Federal Communications Commission
DA 12-1205
Before the
Federal Communications Commission
Washington, D.C. 20554
)In the Matter of
)
)
TOCCOA FALLS COLLEGE
)Facility ID No.77327
)
NAL/Acct. No. MB201241410025
Licensee of Station WTXR(FM)
)
FRN: 0006338750
Toccoa Falls, Georgia
)
File No. BRED-20111201FOP
FORFEITURE ORDER
Adopted: July 27, 2012
Released: July 27, 2012
By the Chief, Audio Division, Media Bureau:I.
INTRODUCTION
1.In this Forfeiture Order (“Order”), we issue a monetary forfeiture in the amount of ten
thousand dollars ($10,000) to Toccoa Falls College (“the Licensee”), licensee of radio station WTXR(FM),
Toccoa Falls, Georgia ( the “Station”), for its willful and repeated violations of Section 73.3527 of the
Commission’s Rules (“Rules”)1 by failing to properly maintain a public file for the Station.
II.
BACKGROUND
2.On May 2, 2012, the Media Bureau (“Bureau”) issued a Notice of Apparent Liability for
Forfeiture (“NAL”), in the amount of $10,000 to the Licensee for the apparent violations.2 The Licensee
filed a Response to Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture
(“Response”) on May 31, 2012.
3.
On December 1, 2011, the Licensee filed an application to renew the license of the
Station. Section III, Item 3 of the license renewal application form, FCC Form 303-S, requests that the
licensee certify that the documentation required by Section 73.3527 of the Rules, as applicable, has been
placed in the station’s public inspection file at the appropriate times. The Licensee indicated “No” to that
certification, attaching an exhibit explaining that, when it was preparing to file its renewal application, it
discovered that it was missing quarterly issues/programs lists from March 2006, when the station was first
licensed, through June 2010. On May 2, 2012, the Bureau issued the NAL notifying the Licensee of its
apparent liability for a forfeiture of $10,000 for willfully and repeatedly violating Section 73.3527 of the
Rules, based on its admission that over four years of issues/programs lists were missing from the Station’s
public inspection file. On May 31, 2012, the Licensee filed its Response.
4.
In its Response, the Licensee states that: 1) there is insufficient basis for the finding that
1 47 C.F.R. § 73.3527.
2 Toccoa Falls College, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 27 FCC
Rcd 4905 (MB 2012).
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DA 12-1205
there was a “willful or repeated” violation of the Rule; 2) the forfeiture amount assessed against it is inexcess of those imposed on other licensees for violations similar to or more serious in nature than Sun
Valley’s violation;3 3) a reduction in the forfeiture amount is warranted based on its voluntary disclosure
of the public file deficiencies; and 4) sanctions imposed on student-run stations should be less than those
imposed on other licensees. The Licensee also claims that the staff violated Section 504(c) of the
Communications Act of 1934, as amended (the “Act”) because it did not immediately grant renewal upon
a preliminary finding in the NAL that the failure to maintain a public file did not merit an evidentiary
hearing.4
III.
DISCUSSION
5.The forfeiture amount proposed in this case was assessed in accordance with Section
503(b) of the Act,5 Section 1.80 of the Rules,6 and the Commission’s Forfeiture Policy Statement.7 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.8
6.
We find unpersuasive the Licensee’s argument that the failure to maintain a complete
public inspection file for 17 straight quarters at the Station does not constitute a “willful or repeated”
violation. The Act defines willful conduct as “the conscious and deliberate commission or omission of
[any] act, irrespective of any intent to violate” the law,9 and defines repeated conduct as “the commission
or omission of such act more than once or, is such commission or omission is continuous, for more than
one day.”10 Although the Licensee cites Vernon Broadcasting as an example of a forfeiture that was
cancelled for not being willful or repeated,11 that case is clearly distinguishable. There, the licensee was
able to document that it regularly inspected its facilities, and that the tower fencing violation resulted from
circumstances beyond its control.12 Here, the Licensee’s deficiencies in maintaining a complete public file
cannot similarly be attributed to circumstances outside of its control.
7.
We also reject the Licensee’s claim that the Station’s missing issues/program lists only
became a violation at the time it reported their absence in its renewal application. We have held that
failure to maintain current quarterly issues/programs lists during the term of a license constitutes an
3 The Licensee indicates that as “no member of the public will probably ever review” the public file, this violation is
less serious than others that warrant a forfeiture. See Response at 9.
4 47 U.S.C. § 504(c).
5 47 U.S.C. § 503(b).
6 47 C.F.R. 1.80.
7 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).
8 47 U.S.C. § 503(b)(2)(E).
9 47 U.S,C. § 312(f)(1).
10 47 U.S,C. § 312(f)(2).
