**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | EB-00-IH-0414                |
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| **ISOTHERMAL COMMUNITY**         | ) | EB-00-IH-0504                |
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| **COLLEGE**                      | * | Facility #29262              |
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| Licensee of Noncommercial        | * |                              |
| Educational Station WNCW(FM),    | * |                              |
| Spindale, North Carolina         | ) |                              |
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######### MEMORANDUM OPINION AND ORDER

**Adopted: December 5, 2001 Released: December 6, 2001**

By the Chief, Enforcement Bureau:

**I. Introduction**

1\. In this Order, we admonish Isothermal Community College
("Isothermal"), licensee of noncommercial educational station WNCW(FM),
Spindale, North Carolina, 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, and for failing to properly maintain its public file
in violation of Section 73.3527 of the Commission's rules, 47 C.F.R.
§73.3527.

2\. We have carefully reviewed the record, including the complaints and
Isothermal's responses, and conclude that the licensee has violated the
pertinent statutory and Commission underwriting rule provisions, as well
as the public file rule. 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 Isothermal of our concerns so that
rule compliance may be fully achieved.

**II. Background**

3\. In response to an initial complaint filed December 12, 2000, by
station listener Bill Bost, we investigated Isothermal's broadcast of
announcements regarding "The WNCW Mountain Oasis Music Festival," a
local concert event which was conducted by a for-profit enterprise, A.C.
Entertainment of Knoxville ("ACE"), as well as questions concerning the
station's maintenance of its public file.[^1] Isothermal responded to
our January 26, 2001, and March 30, 2001, inquiries by submissions dated
February 15, 2001 and April 19, 2001. After having received a further
public file complaint submitted August 15, 2001, by Ted Bost, we
inquired by letter of August 20, 2001, to which Isothermal responded by
letter dated September 6, 2001.

**III. Discussion**

4\. *Underwriting Announcements*. 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); 47 C.F.R. §73.503. 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. 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 Xavier University*, 5 FCC Rcd 4920 (1990);
*Public Notice*, \"In the Matter of the Commission Policy Concerning the
Noncommercial Nature of Educational Broadcasting Stations,\" (April 11,
1986), *republished,* 7 FCC Rcd 827 (1992).

5\. As noted above, under Section 399B of the Act, noncommercial
broadcasters are generally prohibited from broadcasting messages that
promote the products, services or businesses of for‑profit entities, if
made in exchange for remuneration. However, where \"economic
consideration\" is not the basis for the broadcast of particular
announcements, noncommercial stations may broadcast messages promoting
local \"transitory events,\" such as movies, plays, concerts, etc.,
including ticket prices and information, so that listeners may be
informed as to local happenings. In this case, complainant Bill Bost
claims that the station broadcast announcements in October, 2000,
promoting a for-profit concert event, "The WNCW Mountain Oasis Music
Festival," transcripts of which are attached. Mr. Bost contends that the
music festival was not the station's own event, but was jointly
sponsored with ACE, and thus served to impermissibly benefit a
for-profit entity.

6\. Isothermal does not deny that it broadcast the announcements in
question, but argues that their broadcast did not violate Section 399B
of the Act. In this regard, the licensee contends that the announcements
were aired to publicize "The WNCW Mountain Oasis Music Festival"
consistent with its discretion under Commission precedent to promote
local "transitory events" in the station's community. Isothermal
represents that ACE produced the festival and realized all of its
financial proceeds, and that the station lent its name, or "sponsored"
the festival, and received event tickets and publicity in exchange for
that and for airing promotional announcements.[^2] Isothermal argues
that the announcements were permissible because the event tickets it
received did not constitute cognizable remuneration and because it did
not receive any of the proceeds resulting from the music festival.
Isothermal describes ACE as a "long-time supporter" of the station, and
emphasizes that ACE's "role as an underwriter was entirely separate and
apart from its role as a producer" of the music festival. Isothermal
claims that the purpose for its "sponsorship and promotion of the WNCW
Festival was the ability to promote the value of membership in Station
WNCW and to encourage listeners to become members," and is consistent
with the type of "creative fundraising" encouraged by the Commission in
*Chicago Educational Television Association (WTTW(TV))* (MMB October 23,
1995).

7\. We reject Isothermal's contention that the broadcast of the instant
announcements was consistent with the Commission's "transitory event"
exception. In the *Memorandum Opinion and Order*, "In the Matter of
Commission Policy Concerning the Noncommercial Nature of Educational
Broadcast Stations," 90 FCC 2d 895, 911 (1982), the Commission
specifically warned licensees that "a public broadcaster's decision to
promote third parties must be based on public-spirited determinations
rather than economic considerations." In this case, the licensee admits
that it received "event tickets" in specific exchange for broadcasting
announcements promoting a music festival that directly benefited ACE, a
for-profit entity, and that they were not given as general underwriting
support.[^3]

8\. Isothermal seems also to imply that the tickets were not
"consideration received" by the station because they were thereafter
used as donor premiums or listener giveaway prizes and not retained.
However, it ignores that "remuneration" and "consideration" have been
construed to include various forms. *See, e.g., Fuqua Communications,
Inc.*, 30 FCC 2d 94, 97 (1971) (consideration may be found where
"trade-out" or barter are exchanged); *Window to the World
Communications, Inc.*, 12 FCC Rcd 20239, 20241 (MMB 1997), *affirmed in
part, modified in part*, 15 FCC Rcd 10025 (EB 2000) (consideration may
be found where the programming itself is provided freely or at reduced
cost). Thus, to the extent that Isothermal argues that it received no
remuneration for broadcasting the music festival announcements, its
acceptance of event tickets that were later used as promotional
giveaways and donor premiums belies that claim.

9\. Moreover, even if Isothermal had not received tangible consideration
in the form of event tickets from ACE in exchange for making the
broadcast announcements in which that business was promoted, we could
not ignore that the announcements themselves appeared to support the
station's self-interest by identifying the event as the "The WNCW
Mountain Oasis Music Festival." Thus, the station clearly anticipated
increased membership, and enhanced economic benefit, as a result of its
broadcast promotion of the music festival directly benefiting a
for-profit entity, ACE. Consistent with the *Memorandum Opinion and
Order, supra*, we do not believe that the "transitory event" exception
was intended to apply to announcements of this type, made out of a
station's self-interest rather than its "public-spirited determination."
*See also Letter of the Chief, Investigations and Hearings Division to
University of Massachusetts (WFCR(FM))* (February 29, 2000).

10\. Finally, we strongly disagree with Isothermal's reliance on
*Chicago Educational Television Association (WTTW(TV))*, *supra*, to
justify the promotional underwriting announcements in this case. In
*Chicago*, the Mass Media Bureau criticized, but declined to punish, the
conduct of a joint-fundraising arrangement where the noncommercial
station split its fundraising proceeds with other area not-for-profit
institutions. As noted above, in this case the licensee's promotion of
the music festival at issue directly benefited ACE, a for-profit entity,
and the harm caused to the noncommercial service was far more tangible.
Consequently, we find that Isothermal violated Section 399B of the Act
through airing the announcements in question.

11\. *Public Inspection File*. In his December 12^th^ complaint, Bill
Bost further alleged that the licensee withheld certain documents he
requested that relate to the station's promotion of "The Mountain Oasis
Music Festival," discussed above, and that it suddenly raised the
documents' copying cost without justification, in order to discourage
his investigation. Bill Bost claims that, during his October 3, 2000,
visit, the station's public file lacked specific documents that are
required to be contained therein pursuant to Subsections 73.3527 (e)(4),
(5), (6), (9), and (10). In his August 15^th^ complaint, Ted Bost
alleged that on August 10, 2001, WNCW(FM) staffers unreasonably delayed
his access to the station's public file.[^4] In sum, Messrs. Bost charge
that Isothermal violated Section 73.3527 of the Commission's rules, and
should be sanctioned accordingly.

12\. In its February 15^th^ and April 19^th^ responses, Isothermal
admits only that it failed to include materials in its public file
relating to its quarterly issues/programs and donors lists, as required
by Subsections 73.3527(e)(8) and (9) of the Commission's rules, but
avers that it has since taken remedial action. The licensee denies,
however, Bill Bost's allegation that it overcharged him for copying
services or that it discouraged his investigation. Isothermal explains
that the extensive nature of Bill Bost's document production request,
which appears to have sought material beyond the scope of the station's
public file rule,[^5] required it to hire additional clerical help and
raise its per page copying fee from 10 to 25 cents. Moreover, in its
response to our subsequent August 30^th^ inquiry, Isothermal denies that
it improperly delayed access to Ted Bost when he requested to inspect
the public file on August 10, 2001. The licensee claims that due to Mr.
Bost's earlier threats of litigation and apparent antagonism toward the
staff, the station's managers feared that a safety issue might arise
during his visit. Isothermal represents that the station's staff thus
delayed Mr. Bost's access to the public file approximately ten minutes
while it sought assistance from the university's legal counsel and
security department to monitor the visit. Isothermal argues that, given
the full circumstances of Mr. Bost's visit, such delay was not
unreasonable and was consistent with the intent of Section 73.3527 of
the Commission's rules.

