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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
MEMORANDUM OPINION AND ORDER
Adopted: February 13, 2006 Released:
February 16, 2006
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order''), we
grant in part and deny in part a Petition for
Reconsideration filed by Lebanon Educational
Broadcasting Foundation (``Lebanon''), Licensee of
Noncommercial Station KTTK(FM), Lebanon, Missouri.
Lebanon seeks reconsideration of a Forfeiture Order1 in
which the Assistant Chief, Enforcement Bureau
(``Bureau'') found it liable for a monetary forfeiture
in the amount of four thousand dollars ($4,000) for
willful violation of the public inspection file
requirements of Section 73.3527(c)(1) of the
Commission's Rules (``Rules'').2 The noted violation
involves Lebanon's failure to make available for
inspection all required items in the station's public
inspection file during regular business hours. For the
reasons discussed below, we find that a further
reduction of the forfeiture amount from $4,000 to three
thousand two hundred dollars ($3,200) is warranted.
II. BACKGROUND
2. On January 30, 2003, a field agent (``agent'') from the
Commission's Kansas City, Missouri Field Office (``Field
Office'') inspected Station KTTK's facilities and
observed that certain required materials were missing
from the station's public inspection file and thus not
available during the station's regular business hours in
violation of Section 73.3527(c)(1) of the Rules -
namely, the station's contour map,3 ``Public and
Broadcasting'' manual (``manual'')4 and certain
issues/programs lists.5 On April 18, 2003, the Field
Office issued a Notice of Apparent Liability for
Forfeiture (``NAL''),6 proposing a $4,000 forfeiture
against Lebanon for its apparent willful violation of
Section 73.3527(c)(1) of the Rules. The proposed
forfeiture amount was downwardly adjusted from the
$10,000 base forfeiture amount set forth in Section
1.80(b)(4) of the Rules because the ``public inspection
file contained a portion of the required items.''7
3. In a May 9, 2003, response to the NAL (``Response''),
Lebanon sought cancellation of the proposed forfeiture.
Lebanon claimed that the contour map and manual were in
the public inspection file but not shown to the agent,
because the station employee who was present throughout
the inspection was unfamiliar with the contents of the
public inspection file. Lebanon also admitted that the
issues/programs lists for the last two quarters of 2001
and all four quarters of 2002 were missing from the
station's public inspection file, explaining that the
employee tasked with the responsibility of maintaining
that file had failed to do so. Lebanon asserted that
the public inspection file had been updated to include
the lists. In support of its Response, Lebanon
submitted copies of its contour map, manual and updated
issues/programs lists.
4. On October 29, 2004, the Bureau released a Forfeiture
Order, finding that no further reduction of the proposed
forfeiture was warranted and imposing a monetary
forfeiture in the amount of $4,000. The Bureau
determined that because Lebanon admitted that the
contour map and manual were not made available for
inspection during the station's regular business hours,
no further cancellation or reduction of the proposed
forfeiture was warranted. The Bureau also explained
that Lebanon could not escape liability for the
incomplete issues/programs lists due to the lapse of an
employee that was tasked with the responsibility of
updating those lists.8 The Bureau noted that as the
licensee of the station, Lebanon was ``expected'' to
correct violations by updating its missing
issues/programs lists, and that corrective actions
implemented after a Commission inspection and/or action
do not mitigate past violations.9
5. On November 29, 2004, Lebanon filed a Petition for
Reconsideration of the Forfeiture Order. Lebanon
reasserts that two of the documents - the station's
contour map and manual - were in the public inspection
file at the time of the inspection. Lebanon also newly
asserts that its candid acknowledgement of the missing
issues/programs lists, status as a noncommercial
educational radio station and previously unblemished
enforcement record with the Commission should combine to
result in a forfeiture amount of no more than one
thousand two hundred dollars ($1,200).
