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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
DAYSTAR PUBLIC RADIO, INC. ) EB-01-IH-0484
) Facility #9714
Licensee of Noncommercial )
Educational Station WKSG(FM), )
Cedar Creek, Florida )
MEMORANDUM OPINION AND ORDER
Adopted: July 3, 2002 Released: July
8, 2002
By the Chief, Investigations and Hearings Division,
Enforcement Bureau:
I. Introduction
1. In this Order, we admonish Daystar Public Radio,
Inc. (``Daystar''), licensee of noncommercial educational
station WKSG(FM), Cedar Creek, Florida, for broadcasting
advertisements and conducting impermissible fundraising 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.
Daystar responded to our April 30, 2002, inquiry by its
submission filed May 17, 2002. We have carefully reviewed
the record, including Daystar'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.
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. Specifically, such announcements may not contain
comparative or qualitative descriptions, price information,
calls to action, or inducements to buy, sell, rent or lease.
See Public Notice, In the Matter of the Commission Policy
Concerning the Noncommercial Nature of Educational
Broadcasting Stations (1986), republished, 7 FCC Rcd 827
(1992) (``Public Notice''). At the same time, however, the
Commission has acknowledged that it is at times difficult to
distinguish between language that promotes versus that which
merely identifies the underwriter. Consequently, it expects
only that licensees exercise reasonable, good-faith judgment
in this area. See Xavier University, 5 FCC Rcd 4920 (1990).
4. In addition, the Commission has narrowly construed
what constitutes permissible fundraising on noncommercial
stations. Specifically, the Commission has held that, in
the absence of a waiver, noncommercial stations are
prohibited from conducting any fundraising activity which
substantially alters or suspends regular programming and is
designed to raise support for any entity other than the
station itself, and for purposes other than station
operations. See Commission Policy Concerning the
Noncommercial Nature of Educational Broadcasting Stations
(``Policy Statement''), 90 FCC 2d 895, 907 (1982), recon.
granted, 97 FCC 2d 255, 264-65 (1984); Ohio State
University, 38 RR 2d 22 (1976).
III. Discussion
5. The key facts in this case are not in dispute.
Daystar admits that the station broadcast the five sponsored
announcements described in our letter of inquiry and set
forth in the attached transcript; that the sponsors are for-
profit entities; and that it received consideration for
airing the messages. The station also acknowledges that it
broadcast a seventeen-minute interview with the proprietor
of for-profit EZ Access Transporters, Inc., during which the
station announcer solicited investment funds to assist the
newly founded company in producing its product, the EZ
Tilter Platform. Moreover, Daystar acknowledges that the
announcements, ``as a whole,'' do not comply with Section
399B of the Act, and the pertinent Commission policies and
rules. It also states that the interview ``violate[s] FCC
policies.'' Daystar contends that it assumed its management
``better understood'' the appropriate ``parameters of `on-
air acknowledgments' '' and was disappointed to discover
management's grasp of this issue was faulty. The licensee
asserts that it has since taken steps to ensure underwriting
rule compliance by revising the station's donor
acknowledgment policy and practice. It also states that the
fundraising interview ``would never get by the present
criteria of WKSG policies.''
6. 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. In
addition, we find that Daystar engaged in impermissible
fundraising through the seventeen-minute interview with the
proprietor of for-profit EZ Access Transporters, Inc.,
during which the station announcer solicited investment
funds to assist the newly founded company in producing its
product, the EZ Tilter Platform. In this regard, we note
that the fact that the licensee did not receive
consideration from broadcasting these fundraising pleas is
not relevant to the question of whether the fundraising
appeal itself was appropriate. Solicitations of the type
conducted here are prohibited.
IV. Ordering Clauses
7. In view of the foregoing, we conclude that a
sanction is appropriate. Accordingly, IT IS ORDERED that
Daystar Public Radio, Inc., licensee of noncommercial
educational station WKSG(FM), Cedar Creek, Florida, IS
ADMONISHED for broadcasting advertisements and for
conducting impermissible fundraising 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.
8. IT IS FURTHER ORDERED that a copy of this
Memorandum Opinion and Order shall be sent, by Certified
Mail -- Return Receipt Requested, to Daystar Public Radio,
Inc., 1403 Indian River Avenue, Titusville, Florida, 32780.
