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$7,000 Forfeiture Issued to Station WKLC-FM

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Released: August 31, 2012

Federal Communications Commission

DA 12-1428

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Facility ID No. 73175


NAL/Acct. No. MB-2011941410016
FRN: 0002012003
Licensee of Station WKLC-FM
File No. BMLH-20110523AEG
St. Albans, West Virginia


Adopted: August 31, 2012

Released: August 31, 2012

By the Chief, Audio Division, Media Bureau:



In this Forfeiture Order, we issue a monetary forfeiture in the amount of seven thousand
dollars ($7,000) to WKLC, Inc. (“Licensee”), licensee of Station WKLC-FM (“Station”), for willfully
violating Section 73.3598 of the Commission’s Rules (“Rules”)1 by failing to timely file a license
application, and willfully and repeatedly violating Section 301 of the Communications Act of 1934, as
amended (“Act”),2 by engaging in unauthorized operation of the Station after its construction permit



Licensee filed an application on June 2, 2004 (“2004 Application”) seeking authorization
to construct new facilities after its tower site was destroyed.3 On July 19, 2004, Commission staff granted
the 2004 Application and issued a construction permit (“Permit”) with an expiration date of July 19,
2007. Licensee failed to file a covering license application by that date, and the Permit expired by
operation of law pursuant to Section 73.3598(e) of the Rules.4
On May 23, 2011, Licensee filed an application for modification of license
(“Application”) nearly four years after expiration of the Permit.5 It explained that it had in fact
completed construction and begun operating the Station pursuant to program test authority before the
Permit expired, and requested a waiver of Section 73.3598(e) of the Rules, citing Clear Channel

1 47 C.F.R. § 73.3598.
2 47 U.S.C. § 301.
3 File No. BPH-20040602AAD.
4 47 C.F.R. § 73.3598(e) (“Any construction permit for which construction has not been completed and for which an
application for license has not been filed, shall be automatically forfeited upon expiration without any further
affirmative cancellation by the Commission.”).
5 Licensee states that it filed the instant Application as a “Modification of License” rather than as a covering license
application because it “was unable to check the ‘purpose’ box on the Form 302-FM for ‘cover construction permit.’
CDBS apparently no longer recognizes the underlying construction permit (BPH-20040602AAD).” Application,
Exhibit 1, n.1.

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DA 12-1428

Broadcasting, Inc.,6 which it claimed “affirmed ‘the staff’s practice of waiving Section 73.3598(e) . . .
where the applicant conclusively demonstrates that it completed construction prior to the expiration of the
construction period, notwithstanding the tardy filing of the license to cover application.’”7
On August 1, 2011, the Media Bureau (“Bureau”) issued a Notice of Apparent Liability
for Forfeiture (“NAL”) in which it rejected Licensee’s argument that Clear Channel II compelled a
favorable action on the waiver request and dismissed the Application.8 The Bureau found Licensee
apparently liable for a forfeiture of $3,000, the full base amount permitted by the Commission’s
Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules, for Licensee’s failure to timely file a
license application, and $4,000 (reduced from the base amount of $10,000) for Licensee’s unauthorized
operation of the Station.9
Licensee submitted a Response to Notice of Apparent Liability for Forfeiture
(“Response”) on August 29, 2011. In the Response, Licensee states that that forfeiture should be reduced
or cancelled because: (1) the Commission violated Melody Music, Inc. v. FCC10 by not granting a waiver
of Section 73.3598(e); (2) the forfeiture is excessive in light of the circumstances; and (3) Licensee has a
history of compliance with the Rules.11



The forfeiture amount proposed in this case was assessed in accordance with Section
503(b) of the Act,12 Section 1.80 of the Rules, and the Commission’s Forfeiture Policy Statement.13 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.14
Licensee initially reiterates arguments that the Bureau rejected in the NAL: that Licensee
had constructed the Station in accordance with the construction permit and commenced operation
pursuant to program test authority, but inadvertently failed to file a covering license application; that the
Bureau has granted such waivers to other permittees, such as Clear Channel and those in the cases cited in
Clear Channel I, which had failed to timely file license applications when their modified facilities were