III. DISCUSSION
6. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Act, Section 1.80
of the Rules, and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines.10 In examining
Lebanon's Petition for Reconsideration, Section 503(b)
of the Act requires that the Commission 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 any other such matters as justice
may require.11
III.A. Violation of Section 73.3527(c)(1)
1. Background
7. Section 73.3527(a)(2) of the Rules12 requires every
permittee or licensee of an AM, FM, or TV station in the
noncommercial educational broadcast services to maintain
a public inspection file containing certain prescribed
documents. Section 73.3527(c)(1) of the Rules requires
every permittee or licensee to make the public
inspection file available for public inspection at any
time during business hours. The Commission has found
that reasonable access to the public inspection file
serves the important purpose of facilitating citizen
monitoring of a station's operations and public interest
performance, and fostering community involvement with
local stations, thus helping to ensure that stations are
responsive to the needs and interests of their local
communities.13
2. Discussion
8. In its Petition for Reconsideration, Lebanon seeks a
downward adjustment of the forfeiture amount. First,
Lebanon again argues that the forfeiture should be
reduced because the station's manual and contour map
were, in fact, in the public inspection file at the time
of the inspection. We disagree, and deny
reconsideration on this basis,14 noting that the
argument was previously fully discussed and
satisfactorily rejected in the Forfeiture Order.15
9. Second, Lebanon attempts to decrease its
responsibilities under Section 73.3527(c) of the Rules
by carving out an exception to the requirements of that
Rule. Lebanon asserts that it fulfilled its obligations
in accordance with the subject Rule merely by making the
public inspection file available during regular business
hours:
The Public Inspection File rule applicable does not
include an explicit obligation . . . for the licensee's
representative to assist a person inspecting the file
in locating a particular document. In this case, given
that the Field Agent did not himself look for any
documents in the Public Inspection File, the inability
of a station staff member to locate particular
documents in the file does not, in and of itself,
constitute a violation of the rules.16
In sum, Lebanon argues that the one who seeks to inspect the
public inspection file has the responsibility to locate the
documents within that file.
10. We disagree. The Rule requires station staff to have
hands-on knowledge of the contents of the public
inspection file. Where a licensee maintains its main
studio and public inspection file outside of its
community of license, Section 73.3527(c)(2)(i) of the
Rules requires staff to respond to telephone requests
for public inspection file materials by copying and
delivering the most recent documents (except for the
political file).17 In addition, Section
73.3527(c)(2)(ii) requires staff to mail the most recent
version of the manual to any member of the public that
requests a copy.18 Moreover, Section 73.3527(c)(2)(iii)
of the Rules requires staff to ``[b]e prepared to assist
members of the public in identifying the documents they
may ask to be sent to them by mail, for example, by
describing to the caller, if asked, the period covered
by a particular report and number of pages included in
the report.''19 It follows, then, that Section
73.3527(c) of the Rules requires staff to have this same
hands-on knowledge of the public inspection file when
members of the public visit the station for the purpose
of examining those files.20 The licensee cannot shift
the burden of identifying the materials in the public
inspection file to the public.21
11. Third, Lebanon asserts that the instant forfeiture
amount should be reduced because it ``candidly
acknowledged that certain of the quarterly lists were
missing from the file.'' Forfeitures are neither
downwardly adjusted nor cancelled where, as here,
violators make disclosures in response to Commission
inquiries/investigations or actions.22 As with
corrective actions, ``nothing less than full and
complete cooperation''23 and ``candor''24 is expected
during the course of Commission investigations and
proceedings.
12. Fourth, Lebanon also avers that the forfeiture amount
at issue should be reduced because of the noncommercial
educational status of the broadcast radio station.
Section 73.3527(c)(1) of the Rules requires
noncommercial licensees to make available for inspection
all required items in the station's public inspection
file during regular business hours. Where the Rule is
violated, Section 1.80 provides that a monetary
forfeiture may be imposed, and there is no exemption or
reduction based on the noncommercial status of a
station.25 In the instant case, the Enforcement Bureau
determined in the Forfeiture Order - and we affirm in
the instant Memorandum Opinion and Order - that Lebanon
willfully failed to provide access to portions of its
public inspection file in violation of Section
73.3527(c)(1) of the Rules by failing to include in that
file at the time of inspection, the issues/programs list
for six consecutive quarters,26 contour map and manual.
