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Renewal of License, K292BA, Dubois, Wyoming

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Released: September 26, 2011

Federal Communications Commission


DA 11-1602

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Application of
)
)

Riverton Broadcasting, Inc.

)
Facility I.D. No. 59589
)
NAL/Acct. No. MB-20114141007
For Renewal of License for
)
FRN: 0010306884
FM Translator Station K292BA
)
File No. BRFT-20101105AHY
Dubois, Wyoming
)

MEMORANDUM OPINION AND ORDER

AND

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: September 23, 2011

Released: September 26, 2011

By the Chief, Audio Division, Media Bureau:

I. INTRODUCTION

1. The Media Bureau ("Bureau") has before it the captioned application of Riverton
Broadcasting, Inc. (the "Licensee") for renewal of its license for FM Translator Station K292BA, Dubois,
Wyoming (the "Station"). In this Memorandum Opinion and Order and Notice of Apparent Liability for
Forfeiture ("NAL")
issued pursuant to Sections 309(k) and 503(b) of the Communications Act of 1934,
as amended (the "Act"), and Section 1.80 of the Commission's Rules (the "Rules"),1 by authority
delegated under Section 0.283 of the Rules,2 we find that the Licensee apparently willfully violated
Section 73.3539 of the Rules3 by failing to file a timely license renewal application for the Station, and
apparently willfully and repeatedly violated Section 301 of the Act4 by continuing Station operations after
its license had expired. Based upon our review of the facts and circumstances before us, we conclude that
the Licensee is apparently liable for a monetary forfeiture in the amount of five hundred dollars ($500),
and we grant the Station's license renewal application.

II.

BACKGROUND

2.
Section 73.3539(a) of the Rules requires that applications for renewal of license for
broadcast stations must be filed "not later than the first day of the fourth full calendar month prior to the
expiration date of the license sought to be renewed."5 An application for renewal of W208BC's license
should have been filed by June 1, 2005. No such application was filed, and the Station's license expired
on October 1, 2005. Accordingly, on October 18, 2010, the staff wrote to the Licensee, indicating that the
Station's license had expired and that: (1) all authority to operate the Station was terminated; and (2) the
Station's call letters had been deleted from the Commission's data base. The Licensee was advised that


1 47 U.S.C. 309(k), 503(b); 47 C.F.R. 1.80.
2 See 47 C.F.R. 0.283.
3 See 47 C.F.R. 73.3539.
4 See 47 U.S.C. 301.
5 47 C.F.R. 73.3539(a).

Federal Communications Commission

DA 11-1602

any operation of the station was then unauthorized and must cease immediately.6 Upon receipt of the
License Expiration Letter, the Licensee tendered both the subject license renewal application for the
Station and a request for special temporary authority to continue station operations pending consideration
of the license renewal application.7 It also filed a Petition for Reconsideration of the License Expiration
Letter
on November 23, 2010. In the STA Request, the Licensee stated that the failure to file a timely
renewal application for the Station was due to "inadvertent administrative oversight."8

III. DISCUSSION

3.
Proposed Forfeiture. In this case, the Licensee failed to file a timely license renewal
application for Station K292BA, as required by Section 73.3539(a) of the Rules. Moreover, Licensee
violated Section 301 of the Act by continuing to operate the Station for more than five years after the
license had expired on October 1, 2005, before filing the appropriate renewal application and seeking
STA to so operate. Licensees are obligated to comply fully with the Rules and the Act, including filing a
timely renewal application and maintaining in effect the station's authorization.9 Here, the Licensee did
not do so.
4.
This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision, any
person who is determined by the Commission to have failed willfully or repeatedly to comply with any
provision of the Act or any rule, regulation, or order issued by the Commission shall be liable to the
United States for a forfeiture penalty.10 Section 312(f)(1) of the Act defines willful as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent to violate" the law.11 The
legislative history to Section 312(f)(1) of the Act clarifies that this definition of willful applies to both
Sections 312 and 503(b) of the Act,12 and the Commission has so interpreted the term in the Section
503(b) context.13 Section 312(f)(2) of the Act provides that "[t]he term `repeated,' when used with
reference to the commission or omission of any act, means the commission or omission of such act more
than once or, if such commission or omission is continuous, for more than one day."14


