Federal Communications Commission
Washington, D.C. 20554
March 14, 2012
DA 12-404
In Reply Refer To:
1800B3-JD
NAL/Acct. No. MB-200641410324
FRN: 0001773431
Released: March 14, 2012
Donald E. Martin, P.C.
P.O. Box 8433
Falls Church, VA 22041
In re: WSMC-FM
Collegedale, Tennessee
Facility ID No. 61269
File No. BRED-20040329AKC
Petition for Reconsideration
Dear Mr. Martin:
We have before us a Petition for Reconsideration (“Petition”) filed on September 12, 2011, by
Southern Adventist University (“SAU”), licensee of Station WSMC-FM in Collegedale, Tennessee
(“Station”). The Petition requests reconsideration of a
Forfeiture Order released on August 11, 2011,1
issuing a monetary forfeiture in the amount of eight thousand dollars ($8,000) to SAU for its willful and
repeated violation of Section 73.3527 of the Commission’s Rules (“Rules”).2 For the reasons discussed
below, we deny SAU’s Petition.
Background.
On May 3, 2007, the Bureau issued a Notice of Apparent Liability for Forfeiture
(“
NAL”) proposing a forfeiture amount of ten thousand dollars ($10,000) to SAU for its apparent willful
and repeated violation of Section 73.3527 of the Rules for failure to retain all required documentation in
the Station’s public inspection file; the Bureau granted the Station’s license renewal application on that
same day.3 On June 4, 2007, SAU filed a response requesting that the forfeiture be cancelled or reduced
(Response”). In its Response, SAU did not dispute that it failed to place at least 22 missing
issues/programs lists in the Station’s public file, but sought reduction or cancellation of the proposed
forfeiture because it was allegedly not imposed within the time limits set by Section 503(b)(6) of the
Communications Act of 1934 (“Act”).4 In the
Forfeiture Order, the Bureau rejected SAU’s Section
503(b)(6) argument but reduced the forfeiture amount to $8,000 based on SAU’s history of compliance
with the rules.5 SAU subsequently filed the subject Petition, repeating its earlier argument that the
forfeiture is statutorily barred by Section 503(b)(6) of the Act.6
1
Southern Adventist University, Forfeiture Order, 26 FCC Rcd 11254 (MB 2011) (“
Forfeiture Order”).
2 47 C.F.R. § 73.3527.
3
Southern Adventist University, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture,
22 FCC Rcd 8478 (MB 2007) (adopted on May 1, 2007) (“
NAL”).
4 47 U.S.C. § 503(b)(6).
5
Forfeiture Order, 26 FCC Rcd at 11256.
6 Petition at 2.
Discussion. The Commission will consider a petition for reconsideration only when the petitioner
shows either a material error in the Commission’s original order or raises changed circumstances or
additional facts not known or existing at the time of the petitioner’s last opportunity to present such
matters.7 It is settled Commission policy that petitions for reconsideration are not to be used for the mere
re-argument of points previously advanced and rejected.8 Here, while SAU largely restates its earlier
argument, we will address its contention because SAU presents evidence unavailable at the time it filed
its Response: a Bureau disposition issued on August 3, 2011.9
Under Section 503(b)(6)(A) of the Act, a forfeiture cannot be imposed on a person holding a
broadcast license if the violation charged occurred: (i) more than 1 year prior to the date of issuance of the
required notice or notice of apparent liability; or (ii) prior to the date of commencement of the current
term of such license, whichever is earlier.10 In support of its argument that the forfeiture amount is
statutorily barred by Section 503(b)(6)(A) because the grant action occurred on the day the order was
adopted, SAU cites the
Swift Letter. The Bureau in that case adopted an
NAL and granted the Station’s
license renewal application on March 16, 2007; however, it did not release the
NAL until March 19, 2007.
In the
Swift Letter, the Bureau found that the
NAL was imposed for violations occurring prior to the
commencement date of the current license term – which commenced on March 16, 2007 when the license
renewal application was granted –and more than one year prior to the issuance of the
NAL. The Bureau
concluded that therefore a forfeiture was statutorily barred by Section 503(b)(6)(A). Accordingly, the
Bureau cancelled the forfeiture order. SAU contends that the Bureau’s action in this case is inconsistent
with the
Swift Letter.
SAU’s contention is misguided. Pursuant to our Rules, non-hearing or interlocutory actions
generally are effective upon the document’s release, not its adoption.11 Thus, the adoption date of an
order such as the
NAL here does not automatically trigger the grant of a renewal application; rather, an
independent, albeit ministerial, Commission action is required to grant the application, which normally
occurs upon release of an order granting an application. Here, the Bureau adopted the
NAL on May 1,
2007, but it did not grant the license renewal application until May 3, 2007, the day the
NAL was released.
Therefore, the Station’s new license term did not begin until May 3, 2007. The Commission has held that
the simultaneous issuance of an
NAL and the grant of a renewal application in a single document does not
trigger the one-year statute of limitation provisions of Section 503(b)(6).12 Thus, this case clearly is
distinguishable from the
Swift Letter. Therefore, we find that the additional facts SAU presents in the
Petition do not evidence a material error in the
Forfeiture Order or changed circumstances that would
otherwise warrant reconsideration.
7
See 47 C.F.R. § 1.106;
WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964),
aff’d sub nom.
Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965),
cert. denied, 387 U.S. 967 (1966);
see also National
Association of Broadcasters, Memorandum Opinion and Order, 18 FCC Rcd 24414, 24415 (2003).
8
Knoxville Broadcasting Corp., 87 FCC 2d 1103, 1107 (1981).
9
Richard F. Swift, Esq., Letter, 26 FCC Rcd 11085 (MB 2011)(“
Swift Letter”).
10
See 47 U.S.C. 503(b)(6)(A).
11
See 47 C.F.R. § 1.102(b)(1).
12
See Emmis Broadcasting Corporation of Boston, Memorandum Opinion and Order and Forfeiture Order, 11 FCC
Rcd 8541, 8543 (1996).
2
Conclusion. Accordingly, IT IS ORDERED, that the Petition for Reconsideration filed on
September 12, 2011, by Southern Adventist University, IS DENIED.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
cc: Southern Adventist University
3
