**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

**SOUTHERN RHODE ISLAND** ) File No. 99070036

**PUBLIC RADIO BROADCASTING, INC.** )

) NAL/Acct. No. x32080016

# Licensee, Noncommercial Educational Station WBLQ(FM) )

# Westerly, Rhode Island )

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

### Adopted: May 5, 2000 Released: May 9, 2000

By the Chief, Enforcement Bureau:

## I. Introduction

1\. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Southern Rhode Island Public Radio Broadcasting, Inc. ("Southern
Rhode Island"), licensee of noncommercial educational station WBLQ(FM),
has apparently violated Section 399B of the Communications Act of 1934,
as amended ("the Act"), and Section 73.503 of the Commission\'s
rules,[^1] by broadcasting impermissible donor and underwriting
announcements. We conclude that Southern Rhode Island is apparently
liable for a forfeiture in the amount of one thousand dollars (\$1,000).

**II. Background**

2\. In this case, we received information suggesting that various
announcements broadcast by Station WBLQ(FM) appear to promote the
products, services or businesses of for-profit enterprises. In response
to this information, we issued a letter of inquiry to Southern Rhode
Island dated September 21, 1999.

3\. In its October 21, 1999, reply, Southern Rhode Island concedes that
the sponsored underwriting acknowledgements described in our letter of
inquiry were broadcast. Southern Rhode Island argues, however, that
because the cited announcements contained factually accurate
information, they are not promotional in nature, and were broadcast in
accordance with the applicable Commission guidelines and the "good
faith" discretion afforded noncommercial broadcasters. The licensee also
believes that the announcement made for King's Cyclery is permissible
because its text does not compare, call to action, or mention price.[^2]
Finally, Southern Rhode Island contends that since the content of its
underwriting announcements is similar to that of other local
noncommercial broadcasters, it should not be punished even if its
broadcasts are found to be in violation of the pertinent Commission
rules.

#### III. Discussion

4\. Section 399B of the Act, as implemented by Section 73.503 of the
Commission\'s rules, prohibits public broadcast 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\" (1986), [republished]{.underline}, 7 FCC Rcd 827
(1992). The Commission has "recognize\[d\] that it may be difficult to
distinguish at times between announcements that promote and those that
identify. We only expect our public broadcast licensees to exercise
their reasonable, good faith judgments in this regard." [Xavier
University]{.underline}, 5 FCC Rcd 4920 (1990) (quoting [Commission
Policy Concerning the Noncommercial Nature of Educational Broadcast
Stations]{.underline}, 90 FCC 2d 895 (1982)). As the Commission made
clear in [Xavier]{.underline}, announcements will not be deemed to be
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. . . ."

5\. We have reviewed the record in light of the "clearly
promotional/good faith" standard set forth by the Commission in
[Xavier]{.underline}. We find that the station's broadcast of the
announcements identified in the Attachment to this Notice of Apparent
Liability exceeded what is permissible under [Xavier]{.underline}, and
that Southern Rhode Island broadcast impermissible advertisements for
the benefit of for-profit entities, in apparent violation of Section
399B of the Act, and Section 73.503 of the Commission\'s rules. In this
regard, the identified announcements contain clearly promotional
references that provide prohibited price information, product or service
comparisons, and qualitative descriptions, and exceed the "good faith"
discretion afforded under [Xavier]{.underline}.

6\. Southern Rhode Island argues that it employed "good faith" in
formulating the subject announcements based on its understanding that
announcements that convey factually accurate information are
permissible, and that references to discounts are acceptable, so long as
they do not specifically mention the price. Contrary to the licensee's
assertion, the use of comparative, qualitative descriptive language is
not rendered non-promotional and permissible merely because the message
conveyed is factually accurate. Moreover, 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;]{.underline} [Public Notice]{.underline}.[^3]
Viewed in their full context, the attached segments clearly go well
beyond "identification" as permitted in [Xavier]{.underline}. They
contain specific product descriptions, suggestions of price discounts,
calls to action and clear inducements encouraging listeners to buy or
try particular products. Thus, for example, in the station's live remote
broadcast from Urso's Auto Village, the underwriter's inducements, such
as "enormous discounts" on merchandise, are recited in connection with
the event. Such inducements appear to promote impermissibly the
for-profit entity's sales event. That other local noncommercial stations
have broadcast announcements similar to those in question in no way
excuses or mitigates the apparent instant violations.