FEDERAL COMMUNICATIONS COMMISSION
Charles W. Kelley
Chief, Investigations and Hearings
Division
Enforcement Bureau
Attachment
ATTACHMENT
The following text was transcribed from audio-taped
recordings of underwriting announcements broadcast on
WKSG(FM), Cedar Creek, Florida, on July 30, 2001:
1. Precision Air Heating and Air Conditioning (60
seconds.)
For every system purchased, Precision Air Heating and Air
Conditioning will donate $100.00 to the Bullet-Proof Vest
Fund, Inc., a not-for-profit corporation. Donations may be
made at any one of the eleven locations of Sun Trust Bank. .
. . Again, thank you to Dave Leonard at Precision Air, home
of the ``Trane Home Heating and Cooling Systems.''
Precision Air focuses on service, and when you call, you
will speak to a live service representative, 24 hours a day,
seven days a week. That's Precision Air Heating and Air
Conditioning, 3330 S.E. 58th Avenue. . . . The phone number
is 352-624-4000. That's 624-4000. And when you call, they
haul. AC decision? Call Precision.
2. Lord's Gym (90 seconds.)
Why settle for being merely physically fit when you can be
spiritually fit as well? At Lord's Gym, we believe in
giving you the tools you need to be the person you always
knew you could be. It's more than the recumbent bikes, the
elliptical trainers, and stair-steppers. We're
revolutionizing the fitness industry with our Christian
fitness center, right here in north central Florida.
Lord's Gym is more than you expect. We adhere to a
different and, we feel, more complete vision of what it
means to be ``in shape.'' The staff at Lord's Gym is here
to help you. Our personal trainers offer comprehensive one-
on-one training sessions, and they look forward to helping
you maximize your potential¾inside and out.
And don't forget Kid's Power. The exercise program just for
kids, aged 6-12. It's a circuit training workout. Kid's
Power is a comprehensive fitness program for children aged
6-12 years old. Non-competitive games, activities, are
implemented in a fast-paced 45-minute class. As many as 20
children can participate in Kid's Power. It's Kid's Power,
growing strong together, at Lord's Gym. Located at 2467
S.W. 27th Avenue, in the Shady Oaks Plaza. The phone number
at Lord's Gym is 352-629-7757.
3. All-County Plumbing (45 seconds.)
I want to say thank you to my friends at All-County
Plumbing. . . . The entire crew out there is just something
special. All-County Plumbing specializes in repairs,
remodels, new construction, 24-hour service, sewer and drain
cleaning. They are Marion County's premier drain surgeons.
That's right¾you call them at 687-0806. 687-0806. You
call¾they come. They'll be wearing the white heats because
they're good guys. And you know, good guys always wear the
white hats.
4. Sears Hearing-Aid Center (90 seconds.)
[We] would like to say thank you to the Sears Hearing-Aid
Center for their continued support of Daystar Radio. Sears
Hearing-Aid Center is located in the sears Store in Paddock
Mall in Ocala, Florida. Sears Hearing-Aid Center offers the
Miracle Ear Hearing-Aid System. Miracle Ear has been in
business since 1947 offering unparalleled service to the
hearing impaired for over half a century. Sears Hearing-Aid
Center is a family-owned and operated business priding
itself on its professional and personal one-on-one service.
And let me say that excellence is not expensive, it's
priceless. Ricky and Deidre Richardson along with Ricky's
twin brother Dicky promise that they will make your visit
and testing an absolutely pleasant experience. Guaranteed.
It's the Sears Hearing-Aid Center in the Sears Store in the
Paddock Mall in Ocala, Florida. The phone number in Ocala
is 352-237-1665.
5. Hiers-Baxley Funeral Services (90 seconds.)
Honor to those you love is the highest priority of Hiers-
Baxley Funeral Services. Understanding and guidance are
essential tools of the Hiers-Baxley Funeral Services
professional staff. Hiers-Baxley Funeral Services is a
place of family. We are proud to be Marion County's oldest
business still in operation. The Hiers and Baxley families
have given our company the strength to remain the only
independent funeral service provider in north central
Florida, who offers your family complete funeral, crematory,
and advance-planning services. Hiers-Baxley Funeral
Services has been serving families since 1885 and will
continue to do so for generations to come. Hiers-Baxley
Funeral Services - when trust matters most.