13. Finally, Lebanon, referencing Isothermal Community
College,27 newly asserts that the instant forfeiture
amount should be reduced because of Lebanon's history of
overall compliance, suggesting that it be no more than
$1,200. We agree that a reduction of the forfeiture
amount is warranted, based upon our review of the record
and finding that Lebanon has a history of overall
compliance with the Rules. Accordingly, we further
reduce the forfeiture amount from $4,000 to $3,200
pursuant to Section 1.80(b)(4) of the Rules28 and past
precedent.29
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
405 of the Act30 and Section 1.106 of the Rules,31
Lebanon's Petition for Reconsideration of the October
29, 2004, Forfeiture Order IS GRANTED IN PART AND DENIED
IN PART to the extent indicated herein.
15. 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.32 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 Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB
358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and
account number 911-6106. Requests for payment of the
full amount of the NAL under an installment plan should
be sent to: Associate Managing Director - Financial
Operations, 445 12th Street, S.W., Room 1A625,
Washington, D.C. 20554.33
16. IT IS FURTHER ORDERED THAT a copy of this Order shall
be sent by first class mail and certified mail, return
receipt requested, to Lebanon and its representative,
Matthew H. McCormick, Esq., Reddy, Begley & McCormick,
LLP, 1156 15th Street, NW, Suite 610 Washington DC ,
20005 - 1770.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
_________________________
1 Lebanon Educational Broadcasting Foundation, 19 FCC Rcd 21696
(Enf. Bur. 2004) (``Forfeiture Order'').
2 47 C.F.R. § 73.3527(c)(1) (noncommercial broadcast stations
must make available at any time during regular business hours
public access to the public inspection file).
3 47 C.F.R. § 3527(e)(3).
4 47 C.F.R. § 3527(e)(7).
5 47 C.F.R. § 3527(e)(8).
6 Notice of Apparent Liability, NAL/Acct. No. 200332560022 (Enf.
Bur., Kansas City Office, released April 18, 2003) (``NAL'').
7 Id. at ¶ 5.
8 Forfeiture Order, 19 FCC Rcd at 21697 citing 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).
9 Forfeiture Order, 19 FCC Rcd at 21697 citing 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'').
10 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999).
11 47 U.S.C. § 503(b)(2)(D).
12 47 C.F.R. § 73.3527(a)(2).
13 Review of the Commission's Rules regarding the Main Studio
Rule and Local Public Inspection Files of Broadcast Television
and Radio Stations, 13 FCC Rcd 15691, 15700 (1998) (``Main Studio
Rule and Public Inspection Files'') recon. granted in part; 14
F.C.C.R. 11,113, 14 FCC Rcd. 11,113 (1999); see also Union
Broadcasting, Inc., 19 FCC Rcd 18588, 185890 (Enf. Bur. 2004).
14 WWIZ, Inc., 37 FCC 685 (1965), aff'd sub nom. Lorain Journal
Co. v. FCC, 351 F.2d 824 (D.C.Cir.1965), cert. denied, 383 U.S.
967 (1966) (``A petition which simply reiterates arguments
previously considered and rejected will be denied.''); Infinity
Radio License, Inc., 19 FCC Rcd 16959, 16960 (2004) citing
Bennett Gilbert Gaines, 8 FCC Rcd 3986 (Rev. Bd. 1993) (``A
petition that simply repeats arguments previously considered and
rejected will be denied.'')
15 In the Forfeiture Order, the Bureau explained: ``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.'' Forfeiture Order, 19 FCC Rcd at 21697.
16 Petition for Reconsideration at 3.
17 47 C.F.R. § 73.3527(c)(2)(i). The political file is described
in 47 C.F.R. 73.3527(e)(5).
