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WENNES COMMUNICATIONS STATIONS, INC

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Released: December 9, 2009

Federal Communications Commission

Washington, D.C. 20554

December 9, 2009

DA 09-2571

In Reply Refer to: 1800B3-JWR
NAL/Acct. No. MB200741410069
Released: December 9, 2009
Jerrold Miller, Esq.
Miller and Neely P.C.
6900 Wisconsin Ave.
Suite 704
Bethesda, Maryland 20815
In re: KNEI-FM, Waukon, Iowa
Facility ID No. 15734
File No. BRH-20050705AAI
Application for Renewal of License

Dear Mr. Miller:
Before the Audio Division is a March 13, 2007, Petition for Reconsideration (the "Response")
filed on behalf of Wennes Communications Stations, Inc. (the "Licensee") licensee of Station KNEI-FM,
Waukon, Iowa (the "Station"). The Response seeks cancellation or substantial reduction of the February
13, 2007, Notice of Apparent Liability for Forfeiture (“NAL”)1 in the amount of seven thousand dollars
($7,000), to Licensee for willfully violating Section 73.3539 of the Commission's Rules (“Rules”) and for
willfully and repeatedly violating Section 301 of the Communications Act of 1934, as amended (“Act”)
for its failure to timely file a license renewal application (the "Application") and for unauthorized
operation of the Station after its license had expired.2 For the reasons set forth below, we cancel the
monetary forfeiture issued on February 13, 2007, and assess Licensee a 25 percent late-fee penalty for its
late filing.
Background. 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 KNEI-FM's license
should have been filed by October 1, 2004. No such application was filed, and the Station's license expired
on February 1, 2005. Accordingly, in a June 24, 2005, letter (the "Staff Letter"), the staff informed Licensee
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 were deleted from the Commission's data base. The Licensee was advised that any
further operation of the Station was unauthorized and must cease immediately. Subsequent to receipt of the
Staff Letter, on July 1, 2005, the Licensee filed a request for special temporary authorization ("STA") to


1 Wennes Communications Stations, Inc., Memorandum Opinion and Order and Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 2772 (MB 2007).
2 47 C.F.R. § 73.3539; 47 U.S.C. § 301.
3 47 C.F.R. § 73.3539(a).

continue operations and on July 5, 2005, tendered the captioned license renewal application. The staff granted
the STA on July 14, 2005, and it was to expire on January 14, 2006; however, the Licensee filed a request for
extension of the STA on December 13, 2005.4 On February 13, 2007, the staff advised Licensee of its
apparent Liability for a forfeiture of $7,000 for failure to file a timely renewal application for the Station
and for unauthorized operation of the Station after its license expired. Licensee filed its Response on
March 13, 2007.
In its Response, Licensee states that the NAL is incorrect in several significant matters addressed
therein, and attributes the Application’s late filing to its first time using on-line filing, doing so without the
benefit of counsel, and the consequent unsuccessful attempt to pay the filing fee. Specifically, Licensee
states that, contrary to the NAL’s assertion, it did not receive the Staff Letter, although it did receive
similar letters concerning other Wennes stations, which was the first indication to Licensee that there
might be a problem with KNEI-FM's renewal application. Licensee states that its subsequent check of
CDBS showed that the Station's call letters had not been deleted, and that the application was in "Ready"
status, indicating that the application had been filed, but that the Commission had not received the
licensee's fee payment.
Recognizing that the Station license had expired, Licensee states that on July 5, 2005, its
communications counsel submitted a request for STA, and a separate request for waiver of the application
filing deadline,5 to allow KNEI-FM to continue broadcast operations. Licensee states that, contrary to the
NAL’s assertion, the waiver request also contained the explanation for the Application’s late-filing.
Licensee states that the STA request demonstrated that the application was filed on September 30, 2004,
prior to the required filing date, in that, the application was assigned File Number "[ARN]20040930BES";
Licensee acknowledges that it did not properly tender the requisite filing fee with its September 30, submission.
Licensee states that the staff’s July 14, 2005, grant of its STA request described its attempt to properly file
the Application.
Licensee states that the Commission failed to consider its good faith effort to timely file the
Application and its history of compliance with the Rules. In sum, Licensee avers that the proposed
forfeiture is improper and excessive because it is premised on incorrect factual findings, and that a simple
reminder or a bill for payment, pursuant to Section 1.1116(b) of the Rules, could have resulted in the
proper payment of the filing fee and the Application being timely filed.
Discussion. We have reviewed the record in this case and the Commission’s data bases, and we
find that Licensee did in fact tender a license renewal application for the Station on September 30, 2004,
but failed to pay the requisite filing fee. In addition, we note that Licensee recognized its original
application was not properly filed and re-filed its renewal application with a fee and provided with its
STA request an explanation about its error prior to any Commission action on its license renewal
application. For the reasons set forth below, we will cancel the NAL and impose a 25% penalty as
provided in Section 1.1116 of the Rules.
Licensee maintains that it should simply have been billed for the defective filing fee rather than
issued an NAL in this case. We agree that, under Section 1.1116(a) of the Rules, if the defective fee is
discovered within 30 days of filing, the application is dismissed and can be refiled with a new filing date.
If the defective fee is discovered after 30 days have passed and the application has not been “forwarded to


