**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | EB-01-IH-0003-KMS            |
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| **R. J.' S LATE NIGHT            | ) | Facility #54428              |
| ENTERTAINMENT**                  | * |                              |
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| **CORPORATION**                  |   |                              |
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| Licensee of Noncommercial        | * |                              |
| Educational Station WHPR-FM,     | ) |                              |
| Highland Park, Michigan          | * |                              |
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######### MEMORANDUM OPINION AND ORDER

**Adopted: June 13, 2001 Released: June 14, 2001**

By the Chief, Enforcement Bureau:

**I. Introduction**

1\. In this Order, we admonish R. J.' s Late Night Entertainment
Corporation ("Late Night"), licensee of noncommercial educational
station WHPR-FM, Highland Park, Michigan, for broadcasting
advertisements in violation of Section 399B of the Communications Act of
1934, as amended ("the Act"), 47 U.S.C. §399b, and Section 73.503 of the
Commission\'s rules, 47 C.F.R. §73.503.[^1] Late Night responded to our
January 19, 2001, inquiry by submission dated February 8, 2001. We have
carefully reviewed the record, including Late Night's response, and
conclude that the licensee has violated the pertinent statutory and
Commission underwriting rule provisions. While we believe that no
monetary sanction is warranted at this time, we find that an
admonishment is necessary to redress the statutory and rule violations.
Moreover, we believe that it is appropriate to specifically advise Late
Night of our concerns so that rule compliance may be fully achieved.

**II. Background**

2\. 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(a). As noted above, noncommercial educational stations may not
broadcast advertisements. Although contributors of funds to
noncommercial 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 business.

3\. The Commission noted that it may be difficult at times for licensees
to distinguish between language that promotes versus that which merely
identifies the underwriter, but expects that licensees exercise
"reasonable, good faith judgment" in this area. [See]{.underline}
[Xavier University]{.underline}, 5 FCC Rcd 4920 (1990); [Public
Notice]{.underline}, \"In the Matter of the Commission Policy Concerning
the Noncommercial Nature of Educational Broadcasting Stations,\" (April
11, 1986), *republished,* 7 FCC Rcd 827 (1992). As the Commission made
clear in [Xavier]{.underline}, it will not deem announcements
impermissible where the "language at issue . . . is not clearly
promotional as opposed to identifying and . . . the licensee exercised
reasonable, good-faith judgment regarding the language. . . ."

**III. Discussion**

4\. The key facts in this case are not in dispute. Late Night does not
deny that the station broadcast the sponsored announcements described in
our letter of inquiry and set forth in the attached transcript. Late
Night also admits that "5 of the 6 announcements"[^2] appear to exceed
what is permissible under Section 399B of the Act , and the pertinent
Commission policies and rules, "because these acknowledgments go beyond
pure identification and are arguably promotional in nature." However,
Late Night argues that the "inappropriate nature" of the announcements
subject to our January 19, 2001, inquiry is "very different from the
inappropriate nature" of those subject to our earlier inquiry.[^3]
Therefore, Late Night contends that the station's broadcast of the later
announcements does not undermine the veracity of its November 24, 2000,
representation to the Commission that the station's underwriting
announcement practices have been remedied.

5\. Regarding the issue of penalty, Late Night argues that the
Commission should not impose a sanction for several reasons. In this
regard, it asks that we take into account the fact that the station
received no direct remuneration for broadcast of the announcements
contained in the programming donated by "The Thomas Pope Show" and
Dudley Broadcasting Network, Inc. ("DBN"). Further, Late Night asks that
we consider the fact that it made a good-faith effort to comply with our
rules after our earlier inquiry letter, but that during "the remedial
process commenced in November \[2000\]," it did not fully grasp the
thorough manner in which such announcements must be scrutinized in order
to ensure rule compliance. As a result of a recent station policy
change, Late Night claims that the station has "formally established a
3-member screening team" to ensure that the content of future
underwriting announcements is acceptable and compliant with the
Commission's pertinent rules and policies.

6\. We agree that a monetary sanction is not necessary to redress the
statutory and rule violations at issue. This disposition is based upon
the fact that Late Night appears to have taken further significant steps
to ensure compliance with our underwriting rules. However, certain
aspects of Late Night's response warrant further examination.

