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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) Liability of ) ) Fleet Broadcasting Inc. ) Licensee of Station WFNL (FM) ) Sturgeon Bay, Wisconsin ) and ) Zephyr Broadcasting Inc. ) Licensee of Station WZNL (FM) ) Norway, Michigan ) ) For Forfeitures ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: August 6, 1998 Released: August 10, 1998 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, acting pursuant to authority delegated by 47 C.F.R.  0.283, has under consideration (1) a $4,000 Notice of Apparent Liability ("NAL") issued to Fleet Broadcasting, Inc., ("Fleet"), licensee of WFNL (FM), Sturgeon Bay, Wisconsin; (2) a $4,000 NAL issued to Zephyr Broadcasting, Inc. ("Zephyr"), licensee of WZNL (FM), Norway, Michigan; and (3) a consolidated response to the NALs filed by Fleet and Zephyr. The Bureau concluded in the NALs that Fleet and Zephyr (the "Respondents") were in apparent violation of the Commission's rules requiring a licensee to charge candidates no more than the lowest unit charge ("LUC") of the station and to maintain a political file. While separate corporate entities, the Respondents filed a consolidated response to the NALs because they share common ownership. The Respondents argue that the forfeiture amount is excessive and unwarranted and claim that the appropriate sanction for the political file violation is an admonition and that the forfeiture assessed for the LUC violation should be reduced. 2. Political File Violation. Respondents argue that the appropriate sanction for the political file violation is admonishment, not forfeiture. They contend that the case cited for support by the Bureau in assessing the forfeiture, Southern Arkansas Radio Corporation, 6 FCC Rcd 5130 (1991)("Southern") does not support an assessment of a $2,000 forfeiture because, while $4,000 represented the amount assessed for violation of both the political file and public inspection file rules in Southern, the specific amount assessed for violation of the political file rule is not evident. They state, "[t]he fact the licensee in Southern was issued an unapportioned $4,000 fine for two violations does not suggest that each violation accounted for half (or $2,000) of the total forfeiture." Consolidated Response at 4. In addition, Respondents claim that the forfeiture assessed in Southern is not controlling because the political material did exist in this case, but was kept with other advertising records at the respective stations. Further, Respondents argue that there is no record of complaints from any candidate or the public alleging inability to inspect the political file at either station. 3. In Southern, the Bureau specifically stated that the $4,000 was imposed for violation of both the political file rule and the public inspection file rule. Given the facts of that case, it is reasonable to conclude that the $2,000 forfeiture amount in Southern was intended to be apportioned for violation of the political file rule. Moreover, this reasoning is supported by other case precedent, wherein the Commission imposed $2,000 forfeitures for political file violations and $2,000 forfeitures for public file violations. The fact that the missing records were kept elsewhere at the station and were available upon request is not a mitigating factor. Section 73.1943 clearly states that a licensee shall keep and permit public inspection of a complete and orderly political file and that all required records shall be placed in the political file. Accordingly, a candidate may not have known to request the additional records as it would be reasonable for a candidate to assume that the file was complete. Equally unavailing is Respondents' argument that we should consider the fact that the Bureau did not receive any complaints from a candidate regarding the political file at either station. The fact that we received no candidate complaint does not negate the fact that Respondent stations violated the Commission's rules regarding political files. 4. Lowest Unit Charge Violation. Respondents acknowledge that overcharges were made but argue that a lower forfeiture amount is appropriate. They contend that they acted diligently to assist the Bureau in determining the nature and extent of their violations and promptly took steps to ensure appropriate refunds were made. Respondents claim that the violations were due to lack of diligence by employees entrusted with responsibility for compliance with LUC requirements, not lack of management efforts or any misunderstanding of the requirements. Thus, Respondents argue that this case is distinguishable from Lawson where the Commission assessed a forfeiture of $4,000 because of the station's fundamental lack of understanding of the FCC's lowest unit charge rules and the licensee's failure to assist in the Commission's investigation. In addition, Respondents contend that because the number of violations was not as significant as in other cases, the $2,000 forfeitures against WFNL (FM) and WZNL (FM) should each be reduced. Also, Respondents point out that the Bureau did not receive any complaints from candidates regarding overcharges for political advertising and argue that little could have been done to avoid overcharges without having the principal shareholder review each contract entered for each station. 5. The fact that Respondents promptly issued refunds after Commission inquiry and that they diligently responded to Commission inquiry does not warrant reduction in forfeiture. The Commission expects its licensees to be forthcoming and to respond truthfully and diligently to Commission inquiries. See also 47 C.F.R.  73.1015. We likewise reject Respondents' argument that reduction is warranted because this case is less egregious than Lawson. In crafting this NAL, the Bureau already established that the facts here are distinguishable from Lawson, and consideration has been given to the differences. Specifically, Respondents were assessed a forfeiture of $2,000 each for their LUC violations, not the $4,000 assessed in Lawson. 6. Similarly, we do not believe that the number of LUC violations here as compared with other case precedent, is a basis for a reduction in the forfeiture. Fleet had 237 LUC violations and Zephyr had 211 LUC violations, neither of which can be considered insignificant or de minimis. Further, the fact that there were no complaints filed by a candidate does not lessen Fleet's or Zephyr's culpability or excuse Respondents from complying with the LUC requirements and other Commission rules. 7. Finally, Respondents argue that an admonition and forfeiture reduction is appropriate based on their history of overall compliance with Commission rules. Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b)(2)(D), provides that, in determining the appropriate amount of a forfeiture, the Commission shall take into account the licensee's history of prior offenses. In this regard, we will take into consideration, as the Respondents urge, that Fleet and Zephyr have maintained a history of compliance with Commission rules. We believe, under these circumstances, that a reduction in the forfeiture amount to $3,000 each is reasonable and appropriate. 8. Accordingly, IT IS ORDERED that Fleet Broadcasting Inc. and Zephyr Broadcasting Inc., each forfeit to the United States the sum of three thousand dollars ($3,000) for the repeated violations of Section 73.1942 of the Commission's Rules (47 C.F.R.  73.1942) and the repeated violations of Section 73.1943 of the Commission's Rules (47 C.F.R.  73.1943). Payment of the forfeitures must be made by mailing to the Commission, at the address indicated in the attachment to this Memorandum Opinion and Order, a check or similar instrument payable to the Federal Communications Commission. 9. The Mass Media Bureau will send by Certified Mail -- Return Receipt Requested, copies of this Memorandum Opinion and Order and Forfeiture Order to Fleet Broadcasting Inc. and Zephyr Broadcasting Inc. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau