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Colville Apparently Liable for Late-Filed Auction 91 Application

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Released: October 4, 2011

Federal Communications Commission

DA 11-1673

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Request of

Tallie Colville

Facility I.D. No. 189547
NAL/Acct. No. MB201141410018
For Waiver of Auction 91
FRN: 0020592606
Form 301 Filing Deadline
File No. BNPH-20110824AAS
Application for Construction Permit for
New FM Station, Diamond Lake, Oregon




Adopted: October 4, 2011

Released: October 4, 2011

By the Chief, Audio Division:


The Commission has before it the August 24, 2011, request of Tallie Colville
("Colville"), for waiver of the post-auction Form 301 long-form application filing deadline. In this
Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture ("NAL"), issued
pursuant to Section 503(b) of the Communications Act of 1934, as amended (the "Act"), and Section 1.80
of the Commission's Rules (the "Rules"),1 by the Chief, Audio Division, Media Bureau, by authority
delegated under Section 0.283 of the Rules,2 we find that Colville apparently willfully violated Sections
73.3573(f)(5)(i) and 73.5005(a) of the Rules by failing to timely file a post-auction Form 301
application.3 Based upon our review of the facts and circumstances before us, we conclude that Colville
is apparently liable for a monetary forfeiture in the amount of three thousand dollars ($3,000). We also
grant Colville's waiver request and have accepted her application for filing.


On September 21, 2010, the Media Bureau and the Wireless Telecommunications Bureau
(collectively, the "Bureaus") jointly released a Public Notice announcing a March 29, 2011, auction of
FM broadcast construction permits, Auction 91.4 Colville timely filed a FCC Form 175 application to
participate in FM Auction 91, and was found to be a qualified bidder.5 By a May 23, 2011, Public Notice,
the Bureaus announced that Colville was the winning bidder in FM Auction 91 for the FM construction

1 47 U.S.C. 503(b); 47 C.F.R. 1.80.
2 See 47 C.F.R. 0.283.
3 See 47 C.F.R. 73.3573(f)(5)(i), 73.5005(a).
4 Auction of FM Broadcast Construction Permits Scheduled for March 29, 2011; Comment Sought on Competitive
Bidding Procedures for Auction 91
, Public Notice, 25 FCC Rcd 13034 (MB/WTB 2010).
5 Auction of FM Broadcast Construction Permits; 117 Bidders Qualified to Participate in Auction 91, Public Notice,
26 FCC Rcd 5805 (MB/WTB 2011).

Federal Communications Commission

DA 11-1673

permit at Diamond Lake, Oregon.6 Winning bidders were to file a post-auction FCC Form 301 long-form
application by June 30, 2011. The Auction 91 Closing Public Notice cautioned that "[a]n applicant that
fails to submit the required long-form application before the specified deadline, and fails to establish good
cause for any late-filed submission shall be deemed to have defaulted and shall be subject to the payments
set forth in Section 1.2104(g) of the Commission's rules."7 Colville failed timely to submit a post-auction
Form 301 application. Her Form 301 application (the "Application") was submitted on August 24, 2011,
containing a request for a waiver of the filing deadline set forth in Sections 73.3573(f)(5)(i) and
73.5005(a) of the Rules,8 as well as the Auction 91 Closing Public Notice.9
In her request for waiver, Colville states, without further elaboration, that "circumstances
existed on or about the filing deadline, June 30, 2011, and the applicant was not ready to submit the
application by the filing deadline."10 Colville further states that "acceptance of this application will not
disrupt the auction process or undermine the FCC's policy of facilitating rapid implementation of
service," and that in fact, acceptance of the Application "will eliminate the need for another time
consuming auction of this allotment."11


Waiver Request. Ordinarily, a winning bidder that fails to timely file the required long-
form application is deemed to have defaulted, its application is dismissed, and it is subject to the default
payment set forth in Section 1.2104(g) of the Rules.12 However, the Commission may, for good cause,
determine that a late filed long-form application should be accepted.13 When an applicant seeks a waiver
of the rules, it must plead with particularity the facts and circumstances which warrant such action.14 "A
waiver is appropriate only if special circumstances warrant a deviation from the general rule and such
deviation will serve the public interest."15
The Commission has previously granted waivers of the post-auction long-form
application filing deadline when minor, inadvertent, post-auction delinquencies did not disrupt the auction
process, nor undermine the Commission's policy of facilitating rapid implementation of service to the
public.16 We find that Colville has demonstrated circumstances that, minimally, meet the standard for

6 Auction of FM Broadcast Construction Permits Closes; Winning Bidders Announced for Auction 91, Public
Notice, 26 FCC Rcd 7541 (MB/WTB 2011) ("Auction 91 Closing Public Notice").
7 Id. at 7546.
8 Actually, Colville seeks waiver of "Section 73.5373(f)(5)(i) and 73.5000" of the Rules. See Exhibit 1 to
Application. We will assume that Colville meant Sections 73.3573(f)(5)(i) and 73.5005(a) and (c).
9 47 C.F.R. 73.3573(f)(5)(i), 73.5005(a). These Sections require a winning bidder to file its long-form
application within 30 days of the release of the public notice announcing the close of the auction.
10 Exhibit 1 to Application.
11 Id.
12 47 C.F.R. 1.2104(g).
13 47 C.F.R. 73.5005(a).
14 Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir. 1968). In addition, Section
73.3566(a) of the Commission's radio broadcast rules provides that requests for waiver "shall show the nature of the
waiver or exception desired and shall set forth the reasons in support thereof." 47 C.F.R. 73.3566(a).
15 Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v. FCC, 418
F.2d 1153, 1157-59 (D.C. Cir. 1969)).
16 See, e.g., Frank J. Neely, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 21
FCC Rcd 8010 (MB 2006) (waiver granted and forfeiture assessed to applicant that stated it lacked assistance of

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DA 11-1673

waiver of the application filing deadline. The record indicates that, prior to her late filing of the Form 301
application, Colville had complied with all previous Auction 91 requirements, including all filing and
payment obligations, and was found to be a qualified bidder. Moreover, while Colville has not provided a
detailed explanation of the "circumstances" that existed preventing her from timely filing Form 301, we
find no evidence of bad faith on her part. Furthermore, in reaching the conclusion to waive the filing
deadline, we give considerable weight to Colville's record of prior compliance with auction-related
We also recognize that the FM licensing process was not significantly delayed nor
materially adversely affected by Colville's late filing of the application here. Accepting Colville's Form
301 application would not undermine the Commission's broadcast auction policies. Thus, flexibility is
appropriate in this instance. We find it in the public interest to avoid a delay in implementing new service
to Diamond Lake, Oregon, by having to re-auction the FM construction permit, and therefore grant
Colville's waiver request below. Although we grant Colville a waiver of the rules that would otherwise
require dismissal of her late-filed long-form application, and associated imposition of a default payment,
we nonetheless find that she apparently failed to comply with the rules requiring timely submission of the
post-auction Form 301 application.
Proposed Forfeiture. In this case, Colville has admitted that she failed to timely file a
post-auction Form 301 application, as required by Sections 73.3573(f)(5)(i) and 73.5005(a) of the Rules.
This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision,
any person who is determined by the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by the Commission shall be liable to the
United States for a forfeiture penalty.17 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.18 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,19 and the Commission has so interpreted the term in the Section
503(b) context.20
The Commission's Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules
establish a base forfeiture amount of $3,000 for the failure to file a required form.21 In determining the
appropriate forfeiture amount, we must consider the factors enumerated in Section 503(b)(2)(D) of the
Act, including "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."22

counsel, and neglected to fully read auction closing Public Notice setting forth filing deadline); Gulf Coast
Community College
, 20 FCC Rcd 17157 (MB 2005); Silver Palm Communications, Inc., 17 FCC Rcd 6606, 6607
(WTB 2002); City Page & Cellular Services, Inc., 17 FCC Rcd 26109, 22611-12 (WTB 2002); Pinpoint
Communications, Inc
., 14 FCC Rcd 6421 (WTB 1999).
17 47 U.S.C. 503(b)(1)(B). See also 47 C.F.R. 1.80(a)(1).
18 47 U.S.C. 312(f)(1).
19 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
20 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).
21 See Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the Forfeiture
, Report and Order, 12 FCC Rcd 17087, 17113-15 (1997) ("Forfeiture Policy Statement"), recon. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. 1.80(b)(4), note to paragraph (b)(4), Section I.
22 47 U.S.C. 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C.F.R. 1.80(b)(4).

Federal Communications Commission

DA 11-1673

In this case, Colville was on notice that she was responsible for timely submitting her
post-auction Form 301 application, but failed timely to file her application. Taking into consideration
these facts and the factors required by Section 503(b)(2)(D) of the Act and the Forfeiture Policy
, we propose a forfeiture in the full base amount of $3,000.


Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act
of 1934, as amended, and Section 1.80 of the Commission's Rules, that Tallie Colville is hereby
NOTIFIED of her APPARENT LIABILITY FOR FORFEITURE in the amount of $3,000 for her
apparent willful violation of Sections 73.3573(f)(5)(i) and 73.5005(a) of the Commission's Rules.
IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's Rules, that,
within thirty (30) days of the release date of this NAL, Tallie Colville SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed
Payment of the proposed forfeiture must be made by credit card, 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 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).23 Colville will also send electronic notification on the date said payment is made to and
The written statement seeking reduction or cancellation of the proposed forfeiture, if any,
must be mailed to Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W.,
Washington D.C. 20554, ATTN: Peter H. Doyle, Chief, Audio Division, Media Bureau, and MUST
INCLUDE the NAL/Acct. No. referenced above.
The Commission will not consider reducing or canceling a forfeiture in response to a
claim of inability to pay unless the respondent 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
respondent's current financial status. Any claim of inability to pay must specifically identify the basis for
the claim by reference to the financial documentation submitted.
Requests for full payment of the forfeiture proposed in this NAL under the installment
plan should be sent to: Associate Managing Director- Financial Operations, 445 12th Street, S.W., Room
1-A625, Washington, D.C. 20554.24
17. IT IS FURTHER ORDERED, that Colville's Request for Waiver of the Form 301 Filing
Deadline IS GRANTED and the Application will be processed in accordance with post-auction

23 See 47 C.F.R. 1.1914.
24 Id.

Federal Communications Commission

DA 11-1673

18. IT IS FURTHER ORDERED, that copies of this NAL shall be sent by First Class and
Certified Mail, Return Receipt Requested, to Tallie Colville, 1013 Riverview Drive, Valley City, ND
58072, and to her counsel, Dawn M. Sciarrino, Esquire, Sciarrino & Shubert, PLLC, 5425 Tree Line
Drive, Centreville, VA 20120.

Peter H. Doyle
Chief, Audio Division
Media Bureau

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