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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File Number: EB-08-LA-0028
Creative Broadcasting Services, Inc.
) NAL/Acct. No.:
Licensee of KTOX(AM) 200832900005
Needles, California FRN: 0009374208
Facility ID # 12189
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 29, 2008
By the Acting Interim District Director, Los Angeles Office, Western
Region, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Creative Broadcasting Services, Inc. ("Creative"), licensee of
station KTOX(AM) in Needles, California, apparently willfully and
repeatedly violated Section 73.3526 of the Commission's Rules
("Rules") by failing to maintain a complete public inspection file.
We conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that Creative is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
2. On February 6, 2008, an agent from the Enforcement Bureau's Los
Angeles Office conducted an inspection of the main studio for station
KTOX(AM) located at 100 Balboa Place, Needles, California. At the time
of the inspection, the agent observed that the station's public
inspection files appeared to be incomplete. Specifically, the files
contained no quarterly radio issues/programs lists for the second
quarter of 2006 and the first, second, third and fourth quarters of
3. At the time of the inspection, Creative's president acknowledged that
no quarterly radio issues/programs lists were in the public file for
2007, and he was unable to locate the quarterly radio issues/programs
lists for 2007 on his computer. Later that day, Creative's president
faxed the Los Angeles Office a list of ten items which he said was the
KTOX 2007 quarterly radio issues/programs list, that he found on an
external drive for his computer.
4. Section 503(b) of the 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. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly.3 The term "repeated" means the commission or omission of
such act more than once or for more than one day.4
5. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM and FM station shall maintain a public inspection file containing
the material, relating to that station, described in paragraphs (e)(1)
through (e)(10) and paragraphs (e)(12) through e(14) of this section
as well as paragraph (e)(16) of this section.5 Further, as required by
Section 73.3526(b), the public inspection file shall be maintained at
the station's main studio location.6
6. Section 73.3526(e)(12) of the Rules requires licensees to place in
their 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.7 This
list is known as the radio issues/programs list and copies of the
lists must be maintained in the file until final action has been taken
on the station's next renewal application. On the day of the
inspection, the public inspection files for KTOX(AM) contained no
quarterly radio issues/program lists for the 2nd quarter of 2006 and
the 1st, 2nd, 3rd and 4th quarters of 2007.
7. In the most recent KTOX renewal application,8 in response to Section
III, Question 3, Creative certified that the public inspection file
for KTOX had the proper documentation as required by Section 73.3526
of the Rules. Creative was aware of the requirement to have a complete
public inspection file, given its response on the KTOX renewal
application; therefore, Creative's violation is willful. No evidence
could be found to indicate that any of the materials missing from the
public inspection file were in place prior to the inspection.
Therefore, Creative's violation is repeated. Where lapses occur in
maintaining the public inspection file, neither the negligent acts nor
omissions of station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify a licensee's
rule violation. 9 Based on the evidence before us, we find that
Creative apparently willfully and repeatedly violated Section 73.3526
of the Rules by failing to maintain complete public inspection files
at the main studio location for station KTOX(AM).
8. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for violation of the public file rules is ten
thousand dollars ($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.10 In this case, although the public inspection file was
partially complete, it did not contain multiple quarters of the radio
issues/programs lists. We therefore conclude a forfeiture amount of
$4,000 is appropriate. Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we
conclude that Creative is apparently liable for a $4,000 forfeiture.
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, 0.311,
0.314 and 1.80 of the Commission's Rules, Creative Broadcasting
Services, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
violation of Section 73.3526 of the Rules.11
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, Creative Broadcasting
Services, Inc., SHALL PAY the full amount of the proposed forfeiture
or SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture. 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/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). Creative Broadcasting Services, Inc., shall also send
electronic notification on the date said payment is made to
11. 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. 20554.12 Please contact the Financial
Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
12. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Rd., Suite# 660, Cerritos, California 90703 and must
include the NAL/Acct. No. referenced in the caption. An electronic
copy shall be sent to WR-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 shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Creative Broadcasting Services, Inc.,
at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
Acting Interim District Director
Los Angeles Office
47 C.F.R. S: 73.3526.
47 U.S.C. S: 503(b).
3 Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
4 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."
5 47 C.F.R. S: 73.3526(a)(2).
6 47 C.F.R. S: 73.3526(b).
7 47 C.F.R S: 73.3526(e)(12).
8 See BR-20050801BKT, granted November 29, 2005.
9 See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999) (citing
Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970) and Eleven Ten
Broadcasting Corp., 33 FCC 706 (1962)). We note that while the Rules state
that all or part of the public inspection file may be maintained in a
computer database, the computer terminal must be made available to the
public. See 47 C.F.R. S: 73.3526(c). At the time of the inspection by the
Los Angeles agent, the missing quarterly issues/programs lists were not
located on a public computer terminal.
10 47 U.S.C. S: 503(b)(2)(E).
11 47 U.S.C. S: 503(b), 47 C.F.R. S:S:0.111, 0.311, 0.314, 1.80, 73.3526.
12 See 47 C.F.RS: 1.1914.
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Federal Communications Commission
Federal Communications Commission