7\. Specifically, we caution Late Night to observe that, even in those
instances where noncommercial licensees do not receive direct payment
from for-profit sponsors, "consideration" that renders the broadcast of
such underwriters' promotional announcements inappropriate may
nonetheless be present. In this connection, "remuneration" and
"consideration" have been construed to include various forms. [See,
e.g.,]{.underline} [Fuqua Communications, Inc.]{.underline}, 30 FCC 2d
94, 97 (1971); [Window to the World Communications, Inc.]{.underline},
12 FCC Rcd 20239, 20241 (MMB 1997), *affirmed in part, modified in
part*, 15 FCC Rcd 10025 (EB 2000). In the instant case, Late Night
indicates that the live-feed of "The Tom Pope Show," received from DBN,
contained the prohibited announcements, and that DBN supplied the
program to its station free of charge. Thus, the program itself appears
to have been the "consideration" supporting the prohibited
announcements' broadcast. Consequently, in the future, Late Night should
observe that underwriting announcements accepted through a "live-feed"
from a network programmer also warrant similar textual scrutiny to those
produced by the station itself. [Id]{.underline}.

8\. Finally, contrary to Late Night's explanation, the text of at least
one of the current announcements undercuts its earlier claim of
good-faith rule compliance efforts. In this regard, we note that the
station's own internal policy guide entitled "Rules and Regulations WHPR
88.1 FM Sponsored Programming," submitted to the Commission in its
November 24, 2000, response, contains as its first underwriting
announcement instruction the admonition that "\[t\]here cannot be any
mention of sale prices, percentages, discounts, or bargains when
advertising sponsors." Despite the station's internal policy, it
thereafter repeatedly broadcast a State Farm Insurance announcement that
conveyed, in addition to its comparative and qualitative message,
obviously prohibited price information.[^4] As Late Night was admittedly
aware by virtue of its own submission, prohibited price information
includes not only specific price information, but also sponsor discounts
and products or services offered by the sponsor at no cost or "free."
[See Xavier, supra.]{.underline} We caution Late Night to ensure in the
future not only that it has appropriate written policies in place but
also that station management and other relevant employees fully
understand and consistently apply the policies.

**IV. Ordering Clauses**

9\. In view of the foregoing, we conclude that a sanction is
appropriate. Accordingly, IT IS ORDERED that R. J.'s Late Night
Entertainment Corporation, licensee of noncommercial educational station
WHPR-FM, Highland Park, Michigan, IS ADMONISHED for broadcasting
advertisements in violation of Section 399B of the Act, 47 U.S.C. §399B,
and Section 73.503 of the Commission\'s rules, 47 C.F.R. §73.503.

10\. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and
Order shall be sent, by Certified Mail \-- Return Receipt Requested, to
Rosalind M. Parker, Esq., Counsel for R. J.'s Late Night Entertainment
Corporation, 1140 Connecticut Avenue, N.W., Suite 1142, Washington, D.C.
20036.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

Attachment

######### ATTACHMENT

The following text was taken from a recording of announcements aired by
noncommercial educational station WHPR-FM during the month of December
2000.

1\. [State Farm Insurance]{.underline} (35 seconds)

Today it seems everybody is offering a discount in car insurance. But at
what price? Reduced protection and personal service? At State Farm, you
can earn discounts and still get full service and dependable protection.
See State Farm Agent George Warden in Southfield, for the State Farm
Multiple Lines Discount. With State Farm, you get an agent you can
depend on. See Sate Farm Agent George Warden at 24361 Greenfield or call
248-569-8555.

2\. [Aknartoons Fine Foods Eatery]{.underline} (60 seconds)

Aknartoons Fine Foods Eatery has the dinners you will always enjoy.
Aknartoons is located at 10300 Woodward Avenue at Calvert. Open seven
days a week from 11:00 a.m. until 12:00 Midnight. Come in and try our
dinners, excellent sides and delicious desserts. To order by phone, call
867-3102. That's 867-3102. Aknartoons Fine Foods Eatery, located at
10300 Woodward Avenue at Calvert. Aknartoons has something special for
you every Thursday and Friday between the hours of 6:00 p.m. and 8:00
p.m. At Aknartoons, there's live entertainment with a band. Every
Thursday and Friday from 6:00 p.m. until 8:00 p.m. Make sure you stop by
to enjoy good food, good music and good friends at Aknartoons.
Aknartoons Fine Foods Eatery.