4 File No. 20051213ADL. The staff dismissed the STA extension request as moot when it granted the KNEI-FM
license renewal application.
5 The staff dismissed the waiver request as moot in the NAL.
2

Commission staff for substantive review,” pursuant to Section 1.1116(b) of the Rules, a filer is billed the
fee amount due plus a 25 percent penalty. Under current electronic application filing procedures, the
September 30, 2004, submission was never “forwarded to Commission staff for substantive review”
because it did not contain the requisite filing fee. To the extent that the Rules provide that the
Commission's recourse, once 30 days have elapsed from the date an application is submitted with no fee,
is to bill the applicant retroactively and impose the 25 percent penalty,6 we will do so here. In light of
this disposition, we need not address Licensee's remaining arguments.
Conclusion/ Action. In view of the foregoing, Wennes Communications Stations, Inc.’s March
13, 2007, response to our February 13, 2007, NAL in the amount of $7,000 IS GRANTED, and the Notice
of Apparent Liability (NAL/Acct. No. MB-200741410069) for violation of Section 73.3539 of the
Commission's Rules and Section 301 of the Communications Act of 1934, as amended, is HEREBY
CANCELLED. Pursuant to Section 1.1116(b) of the Rules, Wennes Communications Stations, Inc. will
be assessed a penalty charge equal to 25 percent of the filing fee, in addition to the filing fee. Therefore,
Wennes Communications Stations, Inc. will be billed a total of $187.50 under separate cover.


Sincerely,
Peter H. Doyle, Chief
Audio Division
Media Bureau

cc: Wennes Communications Stations, Inc.



6 See Establishment of a Fee Collection Program to Implement the Provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985
, Report and Order, 2 FCC Rcd 947, 957, Supplemental Order, 2 FCC Rcd 1882 (1987),
recon. granted in part, 3 FCC Rcd 5987 (1988), aff'd sub nom. Brown v. FCC, 888 F.2d 898 (D.C. Cir. 1989) (“On
further review, we believe that a clearer demarcation point is necessary to avoid industry confusion and uncertainty
as to the consequences of an insufficient fee payment. Generally, when applications are received, tracking
information is put into a data base. Although some bureaus and offices may enter data faster than others [sic], the
process generally takes approximately 30 days. During this same 30 day period we will expect bureau and office
staff to take a second review of the fee and enter identifying codes into the fee system. Thus, this timeframe allows
the Commission to complete its initial review of fees and return unprocessable applications before authorizations are
granted. Therefore, fee underpayments identified by Commission staff in 30 calendar days or less from the time of
receipt of the application at the Commission or Treasury lockbox bank will result in dismissal of the application and
its return to the applicant. . . . Underpayments identified after this time will result in a bill to the applicant that
includes a penalty charge of 25 percent of the amount due.”). See also Leon F. Petterson, Letter, 22 FCC Rcd 14021
(MB 2007) (after 30 days, recourse when application is submitted without appropriate filing fee is to bill the
applicant retroactively for a 25 percent penalty).
3

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