13\. Section 73.3527(a) of the Commission\'s rules requires
noncommercial broadcast licensees to maintain a public file containing
specific types of information related to station operations.[^6] The
purpose of this requirement is to provide the public with timely
information at regular intervals throughout the license period, so that
concerned individuals or groups may participate effectively in
Commission proceedings concerning a broadcast licensee, including the
evaluation of its performance. *See, e.g., Liability of KLDT-TV 55,
Inc.*, 8 FCC Rcd 6316 (1993) *forfeiture reduced*, 10 FCC Rcd 3198
(1995). The file must be available to the public at any time during the
licensee's regular business hours. *Id.; Public Notice,* \"Availability
of Locally Maintained Records for Inspection by Members of the Public,\"
13 FCC Rcd 17959 (1998), *citing WBRN, Inc.*, 32 FCC 2d 729 (1971);
*Morton L. Berfield, Esq.*, 71 RR 2d 142 (FOB 1992) (the file must be
*immediately* available for inspection by members of the public, not
through appointments or at times most convenient to the licensee).
Moreover, Section 73.3527(c) of the Commission's rules requires that
requests for copies of documents required to be kept in the station's
public file be fulfilled by the licensee at a reasonable cost and within
a reasonable period of time, [i.e.]{.underline}, not more than seven
days.

14\. Isothermal admits that its station's public file was deficient at
the time of our January 26^th^ inquiry with respect to its quarterly
issues/programs and donors lists, contrary to the requirements of
Subsections 73.3527(e)(8) and (9) of the Commission's rules. The
licensee avers that it has since taken remedial action, and denies the
complainants' allegations that the public file was deficient in other
respects. In its response to our query, Isothermal provides information
indicating that the materials required by the rule's other subsections
are, in fact, included in its public file and are current. We note that
the complainants have not provided any probative evidence to rebut the
licensee's account concerning that showing. Moreover, we accept
Isothermal's explanation that it raised its copying fees reasonably in
order to recoup its overall copying costs, including clerical expense,
in a manner consistent with the Commission's public file rule.

15\. Finally, while it is a matter of concern when we receive a
complaint that a licensee has delayed in responding to a request to view
its station's public file, we recognize that noncommercial licensees
that are also educational institutions have legitimate security
considerations which may require them to take precautionary steps that
delay their visitors access to the stations' files. *See Letter from the
Chief, Investigations and Hearings Division, to Carmel/Clay School
Corporation (WHJE(FM))* (March 15, 2001). In this case, Ted Bost's delay
was fairly insubstantial, less than half and hour, and was apparently
caused by the licensee's apprehension that security precautions were
necessary. We have no reason to question the licensee's judgment
regarding that concern. Consequently, we find that Isothermal violated
Section 73.3527(e) (8) and (9) of the Commission's rules only and find
no merit to the complainants' further allegations concerning this issue.

16\. In view of the foregoing, we find that Isothermal violated Section
399B of the Act, and Sections 73.503 and 73.3527 of the Commission's
rules, respectively, by broadcasting announcements promoting a
for-profit entity and for failing to maintain the station's public file.
In light of the station's otherwise unblemished prior enforcement
record, however, we find that a monetary sanction is not warranted to
redress this rule violation. [See]{.underline} Note to Section 1.80
(b)(4) of the Commission's rules.[^7] Instead, we believe that an
admonishment is appropriate under the circumstances of this case.

**IV. Ordering Clauses**

17\. In view of the foregoing, we conclude that a sanction is
appropriate. Accordingly, IT IS ORDERED that Isothermal Community
College, licensee of noncommercial educational station WNCW(FM),
Spindale, North Carolina, IS ADMONISHED for broadcasting advertisements
in violation of Section 399B of the Act, 47 U.S.C. §399B, and Sections
73.503 and for failing to maintain properly its station's public file in
violation of 73.3527 of the Commission\'s rules, 47 C.F.R. §§73.503 and
73.3527.

18\. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and
Order shall be sent, by Certified Mail \-- Return Receipt Requested, to
Robert Woods, Esq. and Steven C. Schaffer, Esq., of Schwartz, Woods &
Miller, Counsel for Isothermal Community College, 1350 Connecticut
Avenue, N.W., Suite 300, Washington, D.C. 20036-1717.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

Attachment

Promo \# I

Between the traffic, the shopping malls and the bad music videos does it
ever feel like we\'re all just:

\[MUSIC - Living in the wasteland of the free\]

Maybe we all just need:

\[MUSIC - more love\]

And better music. WNCW\'s Mountain Oasis Music Festival is-an escape
from the ordinary with performances from Bela Fleck, Iris DeMent, Tim
O\'Brien and Darrell Scott, Leftover Salmon, Corey Harris, Robert Earl
Keen, Southern Culture on the Skids, Peter Rowan and Tony Rice, John
Cowan and many more including a second lakeside stage. The Weekend of
October 6th, 7th, and 8th, it\'s the WNCW Mountain Oasis Music Festival
at Deerfields near Hendersonville, North Carolina. Camping is also
available and tickets are on sale now at 877-995-9961 and at
concertwire.com. WNCW celebrating live music with the people who love
it.