11 Response at 4. Vernon Broadcasting, Inc. (WYGO, Corbin, KY), Memorandum Opinion and Order, 60 RR 2d
1275, 1277 (1986) (“Vernon Broadcasting”).
12 Vernon Broadcasting, 60 RR 2d at 1277. (Evidence supported theory that transmitter fencing was vandalized after
regular inspection by licensee and shortly before inspection by FCC).
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DA 12-1205
ongoing, repeated violation.13 In failing to ensure, for seventeen straight quarters, that the issues/programslists were properly filed, the Licensee repeatedly violated Section 73.3527.
8.
The harm caused by this failure, inability to provide full information to the public, exists
whether or not a member of the public requests to inspect the public inspection file.14 As we discussed at
length in Faith Christian Music Broadcast Ministries, issues/programs lists provide both the Commission
and the listening public with important information regarding the extent to which a station has met the
needs and interests of its community during the prior license term, and therefore, whether license renewal
is warranted. 15 A licensee’s responsibility to the public is not excused merely because members of the
public rarely exercise their right to inspect a station’s public files.16 The rule also is designed to facilitate
the airing of programming responsive to community needs.17 As such, these requirements are integral
components of a licensee's obligation to serve the public interest and meet its community service
obligations.18 In the Forfeiture Policy Statement, the Commission found that the omission of even a single
item (the issues/programs list) from the public inspection file “diminishes the public's ability to determine
and comment on whether the station is serving the community.”19 Thus, we find no support for the claim
that failure to maintain a public inspection file is any less serious a violation than those assessed smaller
forfeitures.
9.
The Licensee also argues that we should reduce the forfeiture because the forfeiture
amount is inconsistent with that issued to licensees in similar situations. We disagree. It is undisputed that
the Licensee’s public files were incomplete for over four years, missing all issues/programs lists for 17
consecutive quarters. The $10,000 base forfeiture issued to the Station is consistent with prior forfeitures
for similar violations.20 The past cases referenced in the Response where stations were not assessed the
base forfeiture amount can be distinguished, as the amount of information missing from the public
inspection file in those cases is much smaller than in the present case.21
13 See, e.g., Texas Educational Broadcasting Co-Operative, Inc., 26 FCC Rcd 11249, 11249 (MB 2011) (even when
files are reconstructed before licensee files application for renewal, failure to maintain complete and current
issues/program lists during license term is a continuing violation). See also Paulino Bernal Evangelism KBRN(AM)
Boerne, Texas, 21 FCC Rcd 9532, 9536 (EB 2006) (public file violations are “by their nature, continuing
violations”).
14 Wilson Broadcasting, Inc., Forfeiture Order, 22 FCC Rcd 15963 (EB 2007).
15 Faith Christian Music Broadcast Ministries, Inc., Forfeiture Order, 20 FCC Rcd 19051, 19053 (MB 2005).
16 Id.
17 See Forfeiture Policy Statement, 12 FCC Rcd at 17104-05, ¶ 39.
18 See 47 U.S.C. § 307(a).
19 See Forfeiture Policy Statement, 12 FCC Rcd at 17104-05.
20 See Phoenix Broadcasting Group, Inc., Forfeiture Order, 23 FCC Rcd 10927 (MB 2008) citing Faith Baptist
Church, Inc., Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 9146
n.14 (MB 2007) ($10,000 forfeiture issued for eleven missing issues/programs lists); Geneva Broadcasting, Inc.,
Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 10642 (MB 2006)
(same); WGSO, L.L.C., Forfeiture Order, 2008 WL 4403051, (MB 2008) ($10,000 forfeiture issued for 10 missing
issues/programs lists).
21 See, e.g., Saga Communications of Ilinois, LLC, 26 FCC Rcd 5954 (MB 2011) (several stations assessed a $3,000
forfeiture where each was missing four or five issues/programs lists). See also Letter to John Garziglia, Esquire, and
John S. Neely, Esquire, 20 FCC Rcd 12105, 12109 (MB 2005) (licensee admonished for lacking a single item in its
public file); Emmis Television License Corporation, 19 FCC Rcd 22851, 22851-52 (EB 2004) (licensee admonished
for public file missing two letters from the public).
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DA 12-1205
10.We also reject the Licensee’s contention that a reduction in the forfeiture is warranted
based on its “voluntary disclosure” of the KTXR deficiencies. Although the Licensee admitted to violating
Section 73.3527, it did so only in the context of the question contained in its license renewal application
that compelled such disclosure.22 We find unpersuasive the argument that the established policy of
assessing forfeitures for violations disclosed through the renewal process should be changed because
licensees might be tempted to falsify their renewal applications. Rather, we remind the Licensee that the
penalties for certifying false statements on a renewal application can include additional forfeitures,23
revocation of the station’s license,24 and even criminal sanctions.25
11.
