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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-IH-0819
AMERICAN FAMILY ASSOCIATION ) NAL/Acct. No. 200432080203
Licensee of Station KBMP(FM), ) FRN 0005025911
Enterprise, Kansas ) Facility ID No. 91037
ORDER ON RECONSIDERATION
Adopted: June 22, 2006 Released: June 23, 2006
By the Chief, Enforcement Bureau:
1. In this Order on Reconsideration, we grant in part and deny in part a
Petition filed by American Family Association ("AFA"), the licensee of
non-commercial educational radio Station KBMP(FM), Enterprise, Kansas,
seeking reconsideration of our Forfeiture Order assessing a monetary
forfeiture to AFA in the amount of $10,000. As discussed below, although
we find that the statute of limitations bars us from assessing a
forfeiture for AFA's admitted violation of our main studio rule, we uphold
the forfeiture for AFA's failure to respond fully to an Enforcement Bureau
letter of inquiry. We therefore reduce the forfeiture amount to $3,000 and
admonish AFA for its main studio violation.
2. The Enforcement Bureau released a Notice of Apparent Liability for
Forfeiture ("NAL") to AFA on July 28, 2004. As discussed more fully in the
NAL, AFA placed Station KBMP(FM) into operation on March 6, 2002, with a
main studio colocated with that of its commonly owned Station KCFN(FM),
Wichita, Kansas, prior to Media Bureau action on a main studio rule waiver
request to allow such colocation. AFA subsequently requested Media Bureau
action on the waiver request "before we are hit with forfeitures" due to
the lack of a local main studio for Station KBMP(FM).
3. By letter dated October 31, 2002, the Audio Division of the Media
Bureau granted AFA's waiver request, without prejudice to whatever
enforcement action might be taken with respect to AFA's admitted violation
of the Commission's main studio rule. The Media Bureau concurrently
granted AFA's application for license for Station KBMP(FM). The Media
Bureau then referred the matter to the Enforcement Bureau for possible
4. On November 13, 2003, the Investigations and Hearings Division of the
Commission's Enforcement Bureau sent a letter of inquiry to AFA, notifying
AFA that the Bureau "is investigating allegations that [AFA] . . .
violated the Commission's broadcast main studio rule" and directing it to
provide nine categories of information and copies of all documents
relevant to AFA's responses. AFA responded with a letter dated November
21, 2003, that only addressed two categories of information and provided
only one responsive document.
5. The NAL proposed a forfeiture in the base amount of $7,000 for AFA's
apparent violation of section 73.1125. With respect to the Bureau's LOI to
AFA, the Bureau found that AFA had failed to provide seven out of nine
categories of information identified by the Bureau and had not offered any
explanation for its incomplete response. The Bureau accordingly proposed a
forfeiture in the amount of $3,000 for this violation, reduced from the
base amount of $4,000 because AFA had provided a partial response. After
reviewing AFA's response to the NAL, the Bureau issued the Forfeiture
Order, assessing a forfeiture for the full $10,000 amount specified in the
A. Section 503(b)(6) Precludes A Forfeiture For The Main Studio
6. AFA argues that section 503(b)(6) of the Communications Act, as amended
(the "Act"), bars the Commission from assessing a forfeiture against a
broadcast station licensee if the violation charged occurred more than one
year prior to the date of issuance of the required notice or notice of
apparent liability. AFA claims that its main studio violation at Station
KBMP(FM) ended on October 31, 2002, whereas the NAL was not issued until
July 28, 2004.
7. Section 503(b)(6)(A), which applies to broadcast licensees, provides
that no forfeiture may be imposed "if the violation charged occurred - (i)
more than 1 year prior to the date of issuance of the required notice or
notice of apparent liability; or (ii) prior to the date of commencement of
the current term of [the station's] license, whichever is earlier." In
this case, AFA's license term began on October 31, 2002, the same date on
which the main studio violation ended due to the Media Bureau's grant of
AFA's main studio waiver request. Accordingly, at the time of the
violation, AFA held no license for Station KBMP(FM). Because AFA was a
permittee, rather than a licensee, section 503(b)(6)(A)(ii) does not apply
and the applicable statute of limitations was one year, pursuant to
section 503(b)(6)(B). Although the grant of the station's license was
intended to be "without prejudice" to any subsequent enforcement action
"in light of AFA's apparent violation of the Commission's main studio
requirements," such action did not extend the applicable statute of
limitations. Accordingly, because section 503(b)(6)(B) applies, and that
provision would permit the NAL to have been issued only within one year of
the end of the main studio violation on October 31, 2002, the NAL in this
case was untimely. Accordingly, we grant reconsideration of the imposition
of a $7,000 forfeiture for AFA's admitted main studio violation, and
hereby admonish AFA for that violation.
B. AFA Willfully Failed To Respond In Full To A Bureau Order.
8. AFA has admitted its "failure to provide a satisfactory response" to
the Bureau's LOI. However, it claims that its Response to the LOI was made
in good faith, based on its "understanding [that] the Enforcement Bureau
was only opening an investigation into this matter over a year after the
violation had ceased because it was somehow unaware that the main studio
waiver had been granted." This "understanding" was merely an assumption by
AFA that it did not verify.
