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FCC Underwriting Rules & Precedents

Regarding underwriting for non-commercial radio and TV stations, there are hard and fast rules which have be specified and which are easy to comply with and there are FCC “precedents” which are developed over time by the “Commission”. These are often by way of complaints to the FCC by other broadcasters. In order to be aware of some of what these may be, one must read through many complaints to learn the direction that the FCC is taking.

As examples, the FCC once indicated that underwriting announcements which were over 60 seconds were of issue. In a recent forfeiture notice, it was noted that the station had announcements which were over 30 seconds so that is now the de facto standard. Another example is: how long can a list of products be? Some stations will only allow three while others may allow more. WREN has settled on five but there is no hard and fast rule on that but there is the threat of a fine if the FCC thinks that your number is “excessive”.

The following is from an FCC “white paper” on Public Broadcasting which reflects issues for which National Public Radio (NPR) has questions. The FCC notes those questions but does not provide any answers.

Though the FCC publishes on its website enforcement actions related to underwriting, several parties have asked for clarifications on what is or is not allowed. For instance, NPR wrote in 2010: “NPR and its public broadcasting colleagues work hard and carefully to comply with the FCC’s rules, but uncertainties about particular language issues have made the task substantially more difficult, especially given the changing nature and expectations of underwriters.” National public radio identifies the following as “issues that arise routinely and that are not addressed
by the FCC’s formal guidance”:

“1. Aspirational language, such as language describing an automobile tire as ‘designed to extend mileage’ or ‘helping reduce
energy loss.’
“2. References to technical specifications, such as language describing an air filter as ‘99.9 percent efficient and 100 percent
covered in textured grip control.’
“3. References to third party standards, such as ‘ENERGY STAR rated’ appliances.
“4. Language referring to a funder’s website for product specific information, such as ‘where visitors can learn more about the
importance of inspecting shocks and struts at fifty thousand miles.’
“5. Language describing an episode of a television program as ‘all-new’ or ‘a sneak preview.’
“6. A reference to an award, such as an ‘Academy Award’ winning movie or actor.
“7. References to product ingredients, such as ‘130 calories or less per serving.’
“8. References to a funder’s charitable endeavors, such as ‘investing $100 million towards education each year.’
“9. Quantitative references to a funder’s specific experience, such as ‘thirty-five years of clinical experience.’
“10. References to arguably promotional website addresses, such as ‘Trust the Check dot com.’ ”

The entire paper from which the above is excerpted from is available at: https://transition.fcc.gov/osp/inc-report/INoC-31-Nonprofit-Media.pdf.

As may be known, WREN and three other radio stations located at the Virginia Radio Coop were served with a petition to deny our FCC licenses by Saga Communications Tidewater Communications division (TA as Charlottesville Radio Group). One of the issues was underwriting which they felt was advertising. While we don’t quite agree with that we did come to realize that some of what we were doing was at issue with regard to the precedents which are developed ad hoc by the FCC which are no truly specified in hard rules. As such we have worked with our communications attorney, Cary Tepper of the Tepper Law Firm to re-write many of our underwriting announcements and apply what we have learned from him to new underwriting announcements. Our cost so far for the “Saga Proceeding” are at $7,000 which is a lot for a very small no-commercial radio station.

The following piece is from the FCC and references the hard FCC Part 73 rules on non-commercial underwriting as well as their general views of their “precedents” and includes some of the forfeiture and other notices issued by the FCC prior to June 15, 2017 when this document was last updated.

We have bolded some passages below which we note here:

It continues to be our view that the public broadcaster’s good faith judgement must be the key element in meeting Congress’ determination that the service should remain free of commercial and commercial-like matter.

We reiterate that acknowledgements should be made for identification purposes only and should not promote the contributor’s products, services, or company.

We repeat that the Commission will continue to rely on the good faith determinations of public broadcasters in interpreting our noncommercialization guidelines.  We emphasize, however, that we will review complaints and, in the event of clear abuses of discretion, will implement appropriate sanctions, including monetary forfeitures.

