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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Community Broadcast Group, Inc. ) File Number: EB-06-DL-075
Licensee of Station KZEY ) NAL/Acct. No.: 200732500003
Tyler, Texas ) FRN: 0003773140
Facility ID # 12809 )
MEMORANDUM OPINION AND ORDER
Adopted: December 10, 2007 Released: December 12, 2007
By the Associate Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order"), we dismiss the
Petition for Reconsideration filed by Community Broadcast Group, Inc.,
("Community") licensee of AM Broadcast Radio station KZEY, in Tyler,
Texas. Community seeks reconsideration of the Forfeiture Order in
which the Enforcement Bureau ("Bureau") found it liable for a monetary
forfeiture in the amount of eleven thousand dollars ($11,000) for
willful and repeated violation of Sections 73.1350(a) and 73.3526 of
the Commission's Rules ("Rules"). The noted violations involve
Community's failure to operate the station in accordance with the
station authorization and failure to make available a complete public
inspection file. For the reasons provided below, we dismiss
Community's petition for reconsideration as untimely.
2. On June 5, 2006, agents from the Commission's Dallas Office of the
Enforcement Bureau ("Dallas Office") conducted an inspection of
station KZEY's main studio located in Tyler, Texas. When the agents
asked to inspect the station's public inspection file during regular
business hours, the station could not produce a complete file. The
file contained no Radio Issues/Program lists from any quarter. At the
transmitter site, the agents found that the station was operating in
an omni-directional mode from a single tower. The station
authorization for station KZEY requires that the station operate in a
two tower directional configuration. Station personnel stated that the
station had been operating in an omni-directional mode from a single
tower for more than a year.
3. On January 30, 2007, the Commission's Dallas Office of the Enforcement
Bureau ("Dallas Office") issued a Notice of Apparent Liability for
Forfeiture ("NAL") in the amount of $11,000 to Community. Community
submitted a late-filed response to the NAL requesting a reduction of
the forfeiture, which was received by the Dallas Office on March 22,
4. The Bureau affirmed the NAL in the Forfeiture Order, finding that
Community provided no grounds upon which to cancel or reduce the
forfeiture. Community filed a petition for reconsideration of the
Forfeiture Order, which the Commission received on May 25, 2007.
5. Section 405 of the Communications Act of 1934, as amended ("Act")
requires that a petition for reconsideration of a Commission action or
an action by delegated authority must be filed no later than 30 days
after the action that is the subject of the appeal. Once it has made
public notice of the action pursuant to Section 1.4 of the Rules, the
Commission loses jurisdiction to consider an appeal after 30 days have
passed. Section 1.106 of the Rules reflects this statutory mandate.
6. Community did not timely file his petition for reconsideration of the
Forfeiture Order. The Forfeiture Order was released and placed on
public notice on March 29, 2007. The thirtieth day after March 29,
2007 was April 28, 2007 (a Saturday). Community's petition for
reconsideration was therefore due on April 30, 2007. Community's
petition for reconsideration was not received by the Commission until
May 25, 2007. After April 30, 2007, pursuant to the Act, the
Commission has no jurisdiction to consider Community's petition for
reconsideration. Accordingly, we must dismiss Community's petition for
reconsideration as untimely.
7. Assuming arguendo that Community's petition was timely filed, we would
nevertheless deny it. Community's petition contained no information
other than a sentence stating "please consider this letter as a
petition for reconsideration." Accordingly, Community provided no
grounds upon which to reconsider the forfeiture.
IV. ordering clauses
8. Accordingly, IT IS ORDERED that, pursuant to Section 405(b) of the
Communications Act of 1934, as amended, and Section 1.106(f) of the
Commission's Rules, the petition for reconsideration filed by
Community Broadcast Group, Inc. IS DISMISSED.
9. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Community Broadcast
Group, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
eleven thousand dollars ($11,000) for violation of Sections 73.1350(a)
and 73.3526 of the Rules
10. Payment of the forfeiture assessed by the Forfeiture Order 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
payment of the full amount of the NAL under an installment plan should
be sent to: Associate Managing Director - Financial Operations, 445
12th Street, S.W., Room 1A625, Washington, D.C. 20554.
11. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Community
Broadcast Group, Inc. at its address of record and to its counsel,
Edsel Guydon, Guydon Love LLP, 3309 Duke Street, Alexandria, VA 22314.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
Community Broadcast Group, Inc., Forfeiture Order, 22 FCC Rcd 5412 (South
Central Region, Enf. Bur. 2007) ("Forfeiture Order").
47 C.F.R. S:S: 73.1350(a), 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732500003
(Enf. Bur., Dallas Office, released January 30, 2007).
47 U.S.C. S: 405(a).
47 C.F.R. S: 1.4.
47 C.F.R. S: 1.106(f).
Daily Digest, Vol. 26, No. 60, March 29, 2007.
47 C.F.R. S: 1.4(j) provides that, when the calculated filing date falls
on a "holiday," the document is due to be filed on the next business day.
47 C.F.R. S: 1.4(e)(2) defines the term "holiday" as "Saturday, Sunday,
officially recognized Federal legal holidays and any other day on which
the Commission's offices are closed and not reopened before 5:30 p.m."
Reuters Ltd. v. FCC, 781 F. 2d 946, 951 (D.C. Cir. 1986); National Black
Media Coalition v. FCC, 760 F. 2d 1297, 1299-1300 (D.C. Cir. 1985, Scalia,
J.) (FCC has no jurisdiction to consider an appeal after 30 days have
passed from date of public notice, distinguishing Gardner v. FCC, 530 F.
2d 1086 (D.C. Cir. 1976)).
Metromedia, Inc., 56 FCC2d 909 (1975) (Commission may not waive 30 day
filing period to accept a petition for reconsideration filed one day
late); Mobile Telephone, Inc. 91 FCC 2d 907 P:P: 4-5 (1982); Nextel
Communications, Inc., 13 FCC Rcd. 281, 283 P: 6 (Wireless Telecom. Bur.
47 C.F.R. S: 1.106(f).
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.1350(a), 73.3526.
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 07-4935
Federal Communications Commission DA 07-4935