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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Broadcast Entertainment )
Former Licensee of: File Numbers: EB-07-DV-056
Clovis, New Mexico NAL/Acct. No.:
Facility ID # 61577
) FRN: 0000012898
Clovis, New Mexico
Facility ID # 33402
Adopted: September 7, 2007 Released: September 11, 2007
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eight thousand dollars ($8,000) to Broadcast
Entertainment Corporation ("BEC"), former licensee of stations
KICA(AM) and KKYC(FM) serving Clovis, New Mexico, for willful and
repeated violation of Section 73.3526 of the Commission's Rules
("Rules"). On June 18, 2007, the Enforcement Bureau's Denver Office
issued a Notice of Apparent Liability for Forfeiture ("NAL") in the
amount of $8,000 to BEC for failing to maintain a complete public
inspection file for each station. In this Order, we consider BEC's
arguments that the proposed forfeiture amount should be cancelled
because BEC is no longer the licensee of KICA(AM) and KKYC(FM), and
that BEC rectified the violation after the inspection by the Denver
2. On January 10, 2007, an agent from the Enforcement Bureau's Denver
Office conducted an inspection of KICA(AM) and KKYC(FM) at the
station's main studio location of 1000 Sycamore Street, in Clovis, New
Mexico, during normal business hours. The inspection revealed that the
stations' public inspection files did not contain all of the required
quarterly radio issues/programs lists for the entire license term. The
current license term for each of the stations started on October 1,
3. BEC's General Manager and Sales Manager were present for the
inspection. At the time the inspection was conducted, the agent
observed the quarterly radio issues/programs list for the 2nd and 3rd
quarters of 2006 were missing from the KICA(AM) and KKYC(FM) public
inspection files. The General and Sales Managers were unable to locate
the missing items when the agent inquired about their location.
4. On June 18, 2007, the Denver Office issued a NAL in the amount of
$8,000 to BEC, finding that BEC apparently willfully and repeatedly
failed to maintain complete public inspection files for KICA(AM) and
KKYC(FM). BEC filed a response ("Response") on July 16, 2007, arguing
that the proposed forfeiture amount should be cancelled because BEC is
no longer the licensee of KICA(AM) and KKYC(FM), and that BEC
rectified the violation after the inspection by the Denver Office.
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"). In examining BEC'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 other such matters as justice may
6. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM and FM station licensee 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.
Further, as required by Section 73.3526(b), the public inspection file
shall be maintained at the station's main studio location.
7. 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. 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. The public inspection files
for KICA(AM) and KKYC(FM) were missing quarterly radio issues/program
lists for multiple quarters during the license term, specifically the
2nd and 3rd quarters of 2006. BEC was aware of the requirement to have
a complete public inspection file for KICA(AM) and KKYC(FM) given its
response in the renewal applications, FCC Form 303-S, filed May 27,
2005. In Section III, Question 3, for each station, BEC certified that
the public inspection file had the proper documentation as required by
8. BEC does not dispute that the documents listed above were missing from
the KICA(AM) and KKYC(FM) public inspection files at the time of the
inspection. Instead, BEC argues that, consistent with precedent,
because BEC is no longer the licensee of KICA(AM) and KKYC(FM), the
proposed forfeiture is moot and should be cancelled. We disagree. We
note that the sale of a station, standing alone, is not a basis for
cancelling a proposed forfeiture. We also find that none of the cases
cited by BEC compels us to cancel the forfeiture proposed by the
Denver Office. In Flambo Broadcasting, Inc., ("Flambo") and Americom
Las Vegas Ltd. Partnership ("Americom"), while the Commission noted
that Flambo and Americom no longer held the licenses that were the
subject of the proposed forfeitures, the primary reason given for
rescinding the proposed forfeitures was the significant amount of time
(six years) that had elapsed between the issuance of the underlying
Notices of Apparent Liability for Forfeiture, and the subsequent
Memorandum Opinions and Orders. That is not an issue in this case as
the instant Order is being issued less than three months after the
issuance of the NAL. The amount of time between the issuance of the
Notice of Apparent Liability for Forfeiture and the subsequent
Memorandum Opinion and Order was also significant in the cancellation
of the proposed forfeiture in Grass Roots Broadcasting, LLC ("Grass
Roots"). In that case, over sixteen months had passed between the two
actions and during that period of time the Enforcement Bureau found
that the state business license for Grass Roots had been cancelled and
that Grass Roots had no assets. While BEC states that it expects to be
legally dissolved by the end of this year, it remains an ongoing
concern as of the date of this Order.
