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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No.: EB-11-TP-0093
Rollins College ) NAL/Acct. No.: 201232700007
Licensee of Broadcast Station WPRK ) FRN: 0004575213
Winter Park, Florida ) Facility ID No.: 57473
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 25, 2012 Released: July 25, 2012
By the District Director, Tampa Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Rollins College, licensee of Station WPRK, in Winter
Park, Florida, apparently willfully and repeatedly violated Section
73.3527 of the Commission's rules (Rules) by failing to maintain and
make available a complete public inspection file. We conclude that
Rollins College is apparently liable for a monetary forfeiture in the
amount of ten thousand dollars ($10,000). We further direct Rollins
College to submit a written statement signed under penalty of perjury,
no later than 30 days from the release date of this NAL, stating that
Station WPRK is maintaining a complete public inspection file.
II. BACKGROUND
2. On October 28, 2011, in response to a complaint, agents from the
Commission's Tampa Office (Tampa Office), accompanied by the station's
manager, conducted an inspection of Station WPRK's main studio during
regular business hours. In response to a request to inspect the
station's public inspection file, the station manager produced a
public inspection file that was missing all issues/programs lists
after 2007. The station manager was unable to explain why the
issues/programs lists were missing for 2008-2011.
III. DISCUSSION
3. 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 Sections 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.
A. Violation of Public Inspection File Requirements
4. Section 73.3527(a)(2) of the Rules requires non-commercial educational
stations to maintain for public inspection, a file containing
materials listed in that section. Section 73.3527(c)(1) of the Rules
states that the file shall be available for public inspection at any
time during regular business hours. Section 73.3527(e)(8)(i) of the
Rules requires licensees to place in the public inspection file, for
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. On October 28, 2011, in response to a
request during normal business hours to inspect the public inspection
file, Station WPRK failed to make available any copies of the
station's issues /programs lists after the year 2007. There was no
evidence that Station WPRK maintained any issues/programs lists after
2007, and the station had no explanation for the missing items. Based
on the evidence before us, we find that Rollins College apparently
willfully and repeatedly violated Section 73.3527 of the Rules by
failing to maintain a complete public inspection file and apparently
willfully violated Section 73.3527 of the Rules by failing to make
available a complete public inspection file.
B. Proposed Forfeiture and Reporting Requirement
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for failing to maintain
a complete public inspection file 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, any 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 Rollins College is apparently liable
for a total forfeiture of $10,000.
6. We also direct Rollins College to submit a written statement signed
under penalty of perjury, pursuant to Section 1.16 of the Rules, by an
officer or director of Rollins College, stating that is maintaining
issues/programs lists in its public inspection file. This statement
must be provided to the Tampa Office at the address listed in
paragraph 12, below, within thirty (30) calendar days of the release
date of this NAL.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Rollins College is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of Section
73.3527 of the Commission's rules.
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Rollins College SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
9. IT IS FURTHER ORDERED that Rollins College SHALL SUBMIT a statement as
described in paragraph 6 to the Tampa Office within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, South Central Region,
Tampa Office, 4010 W Boy Scout Blvd, Suite 425, Tampa, FL 33607.
Rollins College shall also e-mail the written statement to
SCR-Response@fcc.gov.
10. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Rollins College will also send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID)
and enter the letters "FORF" in block number 24A (payment type
code). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
11. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
12. 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, South
Central Region, Tampa Office, 4010 W Boy Scout Blvd, Suite 425, Tampa,
FL 33607, and include the NAL/Acct. number referenced in the caption.
Rollins College also shall e-mail the written response to
SCR-Response@fcc.gov.
13. 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.
14. 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 First Class Mail to Rollins College at 1000
Holt Avenue, Box 2745, Winter Park, FL 32789-4499.
FEDERAL COMMUNICATIONS COMMISSION
Ralph Barlow
District Director,
Tampa Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 73.3527.
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), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S: 73.3527(a)(2).
47 C.F.R. S: 73.3527(c)(1).
47 C.F.R. S: 73.3527(e)(8)(i).
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.3527.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 12-1176
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Federal Communications Commission DA 12-1176