7\. We are also concerned that the licensee has not taken corrective
measures regarding its defective underwriting announcements. Although
Southern Rhode Island asserts that it is not fully versed regarding the
Commission's noncommercial rules, it is nevertheless responsible for
complying with them. The Commission has consistently held that ignorance
of the pertinent statute and rules will not excuse a licensee from its
obligation to operate a station in compliance with the terms of its
authorization and the Commission\'s rules. [Empire Broadcasting
Corp.]{.underline}, 25 FCC 2d 68 (1970). Additionally, licensees cannot
be excused from responsibility for the acts of their managers or
employees. [Id]{.underline}. Consequently, we find that Southern Rhode
Island has apparently violated Section 399B of the Communications Act
and Section 73.503 of the Commission\'s rules regarding permissible
donor and underwriting announcements on noncommercial educational
stations, for the reasons set forth above.[^4] From the information
supplied, it appears that the announcements were made on behalf of five
underwriters identified in the Attachment, broadcast repeatedly since
January, 1999, and were aired in exchange for monetary or trade
remuneration.

8\. In assessing this monetary forfeiture, we have taken into account
the nature, circumstances, extent and gravity of the violations, the
degree of culpability, as well as the station\'s prior enforcement
history. Section 503(b)(2)(D) of the Communications Act of 1934, as
amended, 47 U.S.C. Sec. 503(b)(2)(D). We note that the [Forfeiture
Policy Statement]{.underline}[^5] provides for a forfeiture of \$2,000
as the base amount for violation of the enhanced underwriting
requirements. In this case, we believe that a forfeiture of \$1,000 is
appropriate due to the prior unblemished enforcement record of the
licensee.

#### IV. Ordering Clauses

9\. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80 of the Commission's rules,[^6] Southern Rhode Island Public Radio
Broadcasting, Inc., licensee, noncommercial educational Station
WBLQ(FM), Westerly, Rhode Island, is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of One Thousand Dollars
(\$1,000.00) for willfully and repeatedly violating 47 U.S.C. Section
399b and Section 73.503 of the Commission\'s rules.

10\. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty days of the release of this Notice, Southern
Rhode Island SHALL PAY to the United States the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.

11\. Payment of the forfeiture may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995, or by
mailing a check or similar instrument, payable to the order of the
Federal Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
should note the file number of this proceeding.

12\. The response, if any, must be mailed to the Commission's
Investigations and Hearings Division, Enforcement Bureau, 445 Twelfth
Street, S.W., Room 3 B443, Washington, D.C. 20554, and MUST INCLUDE the
file number referenced above.

13\. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the petitioner
submits: (1) federal tax returns for the most recent three-year period;
(2) financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.

14\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 Twelfth Street, S.W., Washington, D.C.[^7]

15\. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail \-- Return Receipt Requested, to Southern Rhode Island
Public Radio Broadcasting, Inc., 4 Canal Street, Westerly, Rhode Island
02891.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

**[ATTACHMENT]{.underline}**

The following text was taken from audiotapes of the announcements
broadcast May 28, 1999 and June 25, 1999.

1.  [King's Cyclery]{.underline} (75 seconds)

\[Announcement spoken over musical background.\]

Steven: Hi, I am Steven King from "King's Cyclery" in Spindrift Village,
Dunn's Corner. The warm weather is here, and we are ready with the
latest in bicycles, gear and accessories. One of our newest recumbent
bicycles is "Bikee." In my opinion, it's a very relaxing and comfortable
bike, in which one sits on a soft-padded chair with handlebars and
peddles in front. The other new recumbent which WBLQ's own Chris DiPaulo
experienced is "Vision."

Steven: Chris, how did you like it?

Chris: Oh, Steve, I loved it. Like "Bikee," it's relaxing and
comfortable. But, as you know, Steve, I could stand to lose a few
pounds. "Vision" is perfect for me because it's also good exercise. You
can adjust tension and the handlebars are uniquely placed right next to
where I sit, and the peddles are out in front.

Steven: Well, there you have it. You can find these recumbent bikes and
all other kinds of bicycles, gear and accessories as well as a
model-train department at "King's Cyclery" in the Spindrift Village in
Dunn's Corner. And I am proud to be supporting local community radio on
88.1 WBLQ.

Chris: Steve, what is your phone number.

Steven: It's funny you should ask, Chris. It's 322-6005.

2.  [Nigrelli's Jewelry]{.underline} (55 seconds)

For over 50 years, locals have depended on "Nigrelli's Jewelry" in
downtown Westerly for service, repairs, and sales of jewelry.
"Nigrelli's Jewelry" provides all kinds of repairs, including repairing
those wrist-bands on watches, and other watch repairs. They have watch
batteries, they also do all kinds of jewelry repairs including ring
repairs, sizing and more. The phone number at "Nigrelli's Jewelry" is
596-4421. That's 596-4421. "Nigrelli's Jewelry" reminds you that the
birthstone for June is "pearl," and all pearl items are available at a
different price at "Nigrelli's Jewelry." That's "Nigrelli's Jewelry," 27
High Street, in downtown Westerly. Serving the local area for over 50
years. "Nigrelli's Jewelry," another proud contributor to local
programming on 88.1 WBLQ.