I believe that those passages exemplify the issue which WREN and other non-commercial stations have.

We did want to add this page to explain the situation to current and future underwriters of WREN. Your support of WREN is very much appreciated!

The following is the full text of this document which is also available at https://www.fcc.gov/media/radio/nature-of-educational-broadcasting:

1992 Reprint excerpted from Public Notice, April 11, 1986 (FCC 86-161),
which was published at 51 FR 21800, June 16, 1986 [7 FCC Record 827]

The Commission has become aware of significant uncertainty and controversy concerning various aspects of Commission and statutory policy relating to commercial underwriting on noncommercial stations.  As a consequence, we have reviewed the existing policies, focusing on … : (1) the broadcast of announcements relating to goods and services for which consideration is received by the station; (2) enhanced underwriting and donor announcements; (3) the offering of program- related materials; …. [Public Notice continues after the Table of Contents]

Table of Contents

——————————–
Announcements Promoting Goods and Services

Section 399B of the Communication’s Act of 1934, as amended, and Sections 73.503(d) and 73.621(e) of our rules, specifically proscribe the broadcast of announcements by public broadcast stations which promote the sale of goods and services of for-profit entities in return for consideration paid to the station.  These rules, however, permit contributors of funds to the station to receive on-air acknowledgements.  The Commission has articulated specific guidelines which emphasize the difference between permissible donor and underwriter announcements and commercial advertising.  See Commission Policy Concerning the Noncommercial Educational Nature of Educational Broadcasting Stations, 97 FCC 2d 255 (1984) (hereafter referred to as “1984 Order“); Commission Policy Concerning the Noncommercial Educational Nature of Educational Broadcasting Stations, 90 FCC 2d 895 (1982) (hereafter referred to as “1982 Order“; Second Report and Order, 86 FCC 2d 141 (1981); First Report and Order and Notice of Proposed Rulemaking, 69 FCC 2d 200 (1978).

Recent cases before the Commission indicate that some noncommercial broadcasters have aired outright commercial messages on behalf of profit making entities in violation of our rules and the statute (footnote omitted).  As our action in those cases attest, we will enforce our prohibition on the broadcast of commercial messages on behalf of profit making enterprises for which consideration is paid to the station. Information brought to the attention of the Commission regarding such practices will be scrutinized and licensees found to have engaged in them will be sanctioned.

Enhanced Underwriting and Donor Acknowledgements

Beyond the airing of paid promotional announcements, our recent review of underwriting activities indicates that some public broadcasters may be airing donor and underwriter announcements which exceed the Commission’s guidelines.  In light of these instances and an ongoing debate in the public broadcasting community on these issues, we believe that a brief statement concerning the obligations of public broadcasters with respect to donor and underwriting acknowledgements is appropriate.  In March 1984, we relaxed our noncommercial policy to allow public broadcasters to expand or “enhance” the scope of donor and underwriter acknowledgements to include (1) logograms or slogans which identify and do not promote, (2) location information, (3) value neutral descriptions of a product line or service, and (4) brand and trade names and product or service listings.  1984 Order at 263.  That action was taken as another step in our ongoing effort to strike a reasonable balance between the financial needs of public broadcast stations and their obligation to provide an essentially noncommercial service.  It was our view that “enhanced underwriting” would offer significant potential benefits to public broadcasting in terms of attracting additional business support and would thereby improve the financial self-sufficiency of the service without threatening its underlying noncommercial nature.  In this regard, we emphasized that such announcements could not include qualitative or comparative language and that the Order should not be construed as allowing advertisements as defined in Section 399B of the Communications Act.  Id. (Footnote 1)

We recognized in our 1982 Order that it may be difficult at times to distinguish between announcements that promote and those that identify.  For that reason, we expressly stated that we expect public broadcast licensees to review their donor or underwriter acknowledgements and make reasonable good faith judgements as to whether they identify, rather than promote.  1982 Order at 911.  We saw no purpose at the time, or at the time we adopted our 1984 Order, in fashioning rigid regulations or guidelines to ensure the noncommercial nature of public broadcasting, and we were concerned that such guidelines would inhibit public broadcasters’ ability to seek and obtain the funds needed to present quality programming and to remain financially viable.  It continues to be our view that the public broadcaster’s good faith judgement must be the key element in meeting Congress’ determination that the service should remain free of commercial and commercial-like matter.  In response to requests for guidance, however, we will attempt to further clarify the guidelines applicable to public broadcasters’ exercise of their discretion.

