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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
The Moody Bible Institute of ) File No. EB-03-KC-131
Chicago ) NAL/Acct. No. 200432560002
Licensee, KMDY-FM ) FRN 0006-7913-54
Keokuk, Iowa )
Adopted: December 21, 2004 Released: December 23,
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of five thousand dollars
($5,000) to The Moody Bible Institute of Chicago (``Moody''),
licensee of station KMDY-FM, for willful violation of Section
73.3527(c) of the Commission's Rules (``Rules'').1 The noted
violation involves Moody's failure to make available a complete
public inspection file for station KMDY-FM during normal business
2.On February 13, 2004, the Commission's Kansas City,
Missouri Office (``Kansas City Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'')2 to Moody for a
forfeiture in the amount of ten thousand dollars ($10,000) for
willful violation of Section 73.3527(c) of the Rules and for
willful and repeated violation of Section 73.1125(a)3 of the
Rules.4 In its March 15, 2004 response, Moody seeks rescission
of the forfeiture.
2. On June 23, 2003, a Commission agent from the Kansas
City Office inspected the main studio of station KMDY-FM, Keokuk,
Iowa. During the inspection, station personnel could not produce
various items that are required to be in the public inspection
file, including: the station license, current station ownership
report, a copy of the publication The Public and Broadcasting,
and a complete issues-programs listing.
3. On July 15, 2003, the Kansas City Office sent the first
of two Letters of Inquiry (``LOI'') to Moody. The second was
sent on September 4, 2003. Moody responded timely to both.
After considering the inspection and the responses to both
Letters of Inquiry, the Kansas City Office issued an NAL to Moody
on February 13, 2004. The NAL found that Moody had apparently
willfully violated Section 73.3527(c) of the Rules by failing to
make available a complete public inspection file for station
KMDY-FM during normal business hours and had apparently willfully
and repeatedly violated Section 73.1125(a) of the Rules by
failing to maintain a full-time management presence at station
4. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),5 Section 1.80 of the Rules,6
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.7 In examining Moody'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, any history
of prior offenses, ability to pay, and such other matters as
justice may require.8
5. Section 73.3527(a)9 of the Rules requires non-
commercial FM broadcast stations to maintain for public
inspection a file containing the material specified in Section
73.3527(e)(1) through (e)(11) of the Rules.10 Section
73.3527(c) of the Rules requires licensees to make the public
file available for public inspection at any time during regular
business hours. On June 23, 2003, during regular business hours,
Moody failed to make available a complete file for public
inspection. Station KMDY's manager could not find the station
license, current ownership report, the publication The Public and
Broadcasting, or a complete issues-program list. We find that
Moody willfully11 violated Section 73.3527(c) because it did not
make specific items available for public inspection that are
required to be in the public file.
6. Moody does not deny that the subject items were missing
from the public file. Moody claims that the documents were later
found and provided to the Kansas City Office subsequent to the
inspection. Moody also asserts that ``the problem was not that
the documents weren't at the station's studio, or even somewhere
in the public inspection file, but [the station manager] was for
some unknown reason unable to locate the documents when asked to
do so by the FCC inspector.''12 Moody advises that the public
inspection file has now been fully organized and contains all the
elements required under the Commission's Rules. Moody contends
that under such facts and circumstances, the Commission has
rescinded a public inspection file forfeiture and cites to
American Family Association, Inc., 18 FCC Rcd 16530 (Enf. Bur.
2003) (``AFA'') and Tabback Broadcasting Company, 15 FCC Rcd
11899 (2000) (``Tabback'').
7. In the AFA case, AFA had been issued an NAL for
violations at station KAUF-FM, including not having copies of the
latest ownership report, the publication The Public and
Broadcasting and the current issues/programs list in the public
file. In its MO&O, the Bureau found that AFA had willfully
violated Sections 73.3527(e)(4), 73.3527(e)(7), and 73.3527(e)(8)
based on its admission that the station manager was behind on
filing and did not place the required items in the public file.
However, in canceling the NAL and admonishing AFA, the Bureau
noted that there was a declaration that the required items were
at least at the station. Here, we have no such declaration.
