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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
M&R Enterprises, Inc. ) File No. EB-01-IH-0441
) NAL/Acct. No. 200232080010
Licensee of Station WESL(AM) ) FRN: 0005-0159-87
East St. Louis, Illinois ) Facility ID No.72815
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 28, 2002 Released: March 29,
2002
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture, we find that M&R Enterprises, Inc. (``M&R''),
licensee of Station WESL(AM), East St. Louis, Illinois,
apparently willfully and repeatedly violated Section 73.3526
of the Commission's rules, 47 C.F.R. § 73.3526, by denying
access to the public inspection file to members of the
public on two occasions. We conclude that M&R is apparently
liable for a ten thousand dollar ($10,000) forfeiture.
II. BACKGROUND
2. On July 3, 2001, the Enforcement Bureau received a
complaint alleging that M&R failed to comply with the
Commission's public inspection file requirements. The
complainant alleged that on July 2 and July 3, 2001, station
staffers Betty Robinson and Steve Riggins denied access to
members of the public, including Mr. Anthony Noland, Ms.
Clytee Shaw, and Mr. Michael Bryant, who requested to view
the public inspection file. As a result of that complaint,
the Commission sent M&R a letter of inquiry on August 8,
2001.
3. M&R responded to the Commission's letter of
inquiry on August 15, 2001. In the response, M&R stated
that the public inspection file is maintained in the
manager's office in East St. Louis, Illinois, and has been
since the station was acquired. M&R stated that the public
inspection file contains the station's FCC license,
political contracts, EAS logs, annual employment reports,
Articles of Incorporation, the FCC application, Letter of
Consummation, letters from the public, Measurement Work
Order (NRSC), the Ownership Report, Pre-filing Announcement,
August 1997, and Revenue Application, 1997. The response
also stated that the station's regular business hours are
Monday through Friday, 9:00 am until 5:00 pm, and that the
public inspection file is available to the public during
said business hours and a request for copies will be
fulfilled by the General Manager in not more than seven
days.
4. M&R stated in its response that Mr. Noland, Ms.
Shaw, and Mr. Bryant did not ask for any specific materials
and that the public inspection file was in the office at the
time of the alleged violation.
5. The complainant maintains that the named
individuals specifically asked for access to the public
inspection file and that station personnel denied them
access. In its response, M&R does not deny this. Rather,
M&R states that these individuals did not ask for any
specific materials.
III. DISCUSSION
6. Section 73.3526(a) of the Commission's rules, 47
C.F.R. § 73.3526(a), requires all licensees of commercial
broadcast stations to maintain a public inspection file
containing certain designated information. Section
73.3526(c) of the Commission's rules, 47 C.F.R. §
73.3526(c), requires that the public inspection file be
available for public inspection at any time during regular
business hours.
7. M&R violated Section 73.3526(c) of the
Commission's rules, 47 C.F.R. § 73.3526(c), when Station
WESL(AM) failed to provide access to the public inspection
file to members of the public upon request. M&R claims that
the named individuals did not request specific materials
from the public inspection file. We find that this does not
excuse the station's failure to provide access to the public
inspection file. The Commission has held that ``a simple
request to see the file should be sufficient to elicit the
complete file'' without the further necessity of asking for
documents piecemeal.1 Thus, we find that it is irrelevant
whether the individuals requested to view specific documents
from the public inspection file or whether they simply asked
to see the public inspection file. M&R's failure to provide
access to its public inspection file upon request is a
violation of the Commission's rules.
8. Section 503(b) of the Communications Act, 47
U.S.C. § 503(b) and Section 1.80(a) of the Commission's
rules, 47 C.F.R. § 1.80(a), each state that any person who
willfully or repeatedly fails to comply with the provisions
of the Communications Act or the Commission's rules shall be
liable for a forfeiture penalty. For purposes of Section
503(b) of the Communications Act, the term ``willful'' means
that the violator knew it was taking the action in question,
irrespective of any intent to violate the Commission's
rules. See Southern California Broadcasting Co., 6 FCC Rcd
4387, 4387-88 (1991).
9. The Commission's Forfeiture Policy Statement sets
a base forfeiture amount of $10,000 for public file
violations. The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997),
recon. denied 15 FCC Rcd 303 (1999). In this case, it
appears that Station WESL(AM) willfully and repeatedly
denied access to the public inspection file to members of
the public upon request. The station denied such a request
to more than one individual and on more than one occasion.
Considering the record as a whole, 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, we believe that a $10,000
forfeiture is appropriate for the violations in this case.
See Riverside Broadcasting, Inc., 15 FCC Rcd 18322 (EB 2000)
(NAL paid; licensee found apparently liable for $10,000
forfeiture for denying access to station's public inspection
file on June 13 and 14, 2000).
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED pursuant to Section
503(b) of the Communications Act of 1934, as amended, 47
U.S.C. § 503(b), and Sections 0.111, 0.311 and 1.80 of the
Commission's rules, 47 C.F.R. §§ 0.111, 0.311 and 1.80, that
M&R Enterprises, Inc. is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of ten thousand
dollars ($10,000) for willfully and repeatedly violating
Section 73.3526 of the Commission's rules, 47 C.F.R. §
73.3526.
11. IT IS FURTHER ORDERED, pursuant to Section 1.80 of
the Commission's rules, that within thirty days of the
release of this Notice, M&R SHALL PAY to the United States
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
12. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. The payment
MUST INCLUDE the FCC Registration number (FRN) referenced
above and also must note the NAL/Acct. No. referenced above.
13. The response, if any, must be mailed to Charles
W. Kelley, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W, Room 3-B443, Washington, D.C. 20554 and
MUST INCLUDE THE NAL/Acct. No. referenced above.
14. 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. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
submitted.
15. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554. See
47 C.F.R. § 1.1914.
16. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to M&R Enterprises, Inc., Robert Riggins, General Manager,
149 South Eighth Street, East St. Louis, IL.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 In the Matter of Liability of KLDT-TV 55, Inc., 10 FCC Rcd
3198 (1995). See also In the Matter of Review of the
Commission's Rules Regarding the Main Studio and Local
Public Inspection Files of Broadcast Television and Radio
Stations, 13 FCC Rcd 15691, 15700-06 (1998) (¶¶ 18 and 32)
(The Commission explained that because the public may not be
aware of the required contents of public inspection files,
the rule requires that the file contain the most recent
version of the manual, ``The Public and Broadcasting,''
which details the required contents of the public inspection
file and describes the public's role in monitoring a
``station's operations and public interest
performance...'').