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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Christian Family Network, Inc. ) File Number EB-06-DT-277
Former Licensee of AM Station WOLY ) NAL/Acct. No. 200732360001
Battle Creek, Michigan ) FRN: 0010140358
Facility ID #11032 )
Adopted: July 14, 2008 Released: July 17, 2008
By the Acting Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of ten thousand dollars ($10,000) to Christian Family
Network, Inc. ("Christian Family Network"), former licensee of AM
station WOLY, in Battle Creek, Michigan, for willfully and repeatedly
violating Section 301 of the Communications Act of 1934, as amended
("Act"), by engaging in unauthorized operations of its station after
its license expired. In this Order, we consider Christian Family
Network's arguments that the forfeiture amount should be cancelled
because the violation was not willful and the station's failure to
file a timely renewal application resulted from its inability to file
2. Christian Family Network's license authorizing it to operate station
WOLY on frequency 1500 kHz expired on October 1, 2004 because
Christian Family Network failed to file a license renewal application,
which was due on June 1, 2004. In a letter dated June 13, 2006, the
Media Bureau notified Christian Family Network that "...all authority
to operate station WOLY(AM), Battle Creek, MI IS TERMINATED and the
call letters are deleted. Any operation of this facility is now
unauthorized and must cease immediately."
3. On July 14, 2006, based on information from an area resident that the
station continued to operate, agents from the Commission's Detroit
Office monitored transmissions on 1500 kHz in Battle Creek, MI. Using
direction finding techniques, the agents determined that the source of
the transmissions on 1500 kHz was 15074 6 . Mile Road, Battle Creek,
MI 49014, which was the previously authorized location for station
4. On August 17, 2006, an agent spoke to the owner and President of
Christian Family Network, Inc., James Elsman. The agent advised Elsman
that the station is unlicensed and therefore is not authorized to
operate. Elsman stated to the agent that he tried to file
electronically, but was unable to do so. Elsman also reported that he
spoke to someone at the FCC who advised him that he was required to
file his license renewal application electronically. The agent
provided Elsman the telephone number for the FCC's Audio Service
5. On March 2, 2007 and May 22, 2007, an agent from the Commission's
Detroit Office monitored 1500 kHz in Battle Creek, MI and, using
direction finding techniques, verified that the station continued to
operate at 15074 6 . Mile Road in Battle Creek. At the time, the agent
also confirmed with the Media Bureau that Christian Family Network had
not filed a license renewal application.
6. On August 16, 2007, the Detroit Field Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $10,000 to
Christian Family Network for apparently willfully and repeatedly
violating Section 301 of the Act by engaging in unauthorized
operations of its station after its license expired. In its response,
Christian Family Network claims that it did not willfully violate
Section 301 of the Act and that it could not file its license renewal
application because it did not have a computer. It reports that it
filed a request for a special temporary authorization ("STA") on
December 10, 2006, and that, since that time, it has assumed that the
request would be answered by the FCC. Christian Family Network also
claims that it does not have the ability to pay the proposed
7. 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 Christian Family Network'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 require.
8. Christian Family Network does not dispute the fact that it repeatedly
operated station WOLY after expiration of its license in violation of
Section 301, but claims that it did not willfully violate Section 301
of the Act. We disagree. Section 312(f)(1) of the Act, 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 or any
rule or regulation of the Commission authorized by this Act...."
"Willful" does not require a finding that there was an intent to
engage in a violation. Here, agents in the Detroit Office found that
Christian Family Network continued to operate station WOLY even after
the Media Bureau advised Christian Family Network that the call sign
for WOLY was deleted and that Christian Family Network no longer had
authority to operate the station. Christian Family Network also was
orally warned by an FCC agent during a telephone conversation on
August 17, 2006 that operation of the station was unauthorized. We
therefore conclude that Christian Family Network's violation of
Section 301 was willful because it continued to operate its station
even after receiving notice from the Media Bureau that its license had
been cancelled and even after receiving an additional warning from an
9. We do not find compelling Christian Family Network's claim that it
could not file its license renewal application because electronic
filing is mandatory and the station did not have a computer. In its
response to the NAL, Christian Family Network claims that it is "a
poor Christian day-time and cannot afford. . . [a computer]."
Christian Family Network goes on to state, however, that it is "very
worried and concerned because this is a serious matter involving
assets worth more than $1,000,000." Even if we accept Christian Family
Network's claim that it could not afford to have a computer at the
station, it had two other options for filing the renewal application.
First, to file an application electronically does not require that the
station itself have a computer. Internet access exists at many public
institutions for a minimal fee. Indeed, when the Commission adopted
the mandatory filing requirements, it explained that, "[g]iven the
falling costs of computer and modem equipment, and the increasing
access to the Internet at public institutions, such as libraries, at
minimal cost, we believe that electronic filing will not constitute an
undue burden or expense for broadcast licensees and permittees
generally." Second, Christian Family Network could have requested a
waiver of the mandatory electronic filing requirement. The Commission
recognized the possible burdens that the mandatory electronic filing
requirement may impose on licensees and indicated when it adopted the
requirements that it would "carefully weigh the needs of such
licensees in ruling on any waiver request."
10. Christian Family Network also reports that it filed a request on
December 10, 2006, seeking a Special Temporary Authorization ("STA")
to operate the station. The Media Bureau has no record of receiving
such a request. We nevertheless address this issue as if Christian
Family Network's request had been received by the Media Bureau. An STA
is available only to licensees and permittees. At the time that
Christian Family Network allegedly filed its STA request, its license
had been expired for more than two years, so it was neither a licensee
nor a permittee and therefore was not eligible to receive an STA. Even
a licensee or permittee, however, is not permitted to operate under
the conditions requested in an STA until such time that the STA is
granted by the Commission and, by its own admission, Christian Family
Network has never received a response to its alleged STA request.
Christian Family Network also states in its response to the NAL that
it "talked with several [FCC] . . . staff people" with regard to the
STA. Although Christian Family Network does not disclose or submit any
documentation regarding the content of those discussions, we note that
the Commission has long held that statements by individual Commission
staff members are not binding on the Commission and the Commission has
repeatedly warned that parties who rely on staff advice or
interpretations do so at their own risk. Thus, even if a staff member
advised Christian Family Network that the Commission would consider an
STA request, such advice has no bearing on our findings here.
11. Christian Family Network reports that it does not have the ability to
pay the proposed forfeiture. As noted in the NAL, the Commission does
not consider reducing or canceling a forfeiture in response to a claim
of inability to pay unless such claim is supported by: (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 respondent's current
financial status. Despite this explicit direction, Christian Family
Network has provided no such documentation to support its claim that
payment of the forfeiture will be burdensome. We therefore decline to
reduce or cancel the proposed forfeiture based on its alleged
inability to pay.
12. We have examined the response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Christian
Family Network willfully and repeatedly violated Section 301 of the
Act and a reduction or cancellation of the proposed forfeiture amount
is not warranted.
13. Finally, we note that agents from the Detroit Office have determined
that Christian Family Network continues to operate its station as of
July 14, 2008, without a license. Christian Family Network's failure
to immediately cease operation of the station may result in further
monetary fines and other more serious sanctions.
IV. ORDERING CLAUSES
14. 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, Christian Family
Network, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$10,000 for willfully and repeatedly violating Section 301 of the Act.
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. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Christian Family Network, Inc. shall also send electronic notification
on the date said payment is made to NER-Response@fcc.gov.
16. IT IS FURTHER ORDERED that Christian Family Network, Inc. SHALL
REPORT, in writing, within 10 days of the date of this Order, the
date it ceased operating its station. Such report shall be submitted
to Sharon L. Webber, Regional Counsel, Federal Communications
Commission, Northeast Region, Enforcement Bureau, One Oxford Valley
Office Building, Room 404, 2300 East Lincoln Highway, Langhorne, PA
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Christian
Family Network, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Acting Regional Director, Northeast Region
47 U.S.C. S: 301.
The agents also conducted a station inspection on July 14, 2006, and found
numerous apparent violations, including inoperable EAS equipment and
missing public inspection file items. Because we find that the station has
willfully and repeatedly operated without a valid license in violation of
Section 301 of the Act, we do not address here the apparent violations
with regard to the station's operations.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732360001
(Enf. Bur., Detroit Office, released August 16, 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).
We note that, because we find here that the violation was repeated, we do
not need to determine whether the violation was willful. See Section
503(b)(1) of the Act, 47 U.S.C. S: 503(b)(1) (violator liable for
forfeiture if violation is willful or repeated). We nevertheless address
Christian Family Network's claim that the violation was not willful.
47 U.S.C. S: 312(f)(1).
See Southern California Broadcasting Co., Memorandum and Order, 6 FCC Rcd
Id., citing MCI Telecommunications Group, Order and Notice of Apparent
Liability, 3 FCC Rcd 509, 514 n.22 (1988); Hale Broadcasting Corporation,
Memorandum Opinion and Order, 79 FCC Rcd 169, 171 (1980).
1998 Biennial Regulatory Review-Streamlining of Mass Media Applications,
Rules, and Processes, Report and Order, 13 FCCR 23056, 23060 (1998).
Id. at 23061.
Section 73.1635(a) of the Commission's Rules provides that an STA "is the
authority granted to a permittee or licensee to permit the operation of a
broadcast facility for a limited period at a specified variance from the
terms of the station authorization or requirements of the FCC rules
applicable to the particular class of station." 47 C.F.R. S: 73.1635(a).
See e.g., Roamer One, Inc. and Certain 220 MHz Non-Nationwide Licensees,
Order, 17 FCC Rcd 3287, n.26 (2002), citing Applications of Hinton
Telephone Company, Memorandum Opinion and Order on Reconsideration, 10 FCC
Rcd 11625, 11637(1995) and AAT Electronics Corp., 53 RR 2d 1241, 1225-26
(1983), aff'd sub nom., P & R Temmer v. FCC, 743 F.2d 918, 931 (D.C. Cir.
Once Christian Family Network's authorization was cancelled and the
station's call sign was deleted, Christian Family Network's only recourse
would have been to file a petition for reconsideration under Section
405(a) of the Act, 47 U.S.C. S: 405(a), which we note does not need to be
filed electronically. Christian Family Network does not address why it did
not file such a petition. We note, however, that unless such petition had
been filed within thirty (30) days of public notice of the cancellation of
the station's authorization, the Commission could not have considered the
petition because we have no discretion to waive the filing requirements in
Section 405(a) of the Act. Thus, the cancellation of Christian Family
Network's authorization to operate station WOLY and the cancellation of
its call sign has become a final Commission order that is no longer is
subject to review.
See NAL para. 14; See also Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines ("Forfeiture Policy Statement"), 12 FCC Rcd 17087, 17106-07
(1997), recon. denied, 15 FCC Rcd 3030 (1999).
Christian Family Network also states in its response to the NAL that it
would need to make any payment of forfeiture in installments. Requests for
installment plans should be directed to the Commission's Chief Financial
Officer, as directed in paragraph 15 below.
See 47 U.S.C. S:S: 401, 501, 503 and 510.
47 U.S.C. S:S: 503(b), 301; 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-1647
Federal Communications Commission DA 08-1647