Moody has not explained where the documents were, much less
definitively stated that the documents were at the station.
Thus, we do not find AFA to be applicable to the instant case.
8. In Tabback, the Commission found that Commission staff
appropriately exercised their discretion in admonishing Tabback
for its refusal on two occasions to permit unrestricted access to
its public file and omission of annual ownership reports from the
file. Tabback stands for the proposition that, under the
circumstances of the case, admonishment was an appropriate
disposition of the case and that Commission staff exercised their
discretion accordingly. It should not be interpreted to mean
that admonishment was the only appropriate disposition. In fact,
in KLDT-TV 55, Inc., 10 FCC Rcd 3198, 3200 (1995) (``KLDT-TV''),
a case cited by the Commission in comparison to Tabback, a
forfeiture was upheld for KLDT-TV `s failure to include three
entire categories of documents in the public file.
9. Finally, we note that, although Moody's public file is
now reported to be complete, no mitigation is warranted on the
basis of Moody's correction of the violations. As the Commission
stated in Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994),
``corrective action taken to come into compliance with Commission
rules or policy is expected, and does not nullify or mitigate any
prior forfeitures or violations.'' 13 Moreover, we also note
that, although the base forfeiture amount for public file
violations is $10,000, after considering the facts and
circumstances of this case, the Kansas City Office determined
that a $5,000 forfeiture was appropriate. We do not believe that
a further reduction is warranted.
10. Based on its response to the NAL, we find that Moody
did not violate Section 73.1125(a) of the Rules and we cancel the
portion of the forfeiture proposed for a violation of the main
11. Moody also claims to have a history of compliance with
the Commission's rules. Although Moody acknowledges that the NAL
found that at least five Notices of Violation had been issued to
Moody, Moody argues that the issuance of a Notice of Violation
(``NOV'') ``is an investigatory device and is not a formal
finding of a violation.'' Moody also states that each of the
cases was resolved in its favor. We disagree. The NOV documents
a finding of a violation. Such a finding may be successfully
refuted, however at the time the NOV is issued a determination
has been made that a violation has occurred. NOVs which are not
subsequently found to be inaccurate, and thus are indicative of
true violations, represent instances of enforcement action.
Prior instances of enforcement action will generally prohibit a
successful claim of history of compliance with the Commission's
rules. There have, indeed, been prior instances of enforcement
action taken against Moody.14 Moreover, to the extent that Moody
argues that the noted NOVs were ultimately resolved in its favor,
we note that the favorable resolution occurred only after Moody
took corrective actions. As such, Moody does not have a history
of overall compliance with the Commission's rules and no
reduction is warranted on this basis.
12. Finally, Moody questions the scrutiny given to its
stations as compared to NPR stations. We note that this is not
the proper forum for such a discussion.
IV. ORDERING CLAUSES
14. 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,15 Moody Bible Institute of Chicago IS LIABLE FOR A
MONETARY FORFEITURE in the amount of five thousand ($5,000) for
its willful violation of Section 73.3527(c) of the Rules at
15. 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.16
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/Acct. No. and FRN
No. referenced above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch, 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, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.17
16. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Moody Bible Institute of Chicago. 820 N. Lasalle
Blvd., Chicago, Illinois and to its counsel, Jeffrey D.
Southmayd, 1220 19th Street, NW, Suite 400, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R.. § 73.3527(c).
2 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432560002 (Enf. Bur., Kansas City Office, February 13, 2004).
3 47 C.F.R. § 73.1125(a).
4 The Kansas City Office attributed $5,000 to the Section
73.3527(c) violation and $5,000 to the Section 73.1125(a)
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
8 47 U.S.C. § 503(b)(2)(D).
9 47 C.F.R. § 73.3527(a).
10 47 C.F.R. §§ 73.3527(e)(1) - 73.3727(e)(11).
11 Section 312(f)(1) of the Act, 47 U.S.C. § 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 . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
12 Response to NAL at page 5.
13 See also AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21875
(2002); Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
14 See NOVs dated August 9, 1999 and March 16, 2004.
15 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.