\[MUSIC - Way up on the hill where they do the boogie, do the boogie, do
the boogie, oh I wonder what they do when they do the boogie \... do do
do do do do \]

PROMO- Friday

WNCW\'s Mountain Oasis Music Festival will feature three days of the
music you heir and love on your favorite public radio station. The
Festival will take place Friday, Saturday, and Sunday, October 6th, 7th
, and 8th at Deerfields near Hendersonville, North Carolina. Friday\'s
lineup begins at 7 pm with the Donna the Buffalo, followed by David
Gans, host of the Grateful Dead Hour, and finishes up with the Dark Star
Orchestra. Wireless support and accessibility provided by Verizon
Wireless. Visit our website at WNCW.org for more information or visit
concertwire.com for tickets to WNCW\'s Mountain Oasis Music Festival.

PROMO - Saturday

WNCW\'s Mountain Oasis Music Festival will feature three days of the
music you hear and love on your favorite public radio station. The
festival will take place Friday, Saturday and Sunday, October 6\'t, 7th
and 8th at Deerfields near Hendersonville, North Carolina. Saturday\'s
line-up begins with Tim O\'Brien and Darrell Scott, Iris DeMent, Corey
Harris and Dan Hicks and the Hot Licks. The music continues into the
evening with Southern Culture on the Skids, Robert Earl Keen, Leftover
Salmon and Bela Fleck and the Flecktones. Visit our website at WNCW.org
for more information or visit concertwire.com for tickets to WNCW\'s
Mountain Oasis Music Festival.

[^1]: On September 18, 2001, Bill Bost further alleged that the licensee
    wrongfully denied his station listener membership renewal in
    reprisal for his complaint to the FCC. Their dispute on this point
    appears to be a private matter. As such, Mr. Bost's later complaint
    does not raise issues within the scope of the licensee's public
    interest obligations, and we will not address it.

[^2]: *See* Isothermal's April 19, 2001 and February 15, 2001, responses
    to the staff's letters of inquiry dated March 30, 2001 and January
    26, 2001, respectively.

[^3]: In its February 15, 2001, response, Isothermal indicates that in
    exchange for its agreement to air the announcements promoting the
    event:

    > "\[t\]he station received a donation of event tickets for its fall
    > fund drive (as it had for previous fund-raising events). These
    > tickets were used as station premiums for fund-raising and as
    > give-away items for self-promotion purposes . . . . Announcements
    > for the event were included in WNCW's community concert calendar,
    > a determination made solely by the station."

[^4]: In his September 26^th^ reply, Ted Bost indicated that he was
    "delayed 24 minutes" in his attempt to view the public file on
    August 10^th^. Although his complaint suggests he was delayed or
    denied access to the station's public file on July 2^nd^, in his
    reply he also acknowledged that he did not actually request to view
    the file at that earlier time. Mr. Bost indicates that he instead
    used that visit to seek financial records pertaining to his state
    FOIA request.

[^5]: According to the licensee, pursuant to a North Carolina state
    Freedom of Information Act ("FOIA") request, Ted Bost also sought
    non-FCC regulated information relating to the station's operations,
    including current and prior year invoices and employee expense
    reports.

[^6]: ^    ?^ Among the items that are required to be contained in the
    public file are: copies of all current FCC authorizations and
    modifications thereto (47 C.F.R. § 73.3527(e)(1)); copies of the
    station\'s FCC applications (47 C.F.R. § 73.3527(e)(2)); the
    station's contour maps (47 C.F.R. § 73.3527(e)(3)); the station\'s
    annual ownership reports and related materials (47 C.F.R. §
    73.3527(e)(4)); such records as are required to be kept concerning
    broadcasts by candidates for public office (47 C.F.R. §
    73.3527(e)(5)); a copy of the manual entitled "The Public and
    Broadcasting" (47 C.F.R. § 73.3527(e)(7)); a quarterly list of
    programs that have provided the station\'s most significant
    treatment of community issues (47 C.F.R. § 73.3527(e)(8)); a list of
    donors supporting specific programs (47 C.F.R. § 73.3527(e)(9)); a
    statement certifying that required local public notice announcements
    were made at the time of both the pre-filing and post-filing of the
    license renewal application, and the text of such announcements (47
    C.F.R. § 73.3527(e)(10)); material having a substantial bearing on a
    matter which is the subject of an FCC investigation or complaint to
    the FCC about which the licensee has been advised (47 C.F.R. §
    73.3527(e)(11)); and, where applicable, "must-carry" requests (47
    C.F.R. § 73.3527(e)(12)).

[^7]: ^?^ 47 C.F.R.§ 1.80(b)(4).