness of your response to our initial query.
    Specifically, you explain that this delay was \"due to a school
    corporation policy of keeping all mail that is sent to all of the
    schools in the corporation in the central administration office
    until the week before school starts.\" While we recognize that
    certain educational broadcast licensees choose to operate their
    stations on a limited, school-year based schedule, they must
    nevertheless remain able to respond to Commission correspondence
    throughout the year, consistent with the specific requirements of
    Section 73.1015 of the Commission\'s Rules. While we do not believe
    that your failure to respond timely to our initial correspondence
    warrants the imposition of a further sanction, we advise that you
    take steps to correct the station\'s practices in this area
    immediately.