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Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
) File No.: EB-02-ST-208
Butterfield Broadcasting )
Corporation ) NAL/Acct. No. 200332980005
Licensee, KULE(AM) )
Ephrata, Washington ) FRN: 0001567817
FORFEITURE ORDER
Adopted: October 1, 2004 Released: October 4,
2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of two thousand dollars
($2,000) to Butterfield Broadcasting Corporation
(``Butterfield''), licensee of radio station KULE(AM), Ephrata,
Washington, for its willful and repeated violation of Section
73.3526(e)(1) of the Commission's Rules (``Rules'').1 The
violation involves Butterfield's failure to maintain a copy of
station KULE(AM)'s authorization in the station's public
inspection file.
2. On April 30, 2003, the Commission's Seattle, Washington
Office (``Seattle Office'') released a Notice of Apparent
Liability for Forfeiture (``NAL'') to Butterfield for a
forfeiture in the amount of two thousand dollars ($2,000).2
Butterfield filed a response on May 29, 2003, seeking
cancellation of the forfeiture.
II. BACKGROUND
3. On May 17, 1999, the Seattle Office issued an
Official Notice of Violation to Mirage Communications
(``Mirage'')3 for violations at station KULE(AM), which included
violation of Section 73.3526(e)(1) of the Rules. Specifically,
Mirage had failed to maintain a copy of station KULE(AM)'s
station authorization in its public inspection file. According
to Butterfield, all of Mirage's licenses had been destroyed
during a major roof leak. On May 25, 1999, staff from the
Commission's former Mass Media Bureau (``Media Bureau'') advised
Mirage how to obtain a reissued authorization. On June 30, 2001,
Butterfield became the licensee of station KULE(AM).4 On
November 19, 2002, staff from the Media Bureau notified
Butterfield that, according to Commission records, the station
authorization still had not been reissued for station KULE(AM).
At that time, Commission staff also specifically advised
Butterfield to ensure that station KULE(AM) had an accurate and
current license in the public file, and warned of possible
monetary forfeitures if a subsequent inspection revealed
continuing non-compliance.
4. On January 28, 2003, a Commission agent from the
Seattle Office inspected station KULE(AM)'s license folder
contained within the public inspection file. The agent
determined that station KULE(AM)'s authorization was not in the
station's public inspection file. KULE(AM) personnel were unable
to locate a copy of the station's authorization anywhere at the
station. On April 30, 2003, the Seattle Office issued the
subject NAL to Butterfield finding that Butterfield had
apparently willfully and repeatedly violated Section
73.3526(e)(1) of the Rules. Although the base forfeiture amount
for a violation of the public file rules is $10,000,5 after
considering the facts of the case the Seattle Office concluded
that a $2,000 forfeiture was appropriate. In its response,
Butterfield seeks cancellation of the forfeiture because it was
``in the process of dealing with the problem and it has since
been resolved,'' and because it is unable to pay the forfeiture.
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),6 Section 1.80 of the Rules,7
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Policy Statement'').8 In examining Butterfield's
response to the NAL, Section 503(b) of the Act requires that the
Commission take into account the nature, circumstances, extent,
and gravity of the alleged 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.9
6. Section 73.3526(e)(1) of the Rules requires that
the station's public inspection file include a copy of the
current FCC authorization to operate the station, as well as any
other documents necessary to reflect any modifications thereto or
any conditions that the FCC has placed on the authorization. The
Rules require the station authorization to be retained in the
public inspection file until replaced by a new authorization, at
which time a copy of the new authorization and any related
material must be placed in the file. Butterfield had been
advised in 2002 by Commission staff of the requirement to
maintain a copy of the station's authorization in the station's
public inspection file. However, Butterfield failed to comply
with the rule and on January 28, 2003, Butterfield still did not
have a copy of the authorization in its public file.
Accordingly, we conclude that Butterfield willfully10 and
repeatedly11 violated Section 73.3526(e)(1) of the Rules.
7. Butterfield seeks cancellation of the forfeiture
because it contends that it ``was in the process of dealing with
the problem in question and it has since been resolved.''
Although Butterfield claims that Mirage Communications, prior
licensee of station KULE(AM), requested a copy of station
KULE(AM)'s station license after it was destroyed by water,
Butterfield also admits that after only receiving an auxiliary
license in response to the request, the matter of station
KULE(AM)'s authorization ``fell through the cracks'' until 2001.
Butterfield further states that the license problem resurfaced in
late 2002, when questions arose about the accuracy of its
authorization and that its operations manager had located a copy
of the authorization, but he had it in his possession to
investigate the discrepancies when the inspection occurred on
January 28, 2003. However, we note that Butterfield had not had
a copy of station KULE(AM)'s license in the station file since
2001. At the time of the inspection on January 28, 2003, it
still did not have a copy of the authorization in the public
inspection file. Although Butterfield states that it now has a
copy of the license in the public file, we note that its remedial
measures, while commendable, are not mitigating factors.12
Finally, Butterfield also claims that it is unable to pay the
forfeiture and provides financial documentation in support of its
contention. We have reviewed the financial documentation
submitted by Butterfield and find that this information does not
provide a basis for cancellation or reduction of the forfeiture.
Indeed, the forfeiture is a very small percentage of
Butterfield's gross revenues.13
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,14 Butterfield IS LIABLE FOR A MONETARY FORFEITURE in the
amount of two thousand dollars ($2,000) for willful and repeated
violation of Section 73.3526(e)(1).
9. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this 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.15
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 above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank ``Bank One,'' and account number 1165259.
Requests for full payment under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.16
10. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by first class mail and certified mail, return
receipt requested, to Butterfield Broadcasting Corporation, 706
Butterfield Road, Yakima, Washington 98901.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 73.3526(e)(1).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332980005, (Enf. Bur., Seattle Office, released April 30,
2003.
3 Mirage was KULE(AM)'s licensee prior to Butterfield.
4 See Application for Consent to Assignment of Broadcast Station
Construction Permit or License, File Number BAL-20010130ABL,
granted June 14, 2001 (consummated June 30, 2001).
5 See 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303
(1999).
9 47 U.S.C. § 503(b)(2)(D).
10 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful,'
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
11 As provided by 47 U.S.C. § 312(f)(2), ``[t]he term `repeated',
when used with reference to the commission or omission of any
act, means the commission or omission of such act more than once
or, if such commission or omission is continuous, for more than
one day.'' The Conference Report for Section 312(f)(2) indicates
that Congress intended to apply this definition to Section 503 of
the Act as well as Section 312. See H.R. Rep. 97th Cong. 2d
Sess. 51 (1982). Southern California Broadcasting Co., supra.
12 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
21871 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994);
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
13 See Alpha Ambulance, Inc., FCC 04-19, 2, n.15 (February 5,
2004), citing PJB Communications, 7 FCC Rcd at 2089 (forfeiture
not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance,
Inc., 16 FCC Rcd at 10025 (forfeiture not deemed excessive where
it represented approximately 7.9 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues). In this case, the forfeiture represents a smaller
percentage of gross revenues than those issued in the Local Long
Distance, Inc., Hoosier Broadcasting Corp., and PJB
Communications of Virginia, Inc. cases.
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.