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UA-ASU-TSU EDUCATIONAL RADIO CORPORATION

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Released: December 7, 2009

Federal Communications Commission

DA 09-2546

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

UA-ASU-TSU Educational Radio Corporation

)
Facility ID No. 6125
)
NAL/Acct. No. MB-2006414140095
Licensee of
)
File No. BRED-20040121ABC
Station WAPR(FM)
)
FRN: 0001752955
Selma, Alabama

FORFEITURE ORDER

Adopted: December 4, 2009

Released: December 7, 2009

By the Chief, Audio Division, Media Bureau:

I.

INTRODUCTION

1. In this Forfeiture Order (“Order”), we issue a monetary forfeiture in the amount of one
thousand five hundred dollars ($1,500) to UA-ASU-TSU Educational Radio Corporation (“Licensee”),
licensee of Station WAPR(FM), Selma, Alabama ( “Station”), for willfully violating Section 73.3539 of
the Commission’s Rules (“Rules”) for its failure to file a timely license renewal application for the
Station.1

II.

BACKGROUND

2. On January 29, 2007, the Bureau issued a Notice of Apparent Liability for Forfeiture
(“NAL”) to Licensee in the amount of one thousand five hundred dollars ($1,500), for this violation.2
Licensee filed a Petition for Reconsideration of the Proposed Forfeiture (“Petition”) on February 28,
2007.
3. As noted in the NAL, Licensee’s renewal application for the Station’s pertinent license term
should have been filed on December 1, 2003, four months prior to the Station’s April 1, 2004, expiration
date.3 Licensee filed the renewal application on January 21, 2004, without explaining the circumstances
of the late filing. On January 29, 2007, the staff advised Licensee of its apparent liability for a forfeiture
of one thousand five hundred dollars for failure to timely file the Station’s renewal application. In
response, Licensee filed the subject Petition on February 28, 2007.
4. In support of its Petition, Licensee states that its failure to file properly the renewal
applications was (1) inadvertent because it thought it had been properly filed, and (2) may have been the
result of technical difficulties in the Commission’s electronic filing system, known as CDBS. Licensee
asserts that these reasons warrant a cancellation of the assessed forfeiture.


1 47 C.F.R. § 73.3539.
2 UA-ASU-TSU Educational Radio Corporation, Memorandum Opinion and Order and Notice of Apparent Liability,
22 FCC Rcd 1115 (MB 2007).
3 See 47 C.F.R. §§ 73.1020, 73.3539(a).

Federal Communications Commission

DA 09-2546

III.

DISCUSSION

5. The forfeiture amount proposed in this case was assessed in accordance with Section 503(b)
of the Act,4 Section 1.80 of the Rules,5 and the Commission’s Forfeiture Policy Statement.6 In assessing
forfeitures, Section 503(b)(2)(E) of the Act requires that we take into account 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.7
6. Licensee asserts that it should be excused from liability because its failure properly to file the
renewal application was inadvertent. In support of this assertion, Licensee includes with its Petition a
statement from its Director of Engineering, David M. Baughn, who is responsible for all of its FCC
application filings.8 In his statement, Mr. Baughn indicates that he believed that had electronically filed
the Station’s renewal application in a timely fashion. Mr. Baughn further explains that on January 21,
2004, he noticed that the Station WAPR(FM) license renewal filing was not reflected in CDBS, and he
immediately tried again and succeeded in filing. As the Commission has held, however, violations
resulting from inadvertent error or failure to become familiar with the FCC's requirements are willful
violations.9 In the context of a forfeiture action, “willful” does not require a finding that the rule violation
was intentional. Rather, the term “willful” means that the violator knew that it was taking (or in this case,
not taking) the action in question, irrespective of any intent to violate the Rules.10
7. Licensee also asserts that technical difficulties within CDBS may have interfered with the
Commission’s timely receipt of the renewal application. Licensee argues that the Commission should
determine whether the Station’s renewal filing was timely made but somehow lost due to the CDBS
system problems at the time, and if so, vacate the forfeiture. In support of this claim, Licensee submits:
(1) a copy of a Public Notice11 released by the Bureau on November 21, 2003, extending the renewal
application deadline for Alabama and Georgia radio broadcast licensees by one week due to difficulties
with CDBS; and (2) Mr. Baughn’s statement detailing his difficulty with filing the Station’s application.
In his statement, Mr. Baughn explains that he had unusual difficulties with the CDBS system in


