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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Lebanon Educational ) File No. EB-03-KC-022
Broadcasting Foundation, ) NAL/Acct. No. 200332560022
Licensee of Noncommercial ) FRN 0002-5292-38
Station KTTK(FM)
Lebanon, Missouri
FORFEITURE ORDER
Adopted: October 27, 2004 Released: October
29, 2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of four thousand dollars
($4,000) to Lebanon Educational Broadcasting Foundation
(``Lebanon''), licensee of noncommercial Station KTTK(FM),
Lebanon, Missouri, for its willful violation of the public
file requirements of Section 73.3527(c)(1) of the
Commission's Rules (``Rules'').1
II. BACKGROUND
2. On January 30, 2003, an agent from the
Commission's Kansas City, Missouri Field Office (``Field
Office'') inspected Station KTTK's facilities, and observed
that certain documents (the station's contour map and
issues/programs list, and copy of the ``Public and
Broadcasting'' manual) were missing from the station's
public files and thus not made available during the
station's regular business hours. As a result of the
inspection, on April 18, 2003, the Field Office released a
Notice of Apparent Liability for Forfeiture (``NAL'').2 The
NAL proposed a $4,000 forfeiture against Lebanon for its
apparent willful violation of Section 73.3527(c)(1) of the
Rules, downwardly adjusting the $10,000 base forfeiture
amount in recognition of the fact that the ``public file
contained a portion of the required items.''3
3. Lebanon responded to the NAL on May 9, 2003. In
its response, Lebanon sought cancellation of the proposed
forfeiture. Lebanon admitted that the contour map and
manual were not shown to the FCC agent. Lebanon claimed
that such material was in the public file, but not shown to
the agent, because the station's assistant manager had to
leave prior to completion of the inspection and the station
employee who was present throughout the inspection was
unfamiliar with the public file contents. Lebanon further
admitted that the issues/program lists were not shown to the
FCC agent. Lebanon acknowledged that lists for the last two
quarters of 2001 and all four quarters of 2002 was missing
from the station's public file, but claimed that the
employee tasked with that responsibility has been
disciplined and that the file has since been updated to
include the lists. Finally, in support, Lebanon submitted
copies of its contour map, manual and updated issues/program
lists.
III. DISCUSSION
4. The forfeiture amount proposed in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),4 Section
1.80 of the Rules,5 and the Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines.6 In assessing
forfeitures, Section 503(b)(2)(D) 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.7 As discussed below, we have considered Lebanon's
response to the NAL in light of these statutory factors and
have found that further reduction of the proposed forfeiture
amount is not warranted.
5. As a noncommercial broadcast licensee, Lebanon's
public file must contain its contour map and public
broadcasting manual,8 and such material must be made
available for public inspection during its regular business
hours.9 Lebanon claimed that the material was in its public
file, but admitted that such material was not shown to the
FCC agent and thus was not made available for public
inspection. Because Lebanon admitted that the material was
not made available for inspection during the station's
regular business hours, we conclude that no cancellation or
reduction of the proposed forfeiture is warranted in this
regard.
6. Lebanon is also required to include within its
public file ``every three months a list of programs that
have provided the station's most significant treatment of
community issues,''10 and make such lists available during
its regular business hours.11 As the licensee of the
station, Lebanon is responsible for compliance with the
Commission's requirements, and is not absolved from
liability for the lapses of an employee that was tasked with
the responsibility of updating the station's issues/programs
lists.12 Moreover, as the licensee of the station, Lebanon
is ``expected'' to correct violations by updating its
missing issues/programs lists, but its corrective actions
implemented after Commission inspection and/or action do not
mitigate its past violations.13 Because the lists were not
made available for inspection during the station's regular
business hours, we conclude that no cancellation or
reduction of the proposed forfeiture is warranted in this
regard.
7. In sum, Section 1.80(b)(4) of the Rules14 sets a
base forfeiture amount of $10,000 for public file
violations. As previously stated, the NAL took into account
that Lebanon's public file was only partially incomplete,
and downwardly adjusted the base forfeiture amount to
$4,000. In the instant case, we do not believe a further
reduction of the proposed forfeiture is warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,15 Lebanon Educational Broadcasting
Foundation IS LIABLE FOR A MONETARY FORFEITURE in the amount
of four thousand dollars ($4,000.00) for willful violation
of Section 73.3527(c)(1) of the Rules.
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.16 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.
20554.17
10. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Pamela Rhoades, Assistant General
Manager, Lebanon Educational Broadcasting Foundation, P.O.
Box 1232, Lebanon, Missouri 65536.
FEDERAL COMMUNICATIONS
COMMISSION
George R. Dillon
Assistant Chief, Enforcement
Bureau
_________________________
147 C.F.R. § 73.3527(c)(1) (requiring noncommercial
broadcast stations to maintain, and make for public
inspection during regular business hours, complete files
relating to the station).
2Lebanon Educational Broadcasting Foundation, NAL/Acct. No.
200332560022 (Enf. Bur., Kansas City Office, April 18,
2003).
3Id. at ¶ 5.
447 U.S.C. § 503(b).
547 C.F.R. § 1.80.
612 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Forfeiture Policy Statement'').
747 U.S.C. § 503(b)(2)(D).
8See 47 C.F.R. §§ 73.3527(e)(3) and (7).
9See 47 C.F.R. § 73.3527(c)(1).
10See 47 C.F.R. § 73.3527(e)(8).
11See 47 C.F.R. § 73.3527(c)(1).
12See Eure Family Limited Partnership, 17 FCC Rcd 21861,
21863-64 ¶¶ 6-7 (2002) (denying the antenna structure
owner's claim that the forfeiture should be cancelled
because the failure to comply with the lighting
requirements resulted from the failure of its
lessee/contractor to monitor the lights, or notify it
regarding light outages, and finding the violation to be
willful) ; Sonderling Broadcasting Corp., 69 FCC 2d 289,
290-291 ¶ 6 (1977); Wagenwood Broadcasting Co., 25 FCC 2d
361, 361-62 ¶ 2 (1972); Charter Communications VI, LLC, 17
FCC Rcd 16516, 16518-19 ¶¶ 8-9 (Enf. Bur. 2002) (denying
cable operator's claim that the forfeiture should be
reduced because the violations were due to its employees'
lapses and misunderstandings, and finding the violation to
be willful); American Paging, Inc., 12 FCC Rcd 10417,
10419-20 ¶ 11 (WTB 1997).
13See AT&T Wireless Services, Inc., 17 FCC Rcd 7891 (2002),
forfeiture ordered, 17 FCC Rcd 21866, 21875-76 ¶¶ 26-28
(2002); Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 ¶ 7
(1994); see also TCI Cablevision of Maryland, Inc., 7 FCC
Rcd 6013, 6014 ¶ 8 (1992) (noting that it would be
inappropriate to base ``mitigation of cancellation of a
forfeiture upon corrective action taken subsequent to
misconduct upon which liability is based,'' because it
``would tend to encourage remedial rather than preventative
action'').
1447 C.F.R. § 1.80(b)(4).
1547 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
1647 U.S.C. § 504(a).
17See 47 C.F.R. § 1.1914.