6 Clear Channel Broadcasting, Inc., Memorandum Opinion and Order, 26 FCC Rcd 7153 (2011) (“Clear Channel
”), aff’ing Clear Channel Broadcasting, Inc., Memorandum Opinion and Order, 21 FCC Rcd 8677 (MB 2006)
(“Clear Channel I”).
7 Response at 3, citing Clear Channel II, 26 FCC Rcd at 7157.
8 WKLC, Inc., Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
11001, 11003 (MB 2011) (“NAL”).
9 Id. at 11003.
10 Melody Music v. FCC, 345 F.2d 730 (D.C. Cir. 1965).
11 Response at 2-3.
12 47 U.S.C. § 503(b).
13 See 47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section I; Forfeiture Policy Statement and Amendment of
Section 1.80(b) of the Rules to Incorporate the Forfeiture Guidelines
, Report and Order, 12 FCC Rcd 17087, 17113-
15 (1997) (“Forfeiture Policy Statement”), recon. denied, 15 FCC Rcd 303 (1999).
14 47 U.S.C. § 503(b)(2)(E).

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DA 12-1428

constructed and operating at the time the construction period expired; and that Melody Music compels
such a waiver of Section 73.3598(e) here.15
We reject the argument that Licensee is similarly situated to those other parties. Licensee
did not file its Application until nearly four years after expiration of the Permit. As the Commission
stated in Clear Channel II, “the staff practice has been to waive relatively minor filing deadline
, so long as the applicant can demonstrate that construction was, in fact, completed in a timely
manner.”16 A delinquency of four years is not a “relatively minor filing deadline violation,” as Licensee
claims and, notably, the instances of waiver grants cited by Licensee occurred where the license
application was filed within days or weeks after the expiration of the construction permit. Although
Licensee argues that Clear Channel II “did not turn on the chronology of the [l]icense [a]pplication
filing” and instead “focused on whether a licensee’s ‘conduct satisfied the Commission’s policy of
requiring construction and commencement of operation within three years,’”17 we disagree. In Clear
Channel II
, the Commission specifically upheld the Bureau’s waiver of Section 73.3598 because the
license application was filed two days after the deadline.18 We find the Licensee is not similarly situated
to the permittees it references and therefore that Melody Music is inapplicable here.
Second, Licensee argues that even if the facts here are not similar to those of prior
applicants for whom the Commission waived Section 73.3598, the amount of the proposed forfeiture is
excessive, citing Section 503(b)(2)(D) of the Act.19 Licensee claims that reduction is warranted because
its error was not “egregious” and because its “degree of culpability” was minimal as it “had no intention
of violating Section 73.3598(e).”20
The proposed forfeiture amount is supported by the Forfeiture Policy Statement,21
Section 1.80(b)(4) of the Rules,22 and Commission precedent for other willful violations of Section

15 Response at 4.
16 Clear Channel II, 26 FCC Rcd at 7156 (emphasis added); Clear Channel I, 21 FCC Rcd at 8679 n. 17 (citing “the
following examples: Station WJUN(AM), Mexico, Pennsylvania (Construction Permit No. BP-19990727AC
expired January 23, 2005; License Application File No. BL-20050125ALN filed on January 25, 2005, granted on
May 18, 2005); KVLH(AM), Pauls Valley, Oklahoma (Construction Permit No. BP-20010202AD expired February
13, 2005; License Application File No. BL-20050228ADS filed on February 28, 2005, granted on June 1, 2005);
WJEH(AM), Gallipolis, Ohio (Construction Permit File No. BP-20010525ABL expired September 10, 2004;
License Application File No. BL-20041012AKQ filed on October 12, 2004, granted on March 7, 2005). Accord
Richard F. Swift, Esq.
, Letter, 24 FCC Rcd 13483 (MB 2009) (granting waiver where station construction was
complete before expiration of the construction permit application for license to cover was filed 15 days after the
permit expired).
17 Response at 4.
18 Clear Channel II, 26 FCC at 7157, ¶ 10 (“In these circumstance, where [the covering license application] was
filed only several days after the pertinent filing deadline, we find that a waiver does not undermine Section
73.3598’s purpose.” (emphasis added)).
19 Response at 4 (citing 47 U.S.C. § 503(b)(2)(D) (factors that may form the basis for an adjustment of the base
forfeiture amount)). See also supra, ¶ 5.
20 Response at 4.
21 Forfeiture Policy Statement, 12 FCC Rcd at 17133 (specifying base forfeiture amounts of $10,000 for operation
without an instrument of license and $3,000 for failure to file a required form).
22 47 C.F.R. § 1.80(b)(4) (specifying base forfeiture amounts of $10,000 for operation without an instrument of
license and $3,000 for failure to file a required form).

