**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | EB-01-IH-0332-KMS            |
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| **TRI-STATE INSPIRATIONAL**      | ) | Facility #67799              |
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| **BROADCASTING CORPORATION**     | * |                              |
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| Licensee of Noncommercial        | * |                              |
| Educational Station WFIX(FM),    | * |                              |
| Florence, Alabama                | ) |                              |
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######### MEMORANDUM OPINION AND ORDER

**Adopted: September 17, 2001 Released: September 18, 2001**

By the Chief, Enforcement Bureau:

**I. Introduction**

1\. In this Order, we admonish Tri-State Inspirational Broadcasting
Corporation ("Tri-State"), licensee of noncommercial educational station
WFIX(FM), Florence, Alabama, 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. Tri-State responded to our May 16, 2001, and
June 13, 2001, inquiries by submission dated June 25, 2001. We have
carefully reviewed the record, including Tri-State'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
Tri-State 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 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). As the Commission made clear in *Xavier*, 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. Tri-State does not
deny that the station broadcast the sponsored announcements described in
our letter of inquiry and set forth in the attached transcript.
Tri-State argues, however, that the announcements comply with Section
399B of the Act , and the pertinent Commission policies and rules,
noting that "at the time \[of their broadcast\] we felt we were well
within our bounds, and that our announcements were fully permissible."
Tri-State admits, however, that its management is relatively
inexperienced in noncommercial broadcast and that it has found
interpreting the Commission's underwriting announcement policy to be
difficult, often requiring it to consult with other more seasoned
noncommercial broadcasters. Since taking control of the licensee's board
in September 2000, Tri-State's management contends that it has developed
"newly revised" control procedures aimed at ensuring Commission
underwriting rule compliance.

5\. We find that the subject underwriting announcements exceed the
bounds of what is permissible under Section 399B of the Act, and the
Commission's pertinent rules and policies, in light of the "good-faith"
discretion afforded licensees under *Xavier, supra*. Notwithstanding
this finding, we believe that a monetary sanction is not necessary to
redress the statutory and rule violations at issue. This disposition is
based to a significant degree upon the fact that Tri-State's board is
new and has taken steps to ensure compliance with our underwriting
rules. However, certain aspects of Tri-State's response warrant further
examination.

6\. Specifically, we caution Tri-State that references that distinguish
the underwriter from its competitors are prohibited. *See Public Notice,
supra*. Thus, the mention of a sponsoring retail jeweler's getting its
gemstones directly from the diamond cutter distinguishes the jeweler
from those who do not. Such references are thus promotional and should
be avoided.[^1] Similarly, the station's characterization of an
underwriter's inventory as "name-brand" seeks to cast its products in a
favorable light and is not value-neutral.[^2] *Id.* Also, underwriting
announcements may not make descriptive, qualitative references that
intend to induce patronage of their underwriters' businesses. *Id.*;
*see also In re WJTA(FM)*, 5 FCC Rcd 7106 (MMB 1990). Thus, Tri-State's
explanation that several of the station's announcements attempt to
"conjure up feelings that we could all identify with" essentially
reveals that their intent is to distinguish and promote their respective
underwriters' products or services in the minds of listeners.[^3]
Moreover, even where statements made about an underwriter are factually
true, they are not permissible if they are also promotional. *See Letter
from the Chief, Investigations and Hearings Division, Enforcement
Bureau, to Station KOUZ(FM)*, (July 12, 2000) (use of the phrase "ICAR
gold-class certification" to describe underwriter's service
qualifications was found impermissible). Thus, the station's references
to an underwriter's having "kept up with \[changing\] technology" or a
"new Sentricon Baiting System" are prohibited.[^4] Additionally, the
station's description of an underwriter's service as being "convenient"
is qualitative and prohibited.[^5] *See Letter from the Chief,
Investigations and Hearings Division, Enforcement Bureau, to Station
WLRY(FM)*, (April 5, 2000) (where description of underwriting pharmacy
as "provid\[ing\] the same service as the major chains without the long
wait" was found impermissible).