We reiterate that acknowledgements should be made for identification purposes only and should not promote the contributor’s products, services, or company.  For example, logos or logograms used by corporations or businesses are permitted so long as they do not contain comparative or qualitative descriptions of the donor’s products or services.  Similarly, company slogans which contain general product-line descriptions are acceptable if not designed to be promotional in nature.  Visual depictions of specific products are permissible.  We also believe that the inclusion of a telephone number in an acknowledgement is within these general guidelines and, therefore, permissible.

Several examples of announcements that would clearly violate the rule may be helpful:

  • A.  Announcements containing price information are not permissible.  This would include any announcement of interest rate information or other indication of savings or value associated with the product.  An example of such an announcement is:
    • — “7.7% interest rate available now.”
  • B.  Announcements containing a call to action are not permissible.  Examples of such announcements are:
    • — “Stop by our showroom to see a model”;
    • — “Try product X next time you buy oil.”
  • C.  Announcements containing an inducement to buy, sell, rent, or lease are not permissible.  Examples of such announcements are:
    • — “Six months’ free service”;
    • — “A bonus available this week”;
    • — “Special gift for the first 50 visitors.”

Additionally, examples of proscribed product messages can be seen in the instances where the Commission has assessed forfeitures or issued letters of warning for rule violations.  (Footnote omitted.) [See the original April 11, 1986 Public Notice for material omitted in the 1992 Reprint]

We repeat that the Commission will continue to rely on the good faith determinations of public broadcasters in interpreting our noncommercialization guidelines.  We emphasize, however, that we will review complaints and, in the event of clear abuses of discretion, will implement appropriate sanctions, including monetary forfeitures.

Program Related Materials

We have reviewed the Commission’s policies regarding the offering of program-related materials.  We have looked carefully at this area because it has come to our attention that such offerings have been used by noncommercial educational licensees to raise funds for program acquisition purposes, a novel fund raising device.

Our 1982 Order dealt with the sale of program-related materials.  It concluded that because Congress has approved direct promotional fundraising announcements by nonprofit organizations, public broadcasters could air announcements promoting program-related materials sold by nonprofit organizations, including the station itself.  1982 Order at 907.  It is our belief that in order for the audience to be informed about the sponsor of these offerings, the nonprofit organization sponsoring the offering should be clearly identified in the announcement, a requirement in keeping with the mandate of Section 317 of the Communications Act and Section 73.1212 of our rules.

Guidelines covering announcements for the sale of program-related materials by for-profit entities were not changed by our 1982 Order.  Thus, such announcements are permitted so long as the licensee

  1. receives no consideration for the announcement; and
  2. the materials are offered on the basis of public interest considerations and not the private economic interests of the offeror; or
  3. the price of the materials offered is only nominal.

Second Report and Order, 86 FCC 2d at 152.  As noted above, the nominal price requirement does not apply to offerings sponsored by nonprofit entities.* * *

Action by the Commission April 10, 1986 (corrected April 24, 1986).
Commissioners Fowler (Chairman), Quello, Dawson and Patrick
FEDERAL COMMUNICATIONS COMMISSION

