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Western Slope Communications, LLC

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Released: July 10, 2013

Federal Communications Commission

DA 13-1543

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Western Slope Communications, LLC
)
File No.: EB-FIELDWR-12-00003820
Licensee of:
)
File No.: EB-FIELDWR-12-00003822
)
NAL/Acct. No.: 201332800006
Station KRGS, Rifle, Colorado
)
FRN: 0004259552
Station KRVG, Glenwood Springs, Colorado
)
Facility ID Nos.: 71960 and 88077

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: July 9, 2013

Released: July 10, 2013

By the District Director, Denver Office, Western Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture (NAL), we find that Western Slope
Communications, LLC (Western Slope), licensee of Station KRGS, Rifle, Colorado, and Station KRVG,
Glenwood Springs, Colorado (Stations), apparently willfully and repeatedly violated Section 73.3526 of the
Commission's rules (Rules)1 by failing to maintain complete public inspection files. We conclude that
Western Slope is apparently liable for a forfeiture in the amount of twenty-five thousand dollars ($25,000).

II.

BACKGROUND

2.
On August 21, 2012, an agent from the Enforcement Bureau's Denver Office (Denver
Office) conducted an inspection of the Stations at their main studios co-located at 818 Taughenbaugh Blvd.,
Suite 107, Rifle, Colorado. The Denver agent reviewed the Stations' public inspection files and found that
the files were each missing issues/programs lists for twenty (20) quarters.2 Each station was required to
retain twenty-seven (27) quarters of lists since the Stations' last renewals, which were granted on December
21, 2005.
3.
On November 1, 2012, the Denver Office issued Notices of Violation to Western Slope
concerning the KRGS and KRVG inspections.3 In its Consolidated NOV Response to the KRGS NOV and
KRVG NOV,4 Western Slope acknowledged that the issues/programs lists for the Stations were not in the
public inspection files located in the Rifle studio at the time of the inspection.5 Western Slope stated that it
quickly located the documents in their entirety at the studio of a co-owned station in Grand Junction,


1 47 C.F.R. 73.3526.
2 Specifically, the Stations were missing the issues/programs lists for the following quarters: fourth quarter of 2005;
first through fourth quarters of 2006, 2007, 2008 and 2009; and first, second, and fourth quarters of 2011.
3 See Western Slope Communications, LLC, Notice of Violation, V201332800008 (Nov. 1, 2012) (KRGS NOV);
Western Slope Communications, LLC, Notice of Violation, V201332800007 (Nov. 1, 2012) (KRVG NOV).
4 See Consolidated NOV Response of Western Slope Communications, LLC (filed Nov. 20, 2012) (on file in EB-
FIELDWR-12-00003820) (Consolidated NOV Response).
5 Consolidated NOV Response at 4.

Federal Communications Commission

DA 13-1543

Colorado, and that because its Grand Junction stations are part of the same employment unit as the Stations,
Western Slope believes an employee inadvertently misplaced the lists at the wrong studio.6 Western Slope
further stated that the oversight had been corrected and included copies of all the required issues/programs
lists for both Stations for the applicable license terms in its Consolidated NOV Response.7

III.

DISCUSSION

4.
Section 503(b) of the Communications Act of 1934, as amended (Act), provides that any
person who willfully or repeatedly fails to comply substantially with the terms and conditions of any license,
or willfully or repeatedly fails to comply with any of the provisions of the Act or of any rule, regulation, or
order issued by the Commission thereunder, shall be liable 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 The Commission may also assess a forfeiture for
violations that are merely repeated, and not willful.12 The term "repeated" means the commission or
omission of such act more than once or for more than one day.13

A.

Failure to Maintain the Issues and Programs Lists in the Public Inspection File

5.
Section 73.3526(a)(2) of the Rules requires that broadcast stations maintain for public
inspection a file containing materials listed in that section.14 Section 73.3526(c)(1) of the Rules specifies
that the file shall be available for public inspection at any time during regular business hours,15 and Section
73.3526(e)(12) of the Rules specifically requires licensees to place in their public inspection file for each
calendar quarter a list of programs that have provided the station's most significant treatment of community


6 Id.
7 Id., Exhibit B.
8 47 U.S.C. 503(b).
9 47 U.S.C. 312(f)(1).
10 H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision [inserted in Section 312] defines the terms
`willful' and `repeated' for purposes of section 312, and for any other relevant section of the act (e.g., Section 503)
. . . . As defined[,] . . . `willful' means that the licensee knew that he was doing the act in question, regardless of
whether there was an intent to violate the law. `Repeated' means more than once, or where the act is continuous, for
more than one day. Whether an act is considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in Sections 312 and 503, and are consistent with
the Commission's application of those terms . . . .").
11 See, e.g., Application for Review of Southern California Broad. Co., Memorandum Opinion and Order, 6 FCC
Rcd 4387, 4388, para. 5 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
12 See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
1362, para. 10 (2001) (Callais Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable television operator's
repeated signal leakage).
13 Section 312(f)(2) of the Act, 47 U.S.C. 312(f)(2), which also applies to violations for which forfeitures are
assessed under Section 503(b) 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." See Callais Cablevision, Inc., 16 FCC Rcd at 1362,
para. 9.
14 47 C.F.R. 73.3526(a)(2).
15 47 C.F.R. 73.3526(c)(1).
2

Federal Communications Commission

DA 13-1543

issues during the preceding three month period.16 This list is known as the issues/programs lists and must
include a brief narrative describing what issues were given significant treatment and the programming that
provided this treatment. Copies of the issues/programs lists must be retained in the public inspection file
until final action has been taken on the station's next license renewal application.17 The license renewals for
the Stations were granted on December 21, 2005, and expired April 1, 2013.18 At the time of the August 21,
2012, inspection, the Stations' public inspection files were each missing twenty (20) of twenty-seven (27)
quarters of radio issues/programs lists. In its Consolidated NOV Response, Western Slope acknowledged
the missing issues/programs lists for both Stations.19 Based on the evidence before us, we find that Western
Slope apparently willfully and repeatedly violated Section 73.3526 of the Rules by failing to maintain the
issues/programs lists and make them available in the Stations' public inspection files.

B.

Proposed Forfeiture Amount

6.
Pursuant to the Commission's Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for violating the public file rules is $10,000.20 In assessing the monetary
forfeiture amount, we must also take into account the statutory factors set forth in Section 503(b)(2)(E) of
the Act, which include the nature, circumstances, extent, and gravity of the violations, and with respect to
the violator, the degree of culpability, any history of prior offenses, ability to pay, and other such matters as
justice may require.21 Applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory
factors to the instant case, we find no downward adjustments are warranted, but conclude that an upward
adjustment is warranted because of the large number of issues/programs lists missing from the Stations'
public inspection files.22 Accordingly, we propose a forfeiture amount of twelve thousand five hundred
dollars ($12,500) for each of the Stations, rather than the base forfeiture amount. Applying the Forfeiture
Policy Statement
, Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that
Western Slope is apparently liable for a forfeiture in the amount of twenty-five thousand dollars ($25,000).

IV.

ORDERING CLAUSES

7.
Accordingly,

IT IS ORDERED

that, pursuant to Section 503(b) of the Communications
Act of 1934, as amended, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Commission's rules,
Western Slope Communications, LLC, is hereby

NOTIFIED

of this

APPARENT LIABILITY FOR A
FORFEITURE

in the amount of twenty-five thousand dollars ($25,000) for violation of Section 73.3526
of the Rules.23


16 47 C.F.R. 73.3526(e)(12).
17 Id.
18 Both Stations have renewal applications pending. See File No. BR-20121203BQX (accepted for filing Dec. 5,
2012) (for KRGS); File No. BRH-20121203BQU (accepted for filing Dec. 5, 2012) (for KRVG).
19 See Consolidated NOV Response at 4.
20 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) (Forfeiture Policy Statement), recons. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. 1.80.
21 47 U.S.C. 503(b)(2)(E).
22 See Gulf-California Broad. Co., Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 11421 (Enf. Bur. 2012)
(forfeiture of $15,000 proposed for licensee who failed to place twenty-five (25) consecutive issues/programs lists in
a station's public inspection file) (forfeiture paid).
23 47 U.S.C. 503(b); 47 C.F.R. 0.111, 0.204, 0.311, 0.314, 1.80, 73.3526.
3

Federal Communications Commission

DA 13-1543

8.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Commission's rules,
within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture,
Western Slope Communications, LLC,

SHALL PAY

the full amount of the proposed forfeiture or

SHALL
FILE

a written statement seeking reduction or cancellation of the proposed forfeiture.
9.
Payment of the forfeiture must be made by check or similar instrument, wire transfer, or
credit card, and must include the NAL/Account number and FRN referenced above. Western Slope shall
also send electronic notification on the date said payment is made to WR-Response@fcc.gov. Regardless
of the form of payment, a completed FCC Form 159 (Remittance Advice) must be submitted.24 When
completing the FCC Form 159, enter the Account Number in block number 23A (call sign/other ID) and
enter the letters "FORF" in block number 24A (payment type code). Below are additional instructions
you should follow based on the form of payment you select:

Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000,
or sent via overnight mail to U.S. Bank Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101.

Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank at
(314) 418-4232 on the same business day the wire transfer is initiated.

Payment by credit card must be made by providing the required credit card information on FCC
Form 159 and signing and dating the Form 159 to authorize the credit card payment. The
completed Form 159 must then be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
10.
Any request for making full payment over time under an installment plan should be sent
to: Chief Financial Officer--Financial Operations, Federal Communications Commission, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554.25 If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by
e-mail, ARINQUIRIES@fcc.gov.
11.
The written statement seeking reduction or cancellation of the proposed forfeiture, if
any, must include a detailed factual statement supported by appropriate documentation and affidavits
pursuant to Sections 1.16 and 1.80(f)(3) of the Rules.26 Mail the written statement to Federal
Communications Commission, Enforcement Bureau, Western Region, Denver Office, 215 S. Wadsworth
Blvd., Suite 303, Lakewood, Colorado, 80226, and include the NAL/Acct. No. referenced in the caption.
Western Slope Communications, LLC, also shall e-mail the written response to WR-Response@fcc.gov.
12.
The Commission will not consider reducing or canceling a forfeiture in response to a claim
of inability to pay unless the petitioner 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 petitioner's current financial status.


24 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
25 See 47 C.F.R. 1.1914.
26 47 C.F.R. 1.16, 1.80(f)(3).
4

Federal Communications Commission

DA 13-1543

Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial
documentation submitted.
13.

IT IS FURTHER ORDERED

that a copy of this Notice of Apparent Liability for
Forfeiture shall be sent by both Certified Mail, Return Receipt Requested, and first class mail to Western
Slope Communications, LLC, at 190 Turner Drive, Suite G, Durango, Colorado 81303, and to its counsel, at
Fletcher, Heald & Hildreth, PLC, 1300 North 17th Street, 11th Floor, Arlington, Virginia 22209.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
5

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