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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Community Broadcasting, Inc. ) File Number EB-03-KC-021
Licensee of Radio Station KCRL- ) NAL/Acct. No. 200332560019
FM in )
Sunrise Beach, Missouri ) FRN 0005-0141-62
Overland Park, Kansas )
Adopted: November 9, 2004 Released: November 15,
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we impose a
forfeiture of two thousand dollars ($2,000) on Community
Broadcasting, Inc. (``Community'') licensee of Radio Station
KCRL-FM (``Station KCRL''), in Sunrise Beach, Missouri, for
willful and repeated violation of Section 73.3526(a)(2) of the
Commission's Rules (``Rules'').1 The violations involve
Community's failure to maintain all required items in the public
inspection file (``public file'').
2. On March 11, 2003, the District Director of the
Commission's Kansas City, Missouri Field Office (``Kansas City
Office'') issued a Notice of Apparent Liability for Forfeiture
(``NAL'') in the amount of twenty five hundred dollars ($2,500)
to Community for the noted violations.2 Community filed a
response to the NAL on April 10, 2003.
3. On January 29, 2003, an agent of the FCC's Kansas City
Office inspected the public file for radio station KCRL-FM,
Sunrise Beach, Missouri. The agent twice inspected each item,
page by page, in station KCRL's public file and found it did not
contain either a contour map or the current ownership report in
violation of Sections 73.3526(e)(4) and 73.3526(e)(5).3 The
agent contacted Mr. Eben Fowler, KCRL's Director of Broadcasting
Operations and was informed that the current ownership report was
on Mr. Fowler's desk in Overland Park, Kansas. No explanation
was given for the missing contour report. Mr. Fowler promised to
quickly rectify the problems.
4. Community's response requested dismissal of the
proposed forfeiture on multiple grounds: the contour map always
was in the public file, but, the agent missed it in his search;4
the current ownership report (2001) was in the public file and
its early filing of the February 1, 2003 ownership report did not
make the early filed report the report of record,5 thus, no
violation of § 73.3526(e)(5) occurred; no inspection of KCRL's
public file should have occurred because the Commission had been
notified of the date of its scheduled mock inspection by the
Missouri Broadcasters Association (``MBA''); a subsequent mock
inspection by the MBA confirmed that the public file was in
order; the contour map was attached to the construction
application for the station at Exhibit 5 and need not have been
in a separate folder; and Community has no history of violation
of the Commission's Rules. In further support of a reduction or
cancellation of its forfeiture, Community cited a series of
Enforcement Bureau cases.6
5. The District Director assessed the proposed forfeiture
amount in this case in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),7 Section 1.80
of the Rules,8 and The Commission's Forfeiture Policy Statement
and Amendments of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines (``Policy Statement'').9 In examining
Community's response, 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, and any history of prior offenses,
ability to pay, and such other matters as justice may require.10
6. Section 73.3526(a)(2) of the Rules requires every
permittee or licensee of an AM, FM, TV or Class A TV station in
the commercial broadcast services to maintain a public inspection
file (``public file''), containing in its public file the
material described in Sections 73.3526(e)(1) through (e)(10).11
The purpose of the public file is to provide the public with
timely information at regular intervals throughout the license
7. Specifically Section 73.3526(e)(4) of the Rules13
requires that copies of any service contour map reflecting
accurate station information be kept in the station's public
inspection file.14 The agent's January 29, 2003 inspection
failed to reveal any contour map in Community's public file.
Nothing in Community's response or its accompanying affidavits
causes us to overturn the agent's observations.
8. Subsequent reviews of Community's public file by Mr.
Douglas and the MBA on February 12, 2003 and February 26, 2003,
respectively, cannot establish that the contour map which was not
found by the FCC agent on January 29, 2003 was actually in the
file on that date. All the information supplied by Community
regarding the missing contour map relates to later dates and
substantiates only that the map was subsequently in the file. We
note that the agent searched the file twice on January 29, 2003,
and did not find the contour map.
9. Section 73.3526(e)(5) of the Rules specifically
requires retention of the most recent ownership report ``...
until a new, complete ownership report is filed with the FCC, at
which time a copy of the new report ... shall be placed in the
file.'' Community admits that its January 8, 2003 ownership
report was not in the public file on January 29, 2003. Community
contends that the January 2001 ownership report remains the new
ownership report until February 1, 2003, (the date by which the
new ownership report must be filed), notwithstanding its January
8, 2003 filing with the Commission of a new ownership report. We
disagree. Community misconstrues the Rule as the Rule requires
the new report, (i.e. the January 8, 2003 ownership report), to
be placed in the public file and nothing in the Rules
contemplates or permits a delay in placing the report in the
public file if the ownership report is filed early with the
10. Nor can Community's scheduled inspection by MBA under
the Alternative Broadcast Inspection Program Agreement
(``agreement'') between the FCC and the MBA suffice to prevent
the Commission from performing its statutory duties.15 Community
concedes this in its response and the operative agreement
confirms it. The agreement halts inspections by the FCC only
upon certification and FCC notification of the certification by
the MBA.16 Neither event occurred in this instance. The MBA
inspection was requested prior to September 4, 2002, but was not
conducted until February 26, 2003, which was after the January
29, 2003 inspection by the Commission. Accordingly, we determine
that Community willfully17 and repeatedly18 violated Section
73.3526(a)(2) based on the agent's review of the file and the
absence of any contour map within the file at the time of his
inspection and Community's admission that the new ownership
report was not in the public file. Commission precedent supports
imposition of a forfeiture for these public file violations.19
After considering all the circumstances, we believe that
Community's lack of prior violations warrants a reduction of the
forfeiture to two thousand dollars. Accordingly, we reduce the
forfeiture from twenty five hundred dollars to two thousand
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,20 Community Broadcasting, Inc., IS LIABLE FOR A
MONETARY FORFEITURE in the amount of two thousand dollars
($2,000) for its willful and repeated violation of Section
73.3526(a)(2) of the Rules at station KCRL-FM.