3\. [Glory Foods]{.underline} (60 seconds; contained in live-feed from
"The Thomas Pope Show")

\[Lyrics sung to musical score\]:

When you're in the mood for some home-cooked food with that real good,
feel-good, down-home taste, make it easy on yourself --Get Glory Foods!
Glory Foods \-- Just about the best!

Help yourself to some soulful greens; complement well with candy sweets.

Top off that spread with delicious cornbread.

And you're talkin' about real good eatin'. . . .

Female Voice: "This year add to the ummm ummm ummm goodness of your
holiday turkey or ham or just about any main dish with Glory Foods. From
seasoned greens to black-eyed peas, Glory Foods are easy to prepare. So
you spend more time with your family. Of course, nothing can replace the
tastes your family's come home to for years, but Glory Foods is just
about the best!"

\[Lyrics sung to musical score\]:

When you're in the mood for some home-cooked food with that real good,
feel-good, down-home taste, make it easy on yourself --Get Glory Foods!
Glory Foods \-- Just about the best!

Narrator: Available at your local supermarket.

4\. [Wittnauer Watches]{.underline} (60 seconds; contained in live-feed
from "The Thomas Pope Show")

\[Announcement spoken over musical background.\]

Male Voice: "I hear you're looking for a watch."

Female Voice: "I want a Wittnauer."

Male Voice: "Of course you want a watch with great looks."

Female Voice: "I want a Wittnauer."

Male Voice: "May I show you another. . . .?"

Female Voice: "I want a Wittnauer."

Male Voice: "Over here we have an entire showcase filled with. . . . ."

Female Voice: "I want a Wittnauer."

Narrator: "Wittnauer Watches. Whether you want to dress up or dress
down. Wittnauer Watch style is just what you want. Wittnauer Watches
with Swiss Quartz accuracy."

Male Voice: "Ma'am, is there any. . . ."

Female Voice: "I want a Wittnauer."

Male Voice: "I know; I know. . . ."

Chorus: "I want a Wittnauer."

Narrator: "You want the right watch, you want a Wittnauer. Wittnauer
Watches, products of Wittnauer International."

Female Voice: "I want a Wittnauer!"

Narrator: " Wittnauer Watches. Fine jewelry, of course."

Company Spokesman: "Hi, I'm Charles D. Watkins, Vice Chairman of The
Wittnauer Watch Company. Please call this toll-free number for the
authorized Wittnauer Jeweler nearest you, at 1-888-367-9488 or
1-888-FORWITT."

5\. [Rosemond Chiropractic]{.underline} (75 seconds; contained in
live-feed from "The Thomas Pope Show")

Pain is you body's way of saying something is wrong. Early history
speaks of the relief of "the laying on of hands." Today this technique
is manifest in the field of chiropractic. Dr. Luther P. Rosemond is the
modern-day drugless physician. If you are experiencing pain as the
result of a personal injury, auto accident, or job-related injury, let
Dr. Rosemond show you how chiropractic techniques can restore and
maintain your good health without the use of mind-dulling drugs. Dr.
Luther P. Rosemond will teach you how to use your body's natural
maintenance system to keep it functioning in peak condition. And if you
really want to give your stress a rest, contact Barbara Rosemond, a
licensed massage-therapist, for relaxing and therapeutic massage. Call
313-837-9355, that's 313-837-WELL. Dr. Rosemond is located at 17701
Schoolcraft. . . .

[^1]: Our January 19, 2001, inquiry followed an earlier December 4,
    2000, letter cautioning Late Night to comply with the pertinent
    Commission rules and policies regarding noncommercial underwriting
    messages.

[^2]: Late Night claims that The Cotillion Club Banquet Center is a
    not-for-profit entity and that it is therefore permissible for a
    noncommercial station to broadcast promotional underwriting
    announcements on its behalf. We agree.

[^3]: Late Night refers to our letter of inquiry dated November 6, 2000.

[^4]: The text of that announcement reads as follows: "Today it seems
    everybody is offering a discount in car insurance. But at what
    price? Reduced protection and personal service? At State Farm, you
    can earn discounts and still get full service and dependable
    protection. . . ."