3.  [Urso's Auto Village]{.underline} (65 seconds)

\[The following are prefatory lyrics set to music\]:

It's the excitement, it's the freedom, it's the feeling of pride, when
you're ready for adventure, come ride. The open road is calling, no one
knows it like we do. And we've got all the gear to make it happen for
you. 'Cause once you've found freedom, it's a feeling for life . . .
it's the excitement, it's the freedom, it's the feeling of pride, when
you're ready for adventure, come ride.

\[The following is the text of the announcement itself\]:

Rich Urso and David page are ready for summer. "Urso's Auto Village,"
located on Granite Street on Route 1, Westerly, has sports cars, family
vehicles, sport utilities and foreign and domestic vehicles. There are
enormous discounts available. For more information, you can call
348-0200. Join Chris DiPaulo and Ken Collins for a live broadcast on
Saturday June 26, 1999. There'll be give-aways and lots of fun. That's
"Urso's Auto village," located on Granite Street on Route 1, Westerly,
348-0200.

\[Closing repeats lyrics and music.\]

4.  [MP's Automotive Electronics]{.underline} (55 seconds)

\[Announcement spoken over musical background.\]

The summer months are unofficially here. Just picture yourself driving
along Atlantic Avenue on a beautiful summer's night, sunroof down,
talking on your car phone, and cranking out the tunes in your superb
sound system without a care in the world. Sounds nice, but a common
concern for this scenario is -- "can I afford all of this?"

"MP's of Westerly," the car phone store next to "Auto Zone" on Granite
Street, makes it easy. Craig can help you find a sound system and fix
you up with a sunroof that will fit your budget. The cell-phones have a
fixed monthly rate, in both Connecticut and Rhode Island, with digital
choice and choice single-rate plans. MP's of Westerly, the car phone
store next to "Auto Zone" on Granite Street, 348-3071. Another proud
contributor to programming on WBLQ.

5.  [Villa Trombino Restaurant & Lounge]{.underline} (75 seconds)

\[Announcement spoken over musical background.\]

What's the matter? Are you afraid you going to lose her? Well, don't
worry anymore. "The Villa Trombino" can help. They've got dinners for
two at "The Villa Trombino." That's right, dinner for two. Sure to save
a long-lasting relationship. "The Villa Trombino" has all kinds of
dinners for two, like prime-rib of beef, shrimp frantiable, fresh veal
parmesan, chicken marcella, stuffed lobsters, surf and turf. And
everything comes with potato, vegetable and pasta. They also have
premium bottles of wine, like Cinella's Chardonnay, Ernest and Julio
Gallo's White Zinfandel.

"The Villa Trombino Restaurant." Dinners for two. Take your honey out,
you can do it at "The Villa Trombino." "The Villa Trombino" has been
serving the local area for over 25 years. Bennie and Anna Trombino have
been cooking up home-style meals, just like the old country, since the
beginning. And the tradition continues. They have "early bird" specials
at 4 until 6 p.m., and their bar's open most nights 'til 1:00 a.m. "The
Villa Trombino," in business for over 25 years, Route 3, just 2 ½ miles
from downtown Westerly. "The Villa Trombino," another proud contributor
to local programming on WBLQ.

[^1]: 47 U.S.C. Sec. 399b and 47 C.F.R. Sec. 73.503.

[^2]: The licensee further argues that because broadcast references to
    "discounts" offered by underwriters do not contain specific price
    information, they should be deemed permissible.

[^3]: On page 4 of the [Public Notice]{.underline}, the Commission also
    stated that announcements containing an inducement to buy, sell,
    rent or lease are not permissible.

[^4]: [Compare Xavier, supra]{.underline}, where the Commission did not
    impose a sanction for a single prohibited announcement of limited
    duration because, among other things, the licensee took prompt
    corrective action in response to the Commission's initial inquiry.

[^5]: [In the Matter of the Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines]{.underline}, 12 FCC Rcd 17087 (1997), *recon. denied*,
    15 FCC Rcd 303 (1999).

[^6]: *See* 47 C.F.R. Secs. 0.111, 0.311 and 1.80.

[^7]: *See* 47 C.F.R. Sec. 1.1914.