Orders Pertaining to These Topics

  • Noncommercial Educational Station Fundraising for Third Party Non-Profit OrganizationsReport and Order (R&O)MB Docket 12-106, FCC 17- 41, released April 20, 2017. [ PDF | Word ]. Ajit Pai: [ PDF | Word ]. Clyburn: [ PDF | Word ]. O’Rielly: [ PDF | Word ].  New rules adopted allowing many radio and TV stations to air limited fundraisers for other non-profits.  News Release: [ PDF ].
  • Hispanic Arts of Tampa, Inc., licensee for FM station WVVF-LPOrder, DA 17-221, released March 9, 2017.  [ PDF | Word ].  Informal objection dismissed, consent decree adopted regarding commercial announcements on an NCE FPFM station.
  • Noncommercial Educational Station Fundraising for Third-Party Non-Profit OrganizationsNPRM, FCC 12-43, released April 26, 2012.  [ PDF | Word ].
  • Closed Auction of Broadcast Construction PermitsPublic Notice, DA 10-125, released February 4, 2010.  [ PDF | Word ].
  • Window Opened to October 30, 2009, to Permit Amendment of Applications for Noncommercial Educational Stations in Pending, Closed Mixed GroupsPublic Notice, DA 09-2148, released October 30, 2009.  [ PDF | Word ] Attachment A [ Excel ].
  • Independent Public Media of Philadelphia, Inc. (WYBE-TV)Notice of Apparent Liability for Forfeiture, DA 09-49, released February 10, 2009.  [ PDF | Word ].
  • Reexamination of the Comparative Standards for Noncommercial Educational ApplicantsForfeiture Order, FCC 08-219, released December 2, 2008.  [ PDF | Word ].  Forfeiture order affirmed.
  • Christian Voice of Central Ohio, Inc. [WCVZ (FM), South Zanesville, OH]Forfeiture Order, FCC 08-250, released October 23, 2008.  [ PDF | Word ].  Forfeiture order affirmed.
  • Christian Voice of Central Ohio, Inc. [WCVZ (FM), South Zanesville, OH]Forfeiture Order, DA 08-1092, released May 9, 2008.  [ PDF | Word ].
  • American Heritage Media, Inc. [KFLO-LP (FM), Jonesboro, AR]Letter, DA 05-2897, released November 3, 2005.  [ PDF | Word ].
  • Christian Voice of Central Ohio [WCVZ (FM), Zanesville, OH]Notice of Apparent Liability for Forfeiture, DA 04-3838, released December 7, 2004.  [ PDF | Word ].
  • Technology Information Foundation [WLFK-LP, Eau Claire, WI]Memorandum Opinion and Order, DA 04-3555, released November 9, 2004.  [ PDF | Word ].
  • Enid Public Radio Association [KUAL-LP, Enid, OK]Memorandum Opinion and Order, DA 04-2609, released August 24, 2004.  [ PDF | Word ].
  • Piscataway Board of Education and King’s Temple Ministries, Inc.Hearing Designation Order, DA 04-957, released April 9, 2004.  [ PDF | Word ].
  • Great Lakes Community Broadcasting, Inc. [WAAQ, Onsted, MI; W214BH, Mount Pleasant, MI]Memorandum Opinion and Order, DA 03-3864, released December 4, 2003.  [ PDF | Word ].
  • Reexamination of the Comparative Standards for Noncommercial Educational ApplicantsR&O, FCC 03-44, released April 10, 2003.  [ PDF | Word ].
  • Isothermal Community College [WNCW (FM), Spindale, NC]Memorandum Opinion and Order, DA 01-2831, released December 6, 2001. [ PDF | Word ].
    • MO&O denying petition for reconsideration, but deleting Paragraph 9 of the 12/6/2001 MO&O, DA 02- 3083, released November 12, 2002.  [ PDF | Word ].
  • Minority Television Project, Inc. [KMTP-TV, San Francisco, CA]Notice of Apparent Liability for Forfeiture, DA 02-1945, 17 FCC Rcd 15646, released August 9, 2002.  [ PDF | Word ].
  • Noncommercial Educational FM and FM Translator Applications Dismissed for Failure to File Required InformationPublic Notice, DA 02-1963, released August 9, 2002.  [ PDF | Word ].
  • Reexamination of the Comparative Standards for Noncommercial Educational ApplicantsNPRM, FCC 2-44, released February 25, 2002.  [ PDF | Word ’97 ].
  • Hispanic Broadcasting System, Inc. WWKQ (FM), Kissimmee, FL and WLAY (FM), Clermont, FL)Memorandum Opinion and Order, FCC 01-105, released April 2, 2001.  [ PDF | Word ].
  • Reexamination of the Comparative Standards for Noncommercial Educational ApplicantsMO&O, FCC 01-64, released February 28, 2001.  [ PDF | Word ].
  • Southern Rhode Island Public Radio Broadcasting, Inc. (WBLQ (FM))Notice of Apparent Liability for Forfeiture, DA 00-1011, released May 9, 2000.  [ PDF | Word ].
  • Reexamination of the Comparative Standards for Noncommercial Educational ApplicantsR&O, FCC 00-120, released April 21, 2000.  [ PDF | Word ’97 ].
  • Letter to American Family Association, licensee of Educational Translator W204AV, Sanford, NC, released August 12, 1999.  [ HTML ].
  • Russellville Educational Broadcast Foundation, Licensee of KMTC (FM)Letter. released July 1, 1999.  [ PDF | Text ].  Request for reduction of forfeiture denied, August 19, 1999 [ PDF | Text ].
  • Know When to Say No: Underwriting ControversiesRemarks delivered by Kenneth M. Scheibel, Jr., Senior Attorney Advisor in the Mass Media Bureau’s Enforcement Division to the 1999 National Public Radio Conference in Washington, D.C. on May 15, 1999.
  • Evansville-Vanderburgh School Corporation, Licensee of WPSR (FM)Letter, released March 23, 1999.  [ Word ].
  • Penfold Communications, Inc., Licensee of KRTM(FM)Memorandum Opinion and Order and Forfeiture Order, DA 98-2407, 13 FCC Rcd 23731, released November 25, 1998.  [ PDF ].
  • Agape Broadcasting Foundation (KNON-FM), DA 98-825, 13 FCC Rcd 13154, released May 1, 1998.  [ PDF ].
  • Window to the World Communications, Inc. (WTTW(TV)), 12 FCC Rcd 20239, released December 3, 1997 [ PDF | Text ]. See also Forfeiture Order, DA 00-511, released March 6, 2000, which reversed several initial conclusions and reduced the forfeiture.  [ PDF | Text ].
  • Ana G. Mendez Foundation, Noncommercial Station WMTJ-TV, 12 FCC Rcd 19443, released November 17, 1997.  [ PDF | Text ].
  • Penfold Communications, Inc., Licensee of KRTM(FM), 13 FCC Rcd 1947, released 08/15/1997.  [ PDF | Text ].  Also see above, Sept. 15, 1997 Request for Withdrawal of NAL denied 11/25/1998.
  • Agape Broadcasting Foundation (KNON-FM), DA 92-223, 7 FCC Rcd 1709, released 02/28/1992.  [ PDF ].
  • Letter to Robert Hardy, KAWC (FM), November 13, 1989. [ PDF ].  Noncommercial educational broadcast of old radio shows that include old commercials.

——Commission Orders——-

——————————–

Inquiries On These Topics may be addressed to the Enforcement Bureau, Investigations and Hearing Division at (202)-418- 1420.

This Section contains the Footnote Links from the main document above.

Footnote 1

Section 399B [of the Communications Act] provides, in pertinent part:

(a) For purposes of this section, the term “advertisement” means any message or other programming material which is broadcast or otherwise transmitted in exchange for any remuneration, and which is intended —

(1) to promote any service, facility, or product offered by any person who is engaged in such offering for profit;
(2) to express the views of any person with respect to any matter of public importance or interest;
(3) to support or oppose any candidate for public office.

For more information on AM and FM radio broadcasting, please visit the Audio Division website, and the Broadcast Radio Links page.

For more information on Television broadcasting, please visit the Video Division website.

FCC > Media Bureau > Audio Division, (202) 418-2700, and Video Division, (202) 418-1600.Bureau/Office: MediaTags: Class A and Low Power Television – Digital Television – FM Radio – Low Power FM – Noncommercial Educational (NCE) – Noncommercial Educational (NCE) – Radio – Television

Updated: Thursday, June 15, 2017