6 Letter to Steve Kehl, Ref. 1800B3-KAW (MB Oct. 18, 2010) (the "License Expiration Letter").
7 See File No. BLSTA-20101117AKS (the "STA Request"). The staff granted the STA Request on December 13,
2010, and it was to expire on June 13, 2011. Letter to Mr. Mr. Steve Kehl, Ref. 1800B3 (MB Dec. 13, 2010).
However, on June 1, 2001, the Licensee filed a request for extension of the STA, which remains pending. See File
No. BELSTA-20110601ACZ.
8 See STA Request, Exhibit 38.
9 See, e.g., Hemmingford Media, Inc., Forfeiture Order, 14 FCC Rcd 2940, 2941-2 (CIB 1999) (responsibility for
complying with terms of station license "rests solely and exclusively with the licensee") (citing Empire
Broadcasting Corp
., Memorandum Opinion and Order, 25 FCC 2d 68 (1970)).
10 47 U.S.C. 503(b)(1)(B). See also 47 C.F.R. 1.80(a)(1).
11 47 U.S.C. 312(f)(1).
12 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
13 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).
14 47 U.S.C. 312(f)(2).
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Federal Communications Commission

DA 11-1602

5.
The Commission's Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules establish
a base forfeiture amount of $3,000 for the failure to file a required form.15 The guidelines also specify a
base forfeiture amount of $10,000 for construction and/or operation without an instrument of
authorization for the service.16 In determining the appropriate forfeiture amount, we may adjust the base
amount upward or downward by considering the factors enumerated in Section 503(b)(2)(D) of the Act,
including "the nature, circumstances, extent and gravity of the violation, and, with respect to the violator,
the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice
may require."17
6.
In this case, the Licensee failed to file a timely renewal application and continued Station
operations for more than 5 years after the Station's license had expired on October 1, 2005, before filing
the appropriate renewal application and the STA request. Nevertheless, because it had previously been
licensed to operate the Station, the latter transgression is not comparable to "pirate" wireless operations,
which typically have been subject to forfeitures of approximately $10,000. Taking into consideration
these facts and all of the factors required by Section 503(b)(2)(D) of the Act and the Forfeiture Policy
Statement,
and given the Commission's recent decisions assessing forfeitures against licensees of
"secondary" services,18 we reduce the proposed forfeiture for violation of Section 73.3539 of the Rules
from the $3,000 base amount to $250 and reduce the proposed forfeiture for the unauthorized operation
from the $10,000 base amount to $250. Thus, we propose a forfeiture in the total amount of $500.19
7.
License Renewal Application. In evaluating an application for license renewal, the
Commission's decision is governed by Section 309(k) of the Act.20 That section provides that if, upon
consideration of the application and pleadings, we find that (1) the station has served the public interest,
convenience, and necessity; (2) there have been no serious violations of the Act or the Rules; and (3)
there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant
the renewal application.21 If, however, the licensee fails to meet that standard, the Commission may deny
the application after notice and opportunity for a hearing under Section 309(e) of the Act or grant the
application "on terms and conditions that are appropriate, including a renewal for a term less than the
maximum otherwise permitted."22


15 See Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines,
Report and Order, 12 FCC Rcd 17087, 17113-15 (1997) ("Forfeiture Policy Statement"), recon. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. 1.80(b)(4), note to paragraph (b)(4), Section I.
16 A broadcast station requires an authorization from the Commission to operate. See 47 U.S.C. 301.
17 47 U.S.C. 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. 1.80(b)(4).
18 FM Translator stations are "secondary" services, which generally "primary" stations are not required to protect.
See 47 C.F.R. 74.1203.
19 See, e.g., Kane County Special Service District # 1, Forfeiture Order, 25 FCC Rcd 3550, 3552 (MB 2010) ($500
forfeiture imposed for late-filing and unauthorized operation of FM Translator station where a license renewal
application was filed nearly two years after the station's license had expired).
20 47 U.S.C. 309(k).
21 47 U.S.C. 309(k)(1). The renewal standard was amended to read as described by Section 204(a) of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). See Implementation of Sections
204(a) and 204(c) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures)
, Order, 11 FCC
Rcd 6363 (1996).
22 47 U.S.C. 309(k)(2), 309(k)(3).
3

