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Renewal of License, WRAN-LP, Randolph, VT

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Released: October 21, 2011

Federal Communications Commission


DA 11-1752

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Application of
)
)

Vermont Agency of Transportation

)
Facility I.D. No. 133815
)
NAL/Acct. No. MB-201141410010
For Renewal of License for
)
FRN: 0020337382
Low Power FM Station WRAN-LP
)
File No. BRL-20101117AKO
Randolph, Vermont
)

MEMORANDUM OPINION AND ORDER

AND

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: October 21, 2011

Released: October 21, 2011

By the Chief, Audio Division, Media Bureau:

I. INTRODUCTION

1.
The Media Bureau ("Bureau") has before it the captioned application of Vermont Agency
of Transportation (the "Licensee") for renewal of its license for Low Power FM Station WRAN-LP,
Randolph, Vermont (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 to the Bureau under Section 0.283 of the Rules,2 we find that the Licensee apparently
willfully violated Section 73.3539 of the Rules,3 by failing to file a timely license renewal application for
the Station, and apparently willfully and repeatedly violated Section 301 of the Act,4 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 WRAN-LP's license
should have been filed by December 1, 2005. No such application was filed, and the Station's license
expired on April 1, 2006. 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


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 11-1752

(2) the Station's 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.6 Upon
receipt of the License Expiration Letter, on November 17, 2010, the Licensee tendered both the subject
renewal application and a request for Special Temporary Authorization to continue station operations
pending consideration of the renewal application.7 The staff granted the STA Request on May 11, 2011,
and it is due to expire on November 11, 2011.8 In both the renewal application and the STA Request, the
Licensee stated that its failure to file a timely renewal application for the Station was the result of staff
turnover and the failure to realize that the Station's license needed to be renewed.

III. DISCUSSION

3.
Proposed Forfeiture. In this case, the Licensee failed to file a timely license renewal
application for Station WRAN-LP, 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 four years after the
license had expired on April 1, 2006, 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 Vermont Agency of Transportation, Ref. 1800B3-KAW (MB Oct. 18, 2010) (the "License Expiration
Letter
").
7 See File No. BLSTA-20101117AKQ (the "STA Request").
8 Letter to Robert T. White., Ref. 1800B3 (MB May 12, 2011).
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, 4387 (1991),
recon. denied, 7 FCC Rcd 3454 (1992) ("Southern California").
14 47 U.S.C. 312(f)(2).
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Federal Communications Commission

DA 11-1752

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 four years after the Station's license had expired on April 1, 2006, before filing
the appropriate renewal application and STA request. Moreover, although the licensee claims that the
failure to file a timely renewal application for the Station was unintentional and resulted from staff
turnover, the Commission has held that violations resulting from inadvertent error or failure to become
familiar with the FCC's requirements are willful violations.18 It has declined to reduce or cancel
forfeitures in similar circumstances.19 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,20 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 $500.21
7.
License Renewal Application. In evaluating an application for license renewal, the
Commission's decision is governed by Section 309(k) of the Act.22 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


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 See Southern California, 6 FCC Rcd at 4387 (stating that "inadvertence ... is at best, ignorance of the law, which
the Commission does not consider a mitigating circumstance"); Standard Communications Corp., Memorandum
Opinion and Order, 1 FCC Rcd 358, 358 (1986) (stating that "employee acts or omissions, such as clerical errors in
failing to file required forms, do not excuse violations").
19 See Big Sky Owners Association, Inc., Forfeiture Order, 24 FCC Rcd 12215, 12216 (MB 2009) (rejecting staff
turnover as an acceptable reason for untimely filing a license renewal application).
20 LPFM stations are "secondary" services, which generally "primary" FM stations are not required to protect. See
47 C.F.R. 73.809.
21 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).
22 47 U.S.C. 309(k).
3

Federal Communications Commission

DA 11-1752

the renewal application.23 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."24
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.25 Further,
we find that the Station served the public interest, convenience, and necessity during the subject license
term. We will, therefore, 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 Vermont Agency of
Transportation 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, Vermont Agency of Transportation 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 D.C. 20554, ATTN: Peter H. Doyle, Chief, Audio
Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.


23 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).
24 47 U.S.C. 309(k)(2), 309(k)(3).
25 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 11-1752

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, DC 20554.26
15.
IT IS FURTHER ORDERED that the call sign WRAN-LP IS REINSTATED.
16.
IT IS FURTHER ORDERED that, pursuant to Section 309(k) of the Communications
Act of 1934, as amended, the license renewal application of Vermont Agency of Transportation for Low
Power FM WRAN-LP, Randolph, Vermont (File No. BRL-20101117AKQ) IS GRANTED.
17.
IT IS FURTHER ORDERED that a copy of this NAL shall be sent, by First Class and
Certified Mail-Return Receipt Requested, to Mr. Robert T. White, Vermont Agency of Transportation,
Operations Division, 1 National Life Drive, Montpelier, VT 05633.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau


26 See 47 C.F.R. 1.1914.
5

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