7\. Finally, we note that several of the announcements in question were
over 30 seconds in length. While the Commission has not adopted
quantitative limitations on announcements, it has noted that the longer
they take to identify their underwriters, the more likely they are to be
found promotional. *See In re WNYE-TV*, 7 FCC Rcd 6864, 6865 (MMB 1992).
In the instant case, it appears that the excessive length of several of
the announcements contribute to their overall promotional nature.

**IV. Ordering Clauses**

8\. In view of the foregoing, we conclude that a sanction is
appropriate. Accordingly, IT IS ORDERED that Tri-State Inspirational
Broadcasting Corporation, licensee of noncommercial educational station
WFIX(FM), Florence, Alabama, 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.

9\. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and
Order shall be sent, by Certified Mail \-- Return Receipt Requested, to
Tri-State Inspirational Broadcasting Corporation, 113 N. Seminary Road,
Florence, Alabama, 35630.

FEDERAL COMMUNICATIONS COMMISSION

> David H. Solomon

Chief, Enforcement Bureau

Attachment

######### ATTACHMENT

The following text was transcribed from audiotape recordings of
underwriting announcements broadcast on WFIX(FM), Florence, AL, during
the period October 2000 through March 2001:

1.  [Osborne's Jewelers]{.underline} (30 seconds).

The Antwerp diamond dealers usually deal only with America's largest
importers. At Osborne Jewelers, as a member of the IJO, they acquire
diamonds directly from the diamond cutter in Antwerp, eliminating the
importer and distributor. Antwerp means a diamond directly from the
diamond's source. Osborne Jewelers of Florence and Athens, with diamonds
directly from Antwerp. Osborne Jewelers, on Jefferson Street in Athens,
and Cox Creek Parkway in Florence.

2\. [The Sound Shoppe]{.underline} (30 seconds).

The Sound Shoppe in the Shoals-area has name-brand musical instruments
and sound equipment. Brand-name guitars like Gibson, Takoma, and a
brand-new truckload of Epiphones. Drums from Sonar and digital pianos,
amps, accessories and much, much more! Lessons available, too. Darrell
Trippet and the staff at the Sound Shop proudly service anything they
sell. The Sound Shoppe, Parkway Shopping Center, in Florence.

3\. [Osborne's Jewelers]{.underline} (45 seconds).

Our jewelers can tell that there's a problem before she ever says a
word. They see it all over her face. They instinctively know what the
problem is. A nice lady comes in, and has just had her
once-in-a-lifetime experience of being proposed to. She's very happy
about that although she's not thrilled by her engagement ring. The ring
she's going to wear for the rest of her life. Osborne's pleas with all
the guys out there \-- please don't let this be you! Osborne Jewelers
has diamond engagement rings that words cannot describe. Osborne
Jewelers on Jefferson Street in Athens, and now on Cox Creek Parkway.

4\. [Gilbert Furniture]{.underline} (30 seconds).

Don't you love meeting new, friendly faces in warm, friendly places?
Gilbert Furniture. Don't you love furnishing your home nice and cozy for
the holiday season? Gilbert Furniture. Don't you love solid-wood bedroom
suites by Orleans? And Chippendale dining-room suites? Everyone loves
Queen Anne living-room suites with matching lamps, curios, and end
tables. Gilbert Furniture. Gilbert Furniture has all of this, plus
leather, three-piece sets, five-piece small dinettes and much more!
Gilbert Furniture, next to Southern BBQ on Wilson Dam Road.

5\. [Cedar Gables]{.underline} (30 seconds).

Do you like Waterford Crystal, Linden Clocks, Fitz & Floyd, Arthur
Court, Seraphim Classics, Austin, and many others? Cedar Gables. Do you
like surprises? Like being able to buy a gift or decorative piece for
your home that you never dreamed would fit into your budget? Cedar
Gables. On the hill just outside of Killen off Highway 72. Where there
are many collectibles, gifts, and most importantly, pleasant surprises.

