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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
L. Stanley Wall ) File Number: EB-10-PA-0115
Licensee of FM Station WLSW ) NAL/Acct. No.: 201132400008
Scottdale, Pennsylvania ) FRN: 0010019792
Facility ID # 36116 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: June 16, 2011 Released: June 17, 2011
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that L. Stanley Wall ("Wall"), licensee of FM Station WLSW,
Scottdale, Pennsylvania, apparently willfully and repeatedly violated
section 73.3526(e)(12) of the Commission's Rules ("Rules") by failing
to maintain and make available the quarterly issues/programs lists in
the local public inspection file. We conclude that Wall is apparently
liable for a forfeiture in the amount of fifteen thousand dollars
($15,000). We further direct Wall to submit a written statement signed
under penalty of perjury stating that Station WLSW is now in
compliance with section 73.3526 of the Rules.
II. BACKGROUND
2. On April 16, 2010, an agent from the Enforcement Bureau's Philadelphia
Office conducted an inspection with Station WLSW's office assistant at
the station's main studio, located at 2532 Springfield Pike (Route
711), Connellsville, Pennsylvania. The agent reviewed the materials in
Station WLSW's public inspection file and found that the file did not
contain any quarterly issues/programs lists for the current license
term, i.e., it was missing fifteen quarters of issues/programs lists.
3. In response to a Letter of Inquiry issued by the Philadelphia Office,
Wall admitted that the public inspection file did not contain the
issues/programs lists on the day of the inspection, but stated that
"[w]e could tell that a person or persons had gone through the file
and that some items had been removed. . . ." Wall committed to
"replacing the missing files that we had copies of and putting
together new files for those items that we do not have copies of."
Wall further stated that, to avoid any problems in the future, it
planned to make copies of major parts of the file for storage in
another location.
4. On February 7, 2011, agents conducted a follow-up inspection with
Station WLSW's manager at the station's main studio. The agent
reviewed the materials in Station WLSW's public inspection file and
found that the file only contained one issues/programs list (3rd
Quarter 2010), i.e., it was now missing a total of seventeen quarters
of issues/programs lists. In response to another Letter of Inquiry
issued by the Philadelphia Office, Wall admitted that the public
inspection file was missing quarterly issues/programs lists on the day
of the inspection, but claimed that the missing lists had been moved
to storage. Wall further claimed that many of the files in storage
were lost or damaged when part of the roof on an adjoining building
collapsed from the weight of snow. During the inspection on February
7, 2011, however, station employees did not inform the agent that the
missing issues/programs lists had been moved to storage in another
building or that those files may have been lost or damaged. In
addition, although Wall reported in response to the March 2011 LOI
that any files that they can find, save or reconstruct would be
provided, no such files have been provided.
III. DISCUSSION
5. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. 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. The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both section
312 and 503(b) of the Act and the Commission has so interpreted the
term in the section 503(b) context. The Commission may also assess a
forfeiture for violations that are merely repeated, and not willful.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
6. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection a file containing materials listed in
that section. Section 73.3526(c)(1) of the Rules specifies that the
file shall be available for public inspection at any time during
regular business hours, and section 73.3526(e)(12) of the Rules
specifically requires licensees to place in their public inspection
file each calendar quarter a list of programs that have provided the
station's most significant treatment of community issues during the
preceding three month period (known as the issues/programs list). The
issues/programs lists must include "a brief narrative describing what
issues were given significant treatment and the programming that
provided this treatment," including, but not limited to, the time,
date, duration, and title of each program in which the issue was
treated. Copies of the issues/programs list must be retained in the
public inspection file until final action has been taken on the
station's next license renewal application.