Additionally, we find no support for the claim that student-run noncommercial educational
(“NCE”) stations should be assessed reduced forfeitures relative to other licensees. We reject the
Licensee’s argument that its forfeiture should be cancelled or reduced because of its NCE status.26 The
Bureau likewise has no precedent for exempting a station from liability by virtue of being student run.27
Rather, licensees are liable for the omissions of those they choose to operate the station.28 Where student-
run stations have had forfeitures reduced, we have done so for reasons other than their NCE status or
operation by students.29
12.
Finally, the staff did not violate Section 504(c) of the Act by not immediately renewing
the Licensee’s license upon finding that the violations listed in the NAL did not merit an evidentiary
hearing. The statute at issue forbids the Commission from using a Notice of Apparent Liability to the
prejudice of the party against whom it was issued “in any other proceeding before the Commission[.]”30
However, in the present case the NAL and this Forfeiture Order have been issued as part of the ongoing
renewal proceeding, and so withholding grant of the renewal application until the proposed forfeiture is
paid or until a Forfeiture Order is released is consistent with the statute.31
22 Since 2007, we have declined to reduce forfeiture amounts based on a licensee’s voluntary disclosure because,
although licensees may admit to Section 73.3526 rule violations, they only do so in the context of a question
contained in the license renewal application compelling such disclosure. Faith Baptist Church, Inc., 22 FCC Rcd
9146, 9148 (MB 2007); Geneva Broadcasting, Inc., 21 FCC Rcd 10642, 10644 (MB 2006).
23 See 47 U.S.C. § 503 (forfeitures authorized for willful violations of Commission rules); 47 C.F.R. § 1,17 (rule
barring intentionally providing false statements of fact to Commission).
24 47 U.S.C. § 312.
25 18 U.S.C. § 1001.
26 Bible Broadcasting Network, Inc., 23 FCC Rcd 8743, 8745 (2008) (forfeiture reduced because station was a
translator, not because it was an NCE station). See also Boulder Community Broadcast Association, Inc., Forfeiture
Order, 23 FCC Rcd 8308 (EB 2008) (finding that licensee's NCE status alone was an insufficient basis to reduce
forfeiture amount); Lebanon Educational Broadcasting Foundation, Memorandum Opinion and Order, 21 FCC Rcd
1442, 1446 (EB 2006) (same).
27 University of Montana Western, 24 FCC Rcd 3127, 3130-31 (2009) (student-run stations are not exempted from
requirements of 47 C.F.R 73.3527(e)(8)).
28 See Southern Adventist University, 26 FCC Rcd 11254, 11256 (2011) (high turnover among staff at student-run
NCE station does not excuse licensee’s failure to comply with public file requirements).
29 For instance, the Bureau’s policy is to impose a lower level of forfeiture amounts on secondary stations such as
translators and Class D stations. See, e.g., Centerville City Schools Board of Education, 25 FCC Rcd 3855, 3857
(2010) (forfeiture reduced because license was for a Class D secondary service, not because station was operated by
students).
30 See 47 USC § 504(c) (emphasis added).
31 We will act on the license renewal application shortly after release of this Forfeiture Order.
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DA 12-1205
13.We have considered the Licensee’s response to the NAL in light of the above statutory
factors, our Rules, and the Forfeiture Policy Statement. We conclude that the Licensee willfully and
repeatedly violated Section 73.3526 of the Rules. We find that there is no basis for reduction of the
proposed monetary forfeiture.
IV.
ORDERING CLAUSES
14.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,32 that Toccoa Falls College
SHALL FORFEIT to the United States the sum of ten thousand dollars ($10,000) for willfully and
repeatedly violating Section 73.3527 of the Commission’s Rules at the Station.
15.
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).
Licensee will also send electronic notification on the date said payment is made to
Kelly.Donohue@fcc.gov and Patrick.Thompson@fcc.gov. Requests for payment of the full amount of the
forfeiture under an installment plan should be sent to: Associate Managing Director-Financial Operations,
Room 1-A625, 445 12th Street, S.W., Washington, DC 20554.33
16.
IT IS FURTHER ORDERED, that copies of this Forfeiture Order shall be sent by
Certified Mail Return Receipt Requested and by First Class Mail, to Toccoa Falls College, 292 Old
Clarkesville Road, Toccoa, GA 30577, and to its counsel, Gary S. Smithwick, Esq., Smithwick &
Belendiuk, P.C., 5028 Wisconsin Avenue, N.W., Suite 301, Washington, DC 20016
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau
32 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.283, 1.80.
33 Id.
5
Edoc Internal Id:
315443
Released On:
Thu, 2012-07-26 20:00
Published On:
July 27 2012
Adopted Date:
Thu, 2012-07-26 20:00
Edoc ID:
DA-12-1205