12. 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.21
Payment may be made by credit card through the Commission's
Credit and Debt Management Center at (202) 418-1995 or by mailing
a check or similar instrument payable to the order of the Federal
Communications Commission, to the Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
Payment by overnight mail may be sent to Bank One/LB 73482, 525
West Monroe, 8TH Floor Mailroom, Chicago, Illinois 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. The payment
must include the FCC Registration Number (FRN) and the NAL/Acct.
No. referenced in the caption. Requests for full payment under
an installment plan should be sent to: Chief, Credit and Debt
Management Center, 445 12th Street, S.W., Washington, D.C.
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
14. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent by First Class and Certified Mail, Return
Receipt Requested to Community Broadcasting, Inc., 3405 Shady
Bend Drive, Independence, Missouri 64052, attn: Mr. Richard P.
Bott and its Counsel, Harry C. Martin, Esq., Fletcher, Heald &
Hildreth PLC, 1300 North 17th Street, 11th Floor, Arlington,
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. § 3526(a)(2).
2 Community Broadcasting, Inc., NAL/Acct. No. 200332560019 (Enf.
Bur. Kansas City Office rel. March 11, 2003).
3 47 C.F.R. §§ 73.3526(e)(4), 73.3526(e)(5).
4 Affidavits by Community employees familiar with KCRL, Richard
P. Bott, II (Vice President) Eric Douglas (broadband engineer)
believe that the contour map was in the public file attached to
an application at the time of inspection. Douglas believes that
the ownership report dated January 16, 2001 and not the report
dated January 8, 2003 is the operative ownership report as of
January 29, 2003, the date of the inspection.
5 Community chose the Commission's February 1 reporting date for
Nebraska stations as the reporting date for its multiple
stations, including KCRL. Accordingly, Community contends that
its January 8, 2003 ownership report did not become the operative
ownership report until Feb. 1, 2003 and need not have been filed
until such date. Thus, Community contends that the operative
ownership report was in the file on January 29, 2003.
6 South Central Communications Corp., 18 FCC Rcd 700 (EB. 2003);
BanJo Communications Group, Inc., 17 FCC Rcd 26101 (EB. 2002);
Radio One Licenses, Inc. 17 FCC Rcd 18242 (EB. 2002); and Alpine
Broadcasting, Ltd., 17 FCC Rcd 20408 (EB. 2002), all of which
resulted in forfeiture reduction for a history of no prior
violations of the Rules.
7 47 U.S.C. § 503(b).
8 47 C.F.R. § 1.80.
9 12 FCC Rcd 17087 (1997), recon denied, 15 FCC Rcd 303 (1999).
10 47 U.S.C. § 503(b)(2)(D).
11 The additional requirements in Section 73.3526(a)(2) are not
12 Joseph C. Chautin, Esq., Letter, DA 04-1818 (Media Bur. rel.
June 28, 2004).
13 47 C.F.R. § 73.3526(e)(4).
15 Alternative Broadcast Inspection Program, A Cooperative
Program of the Missouri Broadcasters Association and the Kansas
City Office of the Federal Communications Commission executed on
10/25/99 by Robert C. McKinney on behalf of the FCC and 11/2/99
by the MBA. The agreement sets forth specific preconditions for
applicability: ``The MBA will notify the FCC's Kansas City office
and the subject station of the station's compliance by forwarding
a certification of station compliance to both locations. Upon
receipt of this certification, the FCC will promise not to
perform a random, routine inspection for a period of three (3)
years from the date of certification. The FCC will only inspect
a station during this period on the basis of an external
requirement, such as a complaint or targeted compliance program.
The FCC also agrees to abort any attempted inspection upon
showing that 1) a station inspection was conducted within the
last sixty (60) days, or 2) an inspection was conducted within
the last sixty (60) days and deficiencies have yet to be
corrected.'' We note that the agreement was superceded by a new
Alternative Broadcast Inspection Program dated August 15, 2003.
17 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) (finding the term
``willful'' simply requires that the violator knew it was taking
the action in question, irrespective of any intent to violate the
18 The term ``repeated'' means the commission or omission of an
act more than once. 47 U.S.C. § 312(f)(2).
19 See KLDT-TV 55, Inc., 10 FCC Rcd 3198 (1995) (forfeiture
assessed for failure to include three categories of documents in
the public file); Greenwood Acres Baptist Church, DA 04-1580
(Enf. Bur. rel. June 2, 2004); See also, Dorann Bunkin, Esq., DA-
04-1812 (Media Bur. rel. June 28, 2004); Joseph C. Chautin,
Esq., supra: Infinity Radio Operations, Inc., DA 04-2517 (Enf.
Bur. rel. August 12, 2004) (James S Kerr, Esq., 19 FCC Rcd 6319
(Media Bur. 2004).
20 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
21 47 U.S.C. § 504(a).
22 See 47 C.F.R. § 1.1914.