4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines
, Report and Order, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
7 47 U.S.C. § 503(b)(2)(E).
8 See Petition, Exhibit 1.
9 See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088 (1992). See also
Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387 (1991), recon
denied,
7 FCC Rcd 3454 (1992) (“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”).
10 See Five Star Parking d/b/a Five Star Taxi Dispatch, Forfeiture Order, 23 FCC Rcd 2649, 2651 (EB 2008)
(declining to reduce or cancel forfeiture for late-filed renewal based on licensee’s administrative error); Southern
California,
6 FCC Rcd at 4387. See also Domtar Industries, Inc., Notice of Apparent Liability for Forfeiture, 21
FCC Rcd 13811, 13815 (EB 2006); National Weather Networks, Inc., Notice of Apparent Liability for Forfeiture, 21
FCC Rcd 3922, 3925 (EB 2006).
11 See Media Bureau Announces Extension of Certain Filing Deadlines, Public Notice, 18 FCC Rcd 24370, 24370
(MB 2003) (noting that CDBS users had been experiencing electronic filing difficulties following “planned system
upgrade and maintenance activities” and extending the filing deadline to “provide a reasonable opportunity for
impacted licensees and CDBS users to timely file [their renewal applications]”).
2

Federal Communications Commission

DA 09-2546

November 2003, and while he cannot determine with certainty the cause, he believes that the Station
WAPR(FM) license renewal filing was the “victim of the CDBS problems at the time or of my frustration
and confusion caused by the unresponsiveness of the system.”12 Licensee notes that Mr. Baughn
successfully filed other applications for Stations WVUA, Tuscaloosa, Alabama,13 WUAL-FM,
Tuscaloosa, Alabama, 14 and WQPR(FM), Muscle Shoals, Alabama,15 within the time extension provided
in the Public Notice, to show that he was exercising reasonable diligence and taking appropriate steps to
accomplish the various renewal filings. This documentation not only fails to substantiate Licensee’s
claim that the Commission was responsible for its failure to timely file its renewal application, but in fact,
works against it. First, if there were technical difficulties with CDBS, the Bureau compensated for them
by extending the renewal application filing deadline via the Public Notice. Licensee’s application did not
meet this extended deadline.16 Licensee’s engineer does not claim that he ever received an “error” report
from the system when attempting to file the Station’s renewal application. He also does not indicate that
he had any difficulty filing Licensee’s other renewal applications. Finally, the screen shot provided by
Licensee in an exhibit to its Petition indicates that the Station’s renewal application was “created” in
CDBS on November 25, 2003, but was not “filed” until January 21, 2004. This seems to indicate that
CDBS was working properly but that Licensee’s engineer failed to complete the filing process by hitting
the “File Form” button after he “created” the document.17 Given these considerations, we can only
conclude that it was Licensee that was responsible for the failure to file its renewal application before the
filing deadline, rather than some unspecified “glitch” in CDBS.18
8. We have considered Licensee’s response to the NAL in light of the above statutory factors,
our Rules, and the Forfeiture Policy Statement. We conclude that Licensee willfully19violated Section
73.3539 of the Rules, and that no mitigating circumstances warrant cancellation or further reduction of
the proposed forfeiture amount.

IV.

ORDERING CLAUSES

9. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of
1934, as amended, and Sections 0.283 and 1.80 of the Commission’s Rules,20 that UA-ASU-TSU
Educational Radio Corporation, SHALL FORFEIT the sum of one thousand five hundred dollars ($1,500)
to the United States for willfully violating Section 73.3539 of the Commission’s Rules.


12 Petition, Exhibit 1..
13 File No. BRED-20031125AKE.
14 File No. BRED-20031204AGR.
15 File No. BRED-20031204AGO
16 See Dewey D. Lankford, Forfeiture Order, 24 FCC Rcd 4558, 4560 (MB 2009) (rejecting licensee's claim that its
failure to timely file its application was due to a “glitch” in CDBS).
17 See Petition, Exhibit 2.
18 See, e.g.,Union-Carolina Broadcasting Co., Inc., Letter, 22 FCC Rcd 14017, 14018 (MB 2007) (rejecting
licensee’s argument that its failure to timely file its application was due to technical difficulties in CDBS).
19 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. 47 U.S.C. § 312(f)(1). The legislative history of Section 312(f)(1)
of the Act clarifies that this definition of willful applies to Sections 312 and 503(b) of the Act, H.R. REP. No. 97-
765, 51 (Conf. Rep.), and the Commission has so interpreted the terms in the Section 503(b) context. See Southern
California,
6 FCC Rcd at 4387-88.
20 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.283, 1.80.
3

Federal Communications Commission

DA 09-2546

10. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the
Commission's Rules within 30 days of the release of this Forfeiture Order. If the forfeiture is not paid
within the period specified, the case may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act.21 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).22
11. IT IS FURTHER ORDERED, that a copy of this Forfeiture Order shall be sent by Certified
Mail Return, Receipt Requested, and by First Class Mail to: UA-ASU-TSU Educational Radio
Corporation, Box 870370, Phifer Hall, University of Alabama, Tuscaloosa, Alabama 35487, and to its
counsel: M. Scott Johnson, Esq., Fletcher, Heald and Hildreth, PLC, 1300 North 17th Street, 11th Floor,
Arlington, Virginia 22209.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau


21 47 U.S.C. § 504(a).
22 See 47 C.F.R. § 1.1914.
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