18 47 C.F.R. § 73.3527(c)(2)(ii).
19 47 C.F.R. § 73.3527(c)(2)(iii).
20 See, e.g., Paulino Bernal Evangelism, Inc., 19 FCC Rcd. 19922,
19923 (Asst. Chief, Enf. Bur. 2004), recon. pending (violation of
Section 73.3527(c)(1) of the Rules found where licensee claimed
that the public inspection file existed, but that the station
manager forgot where it was located).
21 We note further that Lebanon provided a copy of ``The Public
and Broadcasting'' manual which contains, among other things,
information on how members of the public may obtain copies of
material contained in the public inspection file by telephone,
including the sentence, ``[s]tations can assist callers in this
process and answer questions you may have about the actual
contents of the public file.''
22 See Southern California Broadcasting Co., 6 FCC Rcd 4387, 4388
¶ 5 (1991) recon. denied, 7 FCC Rcd 3454, 3455 ¶ 7 (1992)
(``Southern California Broadcasting'') (finding that a broadcast
licensee's ``frank'' response to a letter of inquiry did not
warrant a downward adjustment).; MAPA Broadcasting, L.L.C., 17
FCC Rcd 10519, 10521 ¶¶ 8, 11 (Enf. Bur. 2002) (finding that a
broadcast licensee's good faith inquiries and disclosures
regarding EAS violations discovered by Commission inspection
were not ``voluntary'' and thus did not warrant any reduction in
the forfeiture).
23 Northwest Utilities, 17 FCC Rcd 4115, 4117 ¶¶ 12-13 (Enf. Bur.
2002) (reducing the forfeiture based on a finding that an
applicant voluntary disclosed its felony convictions by filing
timely amendments, which ``cured its otherwise flawed
applications, thereby . . . enabling the Commission to properly
make the public interest determinations required by Section 309
of the Act, but denying further reduction based on its
cooperation with the investigation).
24 See Southern California Broadcasting, 6 FCC Rcd at 4388 ¶ 5
(1992) (Commission ``expect[s] nothing less than complete candor
under Section 73.1015 of our Rules'' - no downward adjustment
assessed).
25 See Main Studio Rule and Local Public Inspection Files, 13 FCC
Rcd at 15700 (all licensees have a duty to comply with public
inspection file rules).
26 Specifically, the Enforcement Bureau found that the public
inspection file lacked the following portions of the
issues/programs list: the last two quarters of 2001 and all four
quarters of the year 2002. Forfeiture Order, 19 FCC Rcd at
21697-98.
27 Isothermal Community College, 16 FCC Rcd 21360 (Investigations
& Hearings Division, Enf. Bur., 2001) (``Isothermal'').
28 47 C.F.R. § 1.80(b)(4) (``Section II. Adjustment Criteria for
Section 503 Forfeitures, Downward Adjustment Criteria'').
29 See KGB, Inc., 13 FCC Rcd 16396, 16398 ¶ 8 (1998) (reducing
the proposed forfeiture from $11,500 to $9,200 for airing
indecent material due to the broadcast licensee's ``history of
overall compliance prior to these broadcasts, and its apparent
lack of violations in the period since these broadcasts''); Max
Media of Montana, L.L.C., 18 FCC Rcd 21375, 21379 ¶ 14 (Enf. Bur.
2003) (further reducing the proposed forfeiture from $11,000 to
$8,800 for antenna structure lighting and registration violations
due to the licensee's history of overall compliance); South
Central Communications Corp., 18 FCC Rcd 700, 702 ¶ 9 (Enf. Bur.
2003) (reducing the proposed forfeiture from $10,000 to $8,000
for antenna structure lighting violations due to the licensee's
history of overall compliance).
30 47 U.S.C. § 405.
31 47 C.F.R. § 1.106.
32 47 U.S.C. § 504(a).
33 See 47 C.F.R. § 1.1914.