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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Lazer Licenses, LLC )
Licensee of: )
File Nos. EB-07-LA-111
Santa Maria, California )
Facility ID # 38442 )
NAL/Acct. No. 200732900007
Morro Bay, California )
Facility ID # 46401 )
Paso Robles, California )
Facility ID # 2243 )
MEMORANDUM OPINION AND ORDER
Adopted: December 17, 2008 Released: December 19, 2008
By the Deputy Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended ("Act"), and Section
1.106 of the Commission's rules, we deny a Petition for
Reconsideration ("Petition") filed on March 24, 2008, by Lazer
Licenses, LLC, ("Lazer"), the licensee of stations KSBQ(AM), Santa
Maria, California, KLMM-FM, Morro Bay, California and KLUN-FM, Paso
Robles, California, of a Forfeiture Order issued by the Western
Region ("Region") of the Enforcement Bureau, imposing an eight
thousand dollar ($8,000) forfeiture against Lazer, for willful and
repeated violation of Section 73.3526 of the Commission's Rules
("Rules"). The noted violation concerned Lazer's failure to maintain
complete public inspection files for KSBQ(AM), KLMM-FM, and KLUN-FM.
For the reasons discussed below, we deny Lazer's Petition and affirm
2. On March 6, 2007, an agent of the Enforcement Bureau's Los Angeles
Office conducted inspections of the public inspection files for
stations KSBQ(AM), KLMM-FM and KLUN-FM at their main studio location
in Santa Maria, California. The agent discovered that while the public
inspection files were partially complete, there were no
issues/programs lists maintained in the public inspection files for
any of the three stations subsequent to their license renewal on July
28, 2005. The general manager for the three stations stated that he
was fairly new but very familiar with the issues/programs filing
requirements and advised the agent that from the date of inspection
forward, he was putting his Office Manager in charge of maintaining
and filing these records in the public inspection files. He could not
explain why these records for all three stations had not been
maintained in the public inspection files subsequent to the stations'
license renewal on July 28, 2005.
3. On May 17, 2007, the Los Angeles Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $12,000 to Lazer,
finding that Lazer apparently willfully and repeatedly failed to
maintain complete public inspection files for KSBQ(AM), KLMM-FM and
KLUN-FM. Lazer filed a response ("Response") on June 25, 2007, arguing
that the missing issues/programs lists were timely prepared and were
on a different floor of the main studio location but could not be
located because of recent staff changes, and that Lazer has since
modified its procedures concerning public inspection files for all of
its stations. In the Forfeiture Order, the Region reviewed Lazer's
Response and accepted Lazer's explanation concerning the placement of
the issues/programs lists. Consequently, the Region reduced the
proposed forfeiture from $12,000 to $8,000 because of Lazer's good
faith efforts; however, the Region declined to cancel the forfeiture
because the issue/programs lists were not available for inspection by
either the Los Angeles agent or the public, on the day of the
inspection. The Region also declined to reduce the forfeiture based on
the remedial procedures implemented by Lazer.
4. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters. A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied. In its Petition, Lazer
requests that the forfeiture be eliminated or reduced because of
Lazer's good faith and because the forfeiture "is excessive in light
of similar fines issues by the Commission . . . ."
5. Lazer argues that the issues/programs lists were being properly
maintained for the three stations, but were located in a different
area of the main studio. Lazer cites to the Commission's decision in
Citadel Broadcasting Company, Inc., and argues that in that case the
Commission "established a $1,000 forfeiture amount for issues/programs
lists oversights" because the Commission issued a forfeiture for
$1,000 against Citadel for the violation of two missing
issues/programs lists which could not be recreated. In Citadel, the
licensee admitted in its license renewal application for WLXC(FM),
serving Lexington, South Carolina, that its public file was incomplete
and the Commission determined because the station was missing two
issue/programs lists, the appropriate forfeiture amount was $1,000. At
the time of the inspection, Lazer was not merely missing two
issues/programs list for only two quarters. The public files for the
three Lazer stations did not have any issues/programs lists available
since the most recent renewal grants for the stations on July 28,
2005. Consequently, Lazer was missing six quarters of issues/programs
lists for each station, for a total of eighteen missing
issues/programs lists. The amount of the forfeiture is therefore
supported by the Citadel case in which another Citadel station,
WWWZ(FM), serving Summerville, South Carolina, admitted on its renewal
application that its public inspection file was missing a total of
fifteen issues/programs lists. In Citadel, the Commission determined
that WWWZ(FM) was apparently liable for a $10,000 forfeiture for its
self-reported missing issues/programs lists.