7. On April 16, 2010, an agent reviewed Station WLSW's public inspection
file and found that it did not have any quarterly issues/programs
lists for the current license term. In its July 2010 LOI Response,
Wall acknowledged that the issues/programs lists were not in the
station's public inspection file at the time of the April 16, 2010
inspection. On February 7, 2011, agents again inspected Station WLSW's
public inspection file and found that it contained only the
issues/programs list for 3rd Quarter 2010. In its March 2011 LOI
Response, Wall acknowledged that there were missing issues/programs
lists in the station's public inspection file at the time of the
February 7, 2011 inspection. Wall's claim that, at the time of the
February 7, 2011 inspection, many of the issues/programs lists had
been moved to a different location and that some lists were damaged
when a roof collapsed, does not change the fact that the
issues/programs lists were not available at the main studio on the day
of inspection as required by section 73.3526 of the Rules.
Accordingly, based on the evidence before us, we conclude that Wall
apparently willfully and repeatedly violated section 73.3526(e)(12) by
failing to maintain the issues/programs lists and make them available
in Station WLSW's public inspection file.
8. Pursuant to the Commission's Forfeiture Policy Statement, and section
1.80 of the Rules, the base forfeiture amount for violation of the
public file rule is $10,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
an upward adjustment is warranted, given that Wall failed to correct
the violation after the first inspection in 2010. We therefore
conclude that Wall is apparently liable for a forfeiture in the amount
of fifteen thousand dollars ($15,000) for its failure to maintain and
make available all but one of its quarterly issues/programs lists in
its public inspection file. We also direct Wall to submit a written
statement signed under penalty of perjury stating that Station WLSW is
now in compliance with section 73.3526 of the Rules. This statement
must be provided to the Enforcement Bureau at the address listed in
paragraph 13 within thirty days of the release date of this NAL.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204(b),
0.311, 0.314 and 1.80 of the Commission's Rules, L. Stanley Wall is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of section
73.3526(e)(12)of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture and Order, L. Stanley Wall
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
11. IT IS FURTHER ORDERED that L. Stanley Wall SHALL SUBMIT a sworn
statement as described in paragraph 8 to the Enforcement Bureau Office
listed in paragraph 13 within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture and Order.
12. Payment of the 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 Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, 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, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When 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). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, L. Stanley Wall will send
electronic notification on the date said payment is made to
NER-Response@fcc.gov.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Philadelphia Office, One Oxford Valley Building, Suite 404,
2300 East Lincoln Highway, Langhorne, Pennsylvania 19047 and include
the NAL/Acct. No. referenced in the caption. L. Stanley Wall also
shall email the written response to NER-Response@fcc.gov.
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. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to L. Stanley Wall at RD # 7, Box
56, Greensburg, Pennsylvania 15601.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 73.3526(e)(12).
The current license term began when the license renewal application was
granted on July 28, 2006. See BRH-20060329ABN.
Letter from Gene J. Stanbro, District Director, Philadelphia Office,
Northeast Region, Enforcement Bureau, to L. Stanley Wall, dated June 10,
2010 ("June 2010 LOI"); Response from Chris Molton, Station Manager for L.
Stanley Wall, via electronic mail to David Dombrowski, Electronic
Engineer, Philadelphia Office, Northeast Region, Enforcement Bureau, dated
July 30, 2010 ("July 2010 LOI Response"). Wall stated that there were
several weekend station announcers who were suspected of going through the
station's files in order to obtain information about the station's
financial condition . July 2010 LOI Response at 1.
June 2010 LOI at 1.
Letter from Gene J. Stanbro, District Director, Philadelphia Office,
Northeast Region, Enforcement Bureau, to L. Stanley Wall, dated March 9,
2011 ("March 2011 LOI"); Response from L. Stanley Wall to the Philadelphia
Office, Northeast Region, Enforcement Bureau, dated March 29, 2011 ("March
2011 LOI Response").
March 2011 LOI Response at 1.
March 2011 LOI Response at 1.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[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."
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(c)(1).
47 C.F.R. S: 73.3526(e)(12).
Id.
We are skeptical of Wall's claims regarding the missing lists given that
the agent was not told during the inspection that the missing
issues/programs lists were in storage and Wall has never provided any of
the missing lists, despite a commitment to do so.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314, 1.80,
73.3526(e)(12).
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
Federal Communications Commission DA 11-1062
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Federal Communications Commission DA 11-1062