9. In Lighthouse Broadcasting ("Lighthouse"), while the Enforcement
Bureau noted that Lighthouse was no longer a Commission licensee, the
Bureau specifically found that the payment of the proposed forfeiture
would impose a financial hardship on Lighthouse and cancelled the
proposed forfeiture. In the instant case, BEC has produced no evidence
or financial documentation showing that payment of the forfeiture
would impose a financial hardship on BEC. In Madison Broadcasting
Group, Inc., ("Madison"), the Enforcement Bureau cancelled a
forfeiture against Madison after "reviewing the particular
circumstances" of that case. Those circumstances included no evidence
of repeated violations, questions regarding the willfulness of the
violation, the dismantling of the antenna structures at issue, and an
incomplete showing of an inability to pay, supported by the fact that
the station operated by the licensee and antenna structure registrant
was silent, with Commission permission, at the time the NAL was
issued. In the instant case, no such extenuating circumstances exist.
Considering the precedent offered by BEC, and the facts of the instant
case, we find that the circumstances do not compel us to utilize the
discretion authorized by Section 1.80(i) of the Rules and we,
therefore, decline to cancel the proposed forfeiture.
10. BEC also argues that its failure to place the missing quarterly
issues/programs lists in the public inspection file was a mistake due
to a change in management and was rectified shortly after the
inspection. The Commission has consistently held that a licensee is
expected to correct errors when they are brought to the licensee's
attention and that such correction is not grounds for a downward
adjustment in the forfeiture. Additionally, 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
11. Based on the information before us, having examined it according to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement, we find that no reduction of the proposed $8,000
forfeiture is warranted.
IV. ORDERING CLAUSES
12. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Broadcast
Entertainment Corporation, IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $8,000 for willfully and repeatedly violating Section
73.3526 of the Rules.
13. 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. 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 Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-
6106. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Broadcast
Entertainment Corporation, at its address of record, and Brendan
Holland, Esquire, Davis Wright Tremaine, LLP, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
On March 21, 2007, the Commission granted an application (File No.
BAL-20070201BFW) to assign the KICA(AM) and KKYC(FM) licenses from
Broadcast Entertainment Corporation to Tallgrass Broadcasting, LLC. The
transaction was consummated on April 2, 2007.
47 C.F.R. S: 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732800005
(Enf. Bur., Western Region, Denver Office, released June 18, 2007).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(b).
47 C.F.R. S: 73.3526(e)(12).
See BEC renewal applications for KICA (AM) and KKYC (FM), File Nos.
BR-20050527AQG and BRH-20050527AQF, respectively. Both applications were
granted on September 26, 2005.
BEC cites to Grass Roots Broadcasting, LLC, 19 FCC Rcd 4018 (EB 2004)
(cancelling proposed $20,000 forfeiture for tower and main studio
violations); Lighthouse Broadcasting, 18 FCC Rcd 9573 (EB 2003)
(cancelling proposed $12,000 forfeiture for failure to maintain emergency
alert system equipment and failure to discontinue operations at night);
Madison Broadcasting Group, Inc.,18 FCC Rcd 4860 (EB 2003) cancelling
$12,000 forfeiture for tower registration and painting issues); Flambo
Broadcasting, Inc., 15 FCC Rcd 23429 (2000) (rescinding proposed
forfeiture for broadcast of indecent material); and Americom Las Vegas
Ltd. Partnership, 15 FCC Rcd 13550 (2000) (rescinding proposed forfeitures
of $111,250 for broadcasting indecent material).
See, e.g., Vista Point Communications, Inc., 14 FCC Rcd 140 (MB 1999);
First Media of Monterey, Inc., 7 FCC Rcd 4589 (MB 1992).
47 C.F.R. S: 1.80(i).
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
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)).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.3526.
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-3868
Federal Communications Commission DA 07-3868