6\. [Osborne's Jewelers]{.underline} (45 seconds).

Because the first snow of the holiday season makes her pulse quicken and
her cheeks flush. Because she doesn't feel it's Christmas without a mile
of colored lights or the scent of pine mixing with gingerbread. Diamonds
for Christmas. Because she doesn't have the heart to tell a little boy
that Santa's helpers aren't truly elves, or a little girl that it forgot
to snow. Soon it will be Christmas morning, and all she's expecting is
trinkets under the tree. Diamonds: just because you love her. Osborne
Jewelers on Cox Creek Parkway in Florence, and in Athens on Jefferson
Street.

7\. [Chic-Fil-A]{.underline} (55 seconds).

Male Voice: "Hey honey, what are you doing?"

Female Voice: "I'm making a guest list for our party."

Male Voice: "Oh. Who's invited?"

Female Voice: "Well, I thought we'd ask the Johnsons."

Male Voice: "Arrrgh. The Johnsons!"

Female Voice: "The Burkes."

Male Voice: "Not the Burkes!"

Female Voice: "And the Smiths."

Male Voice: "Oh, great!"

Female Voice: "The Fitz-Hughs."

Male Voice: "What is this, a wake?"

Female Voice: "The Everetts."

Male Voice: "Hide the jewelry!"

Female Voice: "The Bakers."

Male Voice: "Make it stop!"

Female Voice: "And the Bovines."

Male Voice: "Really? *The* *Bovines*?"

Female Voice: "The Bovines."

Male Voice: "As in --'he smells like a barn and she chews with her mouth
wide open?' Those Bovines?"

Female Voice: "They're the ones."

Male Voice: "Are they bringing those Chic-Fil-A Party Platters with
them?"

Female Voice: "Yes, they are: chicken nuggets, chicken strips and even
chicken salad finger sandwiches."

Male Voice: "I got no beef with them."

Later at the Party:

Host's Voice: "Great party, huh?"

Guest's Voice: "M\--OOO!"

Narrator: "Party Trays from Chic-Fil-A. We didn't invent the chicken,
just the chicken sandwich."

8\. [Heil Heating and Cooling]{.underline} (30 seconds).

Offering heating and cooling products for over 100 years. Technology
changes rapidly and Heil Heating and Cooling has kept up with
technology! Their units, offering up to 13 CR means comfort and energy
efficiency for your home or office. The Heil Dealer nearest you is
listed in the Yellow Pages. Heil Heating and Cooling, supporters of the
New FIX 91.3.

9\. [Southern Services Pest Control]{.underline} (30 seconds).

So that nothing can cause damage to your valuable home or property,
Southern Services Pest Control offers service for all types of homes,
businesses, restaurants, hotels, churches, anywhere pests are a problem.
Southern Services Pest Control . . . features the new Sentricon Baiting
System that eliminates termite colonies. Call Southern Services Pest
Control to find out how they can help you with a free quote. Southern
Services Pest Control, at 764-3121 . . . .

10\. [Williams Cleaners]{.underline} (30 seconds).

There's a new name in the dry-cleaning industry in the Shoals --
Williams Cleaners. Mike Williams and his staff at Williams Cleaners
offers same-day service! With a convenient drive-through window. On
Avalon Avenue in Muscle Shoals, you don't even have to leave your car.
Williams Cleaners does laundry service, alterations, leather cleaning.
And don't forget: same-day service! When you need it fast, let Williams
Cleaners help you! Williams Cleaners, with two locations . . . .

[^1]: [See]{.underline} attached announcements for Osborne's Jewelers.

[^2]: [See]{.underline} attached announcement for The Sound Shoppe.

[^3]: [See]{.underline} attached announcements for Osborne's Jewelers,
    Gilbert Furniture, Cedar Gables, and Chic-Fil-A.

[^4]: [See]{.underline} attached announcements for Heil Heating and
    Cooling and Southern Services Pest Control.

[^5]: [See]{.underline} attached announcement for Williams Cleaners.