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Renewal of License, WSBU(FM), St. Bonaventure, NY

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Released: September 26, 2011

Federal Communications Commission

DA 11-1603

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Application of
)
)

St. Bonaventure University

)
Facility I.D. No. 62106
)
NAL/Acct. No. MB-201141410003
For Renewal of License for
)
FRN: 0020240347
Station WSBU(FM)
)
File No. BRED-20101007AAM
St. Bonaventure, New York
)

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 St. Bonaventure
University (the "Licensee") for renewal of its license for Station WSBU(FM), St. Bonaventure, New York
(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 engaging in unauthorized operation of the
Station after its authorization 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 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 WSBU(FM)'s license
should have been filed by February 1, 2006. No such application was filed, and the Station's license
expired on June 1, 2006. Accordingly, on September 28, 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


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 11-1603

that any operation of the station was then unauthorized and must cease immediately.6 Upon receipt of
the License Expiration Letter, on October 4, 2010, the Licensee filed a request for special temporary
authority ("STA") to continue Station operations pending consideration of the untimely filed renewal
application,7 and shortly thereafter filed the subject renewal application. The staff granted the STA
Request on October 13, 2010, and it was to expire on April 13, 2010.8 In the STA Request, the Licensee
indicates that WSBU(FM) is a student-run station with yearly staff turnover, and nobody currently
working at the station would have received notification that the Station's license renewal application was
due in 2006. It also indicates that it did not receive any "follow-up" information regarding the Station's
renewal prior to receiving the License Expiration Letter.

III. DISCUSSION

3.
Proposed Forfeiture. In this case, the Licensee has failed to file a timely license renewal
application for Station WSBU(FM), 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 June 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 St. Bonaventure University, Ref. 1800B3-KAW (MB Sep. 28, 2010) (the "License Expiration Letter").
7 See File No. BLSTA-20101004ACF (the "STA Request").
8 Letter to Mr. Roger Keener, St. Bonaventure University, Ref. 1800B3 (MB Oct. 13, 2010). On April 9, 2011, the
Licensee filed a request for extension of the STA, which remains pending. See File No. BELSTA-20110408ACB.
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 11-1603

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 its license had expired on June 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 at the
student-run station, 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, we propose a
forfeiture for the full $3,000 amount for the failure to file a timely renewal application and STA request,
but reduce the proposed forfeiture for the unauthorized operation from the $10,000 base amount to
$4,000.20 Thus, we propose a forfeiture in the total amount of $7,000.21
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


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 ("Southern California") (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 See, e.g., Discussion Radio Incorporated, Memorandum Opinion and Order, 19 FCC Rcd 7433, 7438 (2004);
Gospel Media, Inc., Letter, 19 FCC Rcd 15600 (MB 2004).
21 See, e.g., Elmira College, Memorandum Opinion and Order and Notice of Apparent Liability, 24 FCC Rcd 12646,
12648 (MB 2009) ($7,000 forfeiture proposed for late renewal filing and unauthorized operation lasting nearly three
years); Universal Broadcasting, Inc., Memorandum Opinion and Order and Notice of Apparent Liability, 24 FCC
Rcd 12656, 12658 (MB 2009) ($7,000 forfeiture proposed for late renewal filing and unauthorized operation lasting
more than three years).
22 47 U.S.C. 309(k).
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Federal Communications Commission

DA 11-1603

have been no other violations which, taken together, constitute a pattern of abuse, we are to grant 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 violation 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, constitute a pattern of abuse.25 Further,
we find that Station WSBU(FM) served the public interest, convenience, and necessity during the subject
license term. We will grant the license renewal application shortly after the release of this Order.

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 St. Bonaventure University is hereby
NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand dollars
($7,000) for its apparent willful violation of Section 73.3539 of the Commission's Rules and its apparent
willful and repeated violation of Section 301 of the Communications Act.
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, St. Bonaventure University 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.


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 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., 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).
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Federal Communications Commission

DA 11-1603

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 WSBU(FM) IS REINSTATED.
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. Roger Keener, St. Bonaventure University, P.O. Drawer
O, St. Bonaventure, NY 14778.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau


26 See 47 C.F.R. 1.1914.
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