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Renewal Of License, WBRY(AM), Woodbury, TN

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Released: April 3, 2014

Federal Communications Commission

DA 14-457

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Application of
)
)

Volunteer Broadcasting, LLC

)
Facility I.D. No. 15530
)
NAL/Acct. No. MB-201441410008
For Renewal of License for
)
FRN: 0013766621
Station WBRY(AM)
)
File No. BR-20120829AFF
Woodbury, Tennessee
)

MEMORANDUM OPINION AND ORDER

AND

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: April 3, 2014

Released: April 3, 2014

By the Chief, Audio Division, Media Bureau:

I. INTRODUCTION

1. The Media Bureau (“Bureau”) has before it the application (the “Application”) of Volunteer
Broadcasting, LLC (“Licensee”) for renewal of license for Station DWBRY, Woodbury, Tennessee
(“Station”). In this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture
(“NAL”),1 we find that the Licensee apparently willfully and repeatedly violated Section 73.3539 of the
Rules2 by failing to file a timely license renewal application for the Station, and apparently willfully and
repeatedly violated Section 301 of the Act, 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 seven thousand dollars ($7,000), and we
reinstate the Station’s call sign.

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.”3 An application for renewal of the Station’s license should
have been filed by April 1, 2012, four months prior to the Station’s August 1, 2012, license expiration
date,4 but was not. Accordingly, on August 27, 2012, 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
Stations call letters had been deleted from the Commission’s data base. The Licensee was advised that
any operation of the station was then unauthorized and must cease immediately.5 Upon receipt of the
License Expiration Letter, on August 28, 2012, the Licensee tendered a request for special temporary


1 This NAL is issued pursuant to Sections 309(k) and 503(b) of the Communications Act of 1934, as amended
(“Act”), and Section 1.80 of the Commission’s Rules (“Rules”). See 47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80.
The Bureau has delegated authority to issue the NAL under Section 0.283 of the Rules. See 47 C.F.R. § 0.283.
2 See 47 C.F.R. § 73.3539(a).
3 47 C.F.R. § 73.3539(a).
4 See 47 C.F.R. §§ 73.1020, 73.3539(a).
5 Letter to Volunteer Broadcasting, LLC (MB Aug. 27, 2012) (“License Expiration Letter”).

Federal Communications Commission

DA 14-457

authority6 to continue Station operations and, the next day, the Application. In both the Application and
the STA Request, the Licensee indicated that its renewal application for the Station was timely filed but,
due to a delay in the payment of the application filing fee, the payment was not associated with the
License in a timely matter and the application was dismissed, which allowed the license to expire.

III. DISCUSSION

3. Proposed Forfeiture. In this case, the record indicates that the Licensee has failed to file a
timely license renewal application for Station WBRY(AM), as required by Section 73.3539(a) of the
Rules. Moreover, the licensee continued Station operation for almost a month after its license had expired
on August 1, 2012, before filing the appropriate renewal application and seeking STA to so operate, in
violation of Section 301 of the Act. Licensees are obligated to comply fully with the Rules, including
filing a timely renewal application and maintaining in effect the station’s authorization.7 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.8 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.9 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,10 and the Commission has so interpreted the term in the Section
503(b) context.11 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.”12
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.13 The guidelines also specify a
base forfeiture amount of $10,000 for construction and/or operation without an instrument of
authorization for the service.14 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


6 BLSTA-20120828AGA (“STA Request”). The staff granted the STA Request on January 15, 2014. Letter to Mr.
Douglas Combs, Volunteer Broadcasting, LLC,
Reference 1800B3 (MB Jan. 15, 2014).
7 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)).
8 47 U.S.C. § 503(b)(1)(B). See also 47 C.F.R. § 1.80(a)(1).
9 47 U.S.C. § 312(f)(1).
10 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
11 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).
12 47 U.S.C. § 312(f)(2).
13 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.
14 A broadcast station requires an authorization from the Commission to operate. See 47 U.S.C. § 301.
2

Federal Communications Commission

DA 14-457

may require.”15
6. In this case, the Licensee failed to file a timely renewal application and continued Station
operations for almost one month before filing the appropriate renewal application and 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, we propose a forfeiture for the full $3,000
amount for the failure to file a timely renewal application but reduce the proposed forfeiture for the
unauthorized operation from the $10,000 base amount to $4,000. Thus, we propose a forfeiture in the
amount of seven thousand dollars ($7,000).
7. License Renewal Application. In evaluating an application for license renewal, the
Commission’s decision is governed by Section 309(k) of the Act.16 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.17 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.”18
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.19 Further, we
find that Station WBRY(AM) served the public interest, convenience, and necessity during the subject
license term. We will, therefore, reinstate the Station call sign and will grant the Application by separate
action upon the conclusion of this forfeiture proceeding if there are no issues other than the apparent
violations that would preclude grant of the application.20


15 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).
16 47 U.S.C. § 309(k).
17 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).
18 47 U.S.C. §§ 309(k)(2), 309(k)(3).
19 For example, we do not find here that the Licensee's Station operation "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. 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).
20 The January 15, 2014, STA to continue Station operations (see n.6, supra) will expire on July 15, 2014. If the
Application has not been granted prior to that date, the Licensee must seek extension of the STA.
3

Federal Communications Commission

DA 14-457

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 Volunteer Broadcasting, LLC is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand
dollars ($7,000) for his apparent willful violation of Section 73.3539 of the Commission’s Rules and
apparent willful and repeated violation 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, Volunteer Broadcasting, LLC 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).
Licensee will also send electronic notification on the date said payment is made to
Penelope.Dade@fcc.gov and Karen.Workeman@fcc.gov.
12. The response, if any, must be mailed to Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington D.C. 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.
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, D.C. 20554.21
15. IT IS FURTHERED ORDERED that the call sign WBRY(AM) IS REINSTATED.


21 See 47 C.F.R. § 1.1914.
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Federal Communications Commission

DA 14-457

16. IT IS FURTHER ORDERED that a copy of this NAL shall be sent, by First Class and Certified
Mail-Return Receipt Requested, to Mr. Douglas Combs, Volunteer Broadcasting, LLC, P.O. Box 7,
Woodbury, Tennessee 37190.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau
5

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