Federal Communications Commission

DA 11-1602

8.
We find that the Licensee's violations of Section 73.3539 of the Rules and Section 301 of
the Act do not constitute "serious violations" warranting designation for evidentiary hearing. Moreover,
we find no evidence of violations that, when considered together, evidence a pattern of abuse.23 Further,
we find that the Station served the public interest, convenience, and necessity during the subject license
term. We will, therefore, grant Licensee's Petition for Reconsideration and reinstate the Station's call
sign, and we will grant the captioned renewal application below.

IV. ORDERING CLAUSES

9.
Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act
of 1934, as amended, and Section 1.80 of the Commission's Rules, that Riverton Broadcasting, Inc. is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of five hundred
dollars ($500) for its apparent willful violation of Section 73.3539 of the Commission's Rules and
apparent willful and repeated violations of Section 301 of the Communications Act of 1934, as amended.
10.
IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, that,
within thirty (30) days of the release date of this NAL, Riverton Broadcasting, Inc. SHALL PAY 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 proposed forfeiture must be made by check or similar instrument, payable
to the order of the Federal Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced in the caption above. Payment by check or money order may be mailed to
Federal Communications Commission, at P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank--Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank: TREAS NYC, BNF: FCC/ACV--27000001 and account number as expressed
on the remittance instrument. If completing the FCC Form 159, enter the NAL/Account number in block
number 23A (call sign/other ID), and enter the letters "FORF" in block number 24A (payment type code).
12.
The response, if any, must be mailed to Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington DC 20554, ATTN: Peter H. Doyle, Chief, Audio
Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.
13.
The Commission will not consider reducing or canceling a forfeiture in response to a
claim of inability to pay unless the respondent 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
respondent'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.


23 For example, we do not find here that the Licensee's operation of the Station "was conducted in an exceedingly
careless, inept and negligent manner and that the Licensee is either incapable of correcting or unwilling to correct
the operating deficiencies." See Heart of the Black Hills Stations, Decision, 32 FCC 2d 196, 198 (1971). Nor do we
find on the record here that "the number, nature and extent" of the violations indicate that "the Licensee cannot be
relied upon to operate [the station] in the future in accordance with the requirements of its licenses and the
Commission's Rules." Id., 32 FCC 2d at 200. See also Center for Study and Application of Black Economic
Development
, Hearing Designation Order, 6 FCC Rcd 4622 (1991), Calvary Educational Broadcasting Network,
Inc
., Hearing Designation Order, 7 FCC Rcd 4037 (1992).
4

Federal Communications Commission

DA 11-1602

14.
Requests for full payment of the forfeiture proposed in this NAL under the installment
plan should be sent to: Associate Managing Director-Financial Operations, 445 12th Street, S.W., Room
1-A625, Washington, DC 20554.24
15.
IT IS FURTHER ORDERED that the November 23, 2010 Petition for Reconsideration
filed by Riverton Broadcasting, Inc. IS GRANTED.
16.
IT IS FURTHER ORDERED that the call sign K292BA IS REINSTATED.
17.
IT IS FURTHER ORDERED that, pursuant to Section 309(k) of the Communications
Act of 1934, as amended, the license renewal application of Riverton Broadcasting, Inc. for FM
Translator Station K292BA, Dubois, Wyoming (File No. BRFT-20101105AHY) IS GRANTED.
18.
IT IS FURTHER ORDERED that a copy of this NAL shall be sent, by First Class and
Certified Mail-Return Receipt Requested, to Riverton Broadcasting, Inc., 603 E. Pershing Avenue,
Riverton, WY 82501.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau


24 See 47 C.F.R. 1.1914.
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