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DA 12-1428

73.3598 and willful and repeated violations of Section 301.23 Furthermore, in the NAL, the Bureau, after
careful and reasoned consideration of the factors enumerated in Section 503(b)(2)(D) of the Act, already
reduced the forfeiture proposed for Licensee’s nearly four-year period of unauthorized operations of the
Station from the base amount of $10,000 to $4,000.24 Further reductions are not warranted. We also
reject Licensee’s argument that its inadvertence is a mitigating factor. As the Commission has held,
violations resulting from inadvertent error or failure to become familiar with the FCC's requirements are
willful violations.25 Accordingly, we decline to reduce the proposed forfeiture amount on these grounds.
Finally, citing Commission precedent, Licensee argues that its record of compliance with
the Commission’s Rules warrants reduction.26 Again, we disagree. Commission records indicate that the
Enforcement Bureau previously admonished Licensee for its violation of Section 73.1690(b)(1) of Rules27
at commonly owned Station WJYP(AM), St. Albans, West Virginia.28 Prior violations of the Rules, even
if they do not result in monetary forfeitures, are grounds for denying a forfeiture reduction based on
history of compliance.29 Therefore, we will not reduce the proposed forfeiture.
We have considered Licensee’s response and the record of this case in light of the above
statutory factors, our Rules, and the Forfeiture Policy Statement. We conclude that Licensee willfully30
violated Section 73.3598 of the Rules and willfully and repeatedly31 violated Section 301 of the Act32 and
that no circumstances warrant reduction or cancellation of the proposed forfeiture.

23 See, e.g., St. Bonaventure University, Memorandum Opinion and Order and Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 13355 (MB 2011) (proposing a total forfeiture of $7,000 for willful and repeated violation
of Section 301 for operation without an instrument of license and willful violation of Section 73.3598 for failure to
file a required form); Alamo Navajo School Board, Memorandum Opinion and Order and Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd. 21481 (MB 2007) (same).
24 NAL, 26 FCC Rcd at 11004-5.
25 See 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”).
26 Response at 4, citing Drexel University, Forfeiture Order, 26 FCC Rcd 1386 (MB 2011); Stocks Broadcasting,
, Forfeiture Order, 25 FCC Rcd 7307 (MB 2010).
27 47 C.F.R. § 73.1690(b)(1), which requires obtaining Commission approval prior to replacing an authorized tower
with a tower of different height at the same location.
28 See WKLC, Inc., Memorandum Opinion and Order, 20 FCC Rcd 13554 (EB 2005) (admonishing WKLC, Inc., for
its violation of Section 73.1690(b)(1) of the Rules by replacing an authorized tower with a tower of different height).
29 See Tidewater Communications LLC, Order on Review, 25 FCC Rcd 1675 (2010) (affirming Enforcement
Bureau’s denial of reduction of proposed forfeiture based on history of compliance where licensee’s prior Rule
violation had resulted in an admonishment).
30 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 also
Southern California
, 6 FCC Rcd at 4388 (applying this definition of repeated to Sections 312 and 503(b) of the Act).
31 Section 312(f)(2) of the Act defines “repeated” as “the commission or omission of [any] act more than once or, if
such commission or omission is continuous, for more than one day.” 47 U.S.C. § 312(f)(2).
32 47 C.F.R § 73.3539; 47 U.S.C. § 301.

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DA 12-1428



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,33 that WKLC, Inc. SHALL
FORFEIT to the United States the sum of seven thousand dollars ($7,000) for willfully violating Section
73.3598 of the Commission’s Rules and for willfully and repeatedly violating Section 301 of the
Communications Act of 1934, as amended.
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.34 Payment of the 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).35 Licensee will also send electronic notification on the date said payment is made to and 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 20554.36
IT IS FURTHER ORDERED, that a copy of this Forfeiture Order shall be sent, by First
Class Certified Mail, Return Receipt Requested, to WKLC, Inc., 100 Kanawha Terrace, St. Albans, WV
25177, and to its counsel, Sally A. Buckman, Esq., and F. Scott Pippin, Esq., Lerman Senter PLLC, 2000
K Street, NW, Suite 600, Washington, DC 20006.
Peter H. Doyle
Chief, Audio Division
Media Bureau

33 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.283, 1.80.
34 47 U.S.C. § 504(a).
35 See 47 C.F.R. § 1.1914.
36 Id.

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