9. As noted supra, the Media Bureau explicitly stated when it granted the
main studio waiver to AFA that its action was without prejudice to further
action by the Commission "in light of AFA's apparent violation of the
Commission's main studio requirements." Moreover, the first sentence of
the Enforcement Bureau LOI stated that the Bureau "is investigating
allegations that [AFA] . . . violated the Commission's broadcast main
studio rule." Both of these documents placed AFA on clear and unambiguous
notice that, notwithstanding the Media Bureau's grant of its waiver
request, its failure to maintain a main studio for Station KBMP(FM) was
subject to investigation and possible enforcement action. In response, AFA
unilaterally ignored the Enforcement Bureau's LOI in seven of the nine
categories of information sought, with no explanation for not responding
to the other categories. It apparently did so because it assumed that our
enforcement options for AFA's admitted violations were limited to monetary
forfeiture and that option was foreclosed by the statute. This assumption,
however, is neither accurate nor appropriate for a licensee faced with a
Commission inquiry. We therefore find no basis for reducing or eliminating
the $3,000 forfeiture imposed on AFA in the Forfeiture Order for failing
to comply with a Bureau order.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED THAT, pursuant to section 405(a) of the
Communications Act of 1934, as amended, 47 U.S.C. S 503(b), and section
1.106(j) of the Commission's rules, 47 C.F.R. S 1.106(j), the "Petition
for Reconsideration of Forfeiture Order" filed by American Family
Association IS HEREBY GRANTED IN PART and IS HEREBY DENIED IN PART.
11. IT IS FURTHER ORDERED THAT AFA IS ADMONISHED for its failure to
maintain a main studio for Station KBMP(FM), Enterprise, Kansas, from
March 6, 2002 to October 31, 2002, in willful violation of section 73.1125
of the Commission's rules.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
"Petition for Reconsideration of Forfeiture Order" filed by American
Family Association on November 26, 2004 ("Petition").
American Family Association, Forfeiture Order, 19 FCC Rcd 22025 (EB 2004)
The main studio rule is set forth in section 73.1125 of the Commission's
rules (47 C.F.R. S 73.1125).
American Family Association, Notice of Apparent Liability for Forfeiture,
19 FCC Rcd 14072 (EB 2004).
Letter from Patrick J. Vaughn, General Counsel, AFA, to Marlene H. Dortch,
Secretary of the Commission, dated September 5, 2002.
Letter from Peter H. Doyle, Chief, Audio Division of Commission's Media
Bureau, to Patrick J. Vaughn, dated October 31, 2002 ("Media Bureau Waiver
See File No. BLED-20020306ABB.
Letter from William D. Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, to Patrick J. Vaughn, dated November 13,
Letter from Patrick J. Vaughn to David Brown, dated November 21, 2003
("Response"). See NAL, 19 FCC Rcd at 14074 P 6.
NAL, 19 FCC Rcd at 14077 P 15.
47 U.S.C. S 503(b)(6).
Petition at 5.
See Manahawkin Communications Corp., Memorandum Opinion and Order, 17 FCC
Rcd 342, 356 P 22 (2001).
Media Bureau Waiver Grant at 3.
Forfeiture Order, 19 FCC Rcd at 22028 P 9.
Petition at 6. It is not pertinent whether a licensee's acts or omissions
were specifically intended to violate the applicable law or rule. The term
"willful," as used in section 503(b) of the Act, has been interpreted to
mean simply that the acts or omissions were committed knowingly. See
Liability of Cate Communications Corp., 60 RR 2d 1386 (1986). In this
case, AFA does not argue that its Response, which was verified by Mr.
Vaughn, its General Counsel, was submitted without its knowledge.
As we explained in the Forfeiture Order, AFA could have alleviated its
alleged confusion by simply requesting clarification from the Enforcement
Bureau staff person identified as the contact person in the LOI prior to
the date AFA's Response was due. Forfeiture Order, 19 FCC Rcd at 22028, n.
25. AFA did not do so. The Petition notes that AFA's Response did include
a sentence stating, "Please contact me if you have further questions
regarding AFA's compliance with 47 C.F.R. Section 73.1125 at KBMP-FM,
Enterprise, Kansas." However, that is no substitute for providing, for
each category of information requested, either the information requested
or an explanation as to why the information was not available. Licensees
are expected to respond fully to requests for information from the
Commission. See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC
Rcd 7589, 7591 P 4 (2002) (forfeiture paid). Allowing licensees to provide
incomplete responses, requiring the Bureau to do follow-up inquiries,
would be a substantial and wholly unnecessary drain on the Bureau's
Media Bureau Waiver Grant at 3 (emphasis added).
LOI at 1.
The Commission can admonish a licensee regardless of the statute of
limitations on forfeiture and, were the transgression serious enough,
consider the violation in a licensing context (renewal or revocation). See
47 U.S.C. SS 309(k), 312(a).
Federal Communications Commission DA-06-1307
Federal Communications Commission DA 06-1307