6. Lazer also cites to a decision by the Commission's Media Bureau in
which a $1,000 proposed forfeiture for public inspection file
violations was issued rather than the base forfeiture amount of
$10,000. In the cited case, Creek Broadcasting, a former employee,
against whom Creek Broadcasting was granted a restraining order,
filed a complaint against Creek Broadcasting stating, among other
things, that numerous items were missing from the KTMP(AM) public
inspection file. The Media Bureau found that Creek Broadcasting did
not adequately rebut the former employee's allegations, by stating
that "the required items were prepared and placed in the file, but
were subsequently removed from the file by [the employee] upon his
less-than-amicable departure from the station." The Media Bureau did
give weight to Creek Broadcasting's statement that there was a time
that the public inspection file was deficient due to the acts of a
former employee, and proposed a $1,000 forfeiture. In the present
case, Lazer does not allege that the deficiencies in its public
inspection file were caused by persons outside of its control;
consequently, we find that Creek Broadcasting is not dispositive.
7. Lazer further argues that in another case, Trustees of Davidson
College, the Media Bureau reduced a proposed $10,000 forfeiture to
$1,000 after Davidson College determined that three years of
issues/programs lists were missing for only eight months, rather than
three years as originally stated on the Davidson College renewal
application for noncommercial education station WDAV(FM), Davidson,
North Carolina, even though the files were misplaced and could not be
located or reconstructed. Lazer argues that it is in a "better
situation" than Davidson College as it was ultimately able to produce
the missing lists which were "simply in a different part of the main
studio during the inspection." We disagree. We first note that the
missing quarterly issues/programs lists in Trustees of Davidson
College were five years old or more at the time of the filing of the
renewal application, as opposed to the issues/programs lists missing
from the Lazer stations, which were all of the quarterly
issues/programs lists required since the grant of the most recent
renewals for the Lazer stations in 2005. More significantly, the Los
Angeles agent inspected the Lazer stations' main studio on March 6,
2007, and after conversations with Lazer staff, determined that all of
the stations' required quarterly issues/programs list were missing.
According to Lazer's Response to the NAL, Lazer did not attempt to
locate the stations' missing issues and programs lists until May 30,
2007, after the NAL was issued, when an administrative assistant for
Lazer visited the main studio location and "located all of the issues
and programs lists for all three stations." Lazer also stated in its
Response that the "lists have been relocated to the first floor of our
studio and are associated with the other items in our public files."
In other words, almost three months passed after the Los Angeles
Office inspection before Lazer located the missing issues and programs
lists and associated them with rest of the stations' public inspection
files. We also note that this effort was taken apparently only in
response to the NAL. In Trustees of Davidson College, the violation
was reported by the licensee, as part of the renewal process. In the
present case, Lazer was notified of the violation by the Commission
staff, and continued to fail to make any effort to rectify the
violation until a monetary forfeiture was proposed. As the Commission
has stated in the past, 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.
8. Lazer also argues that it was not intentionally trying to deny access
to its public files nor was it negligent in providing such access. To
support this argument, Lazer cites to Citicasters in which the
Commission's Media Bureau determined that a wait of one hour to see
the public inspection file was not unreasonable as the delay was
caused by "legitimate security procedures." While the Region did not
find that Lazer intentionally denied access to the public inspection
file, the delay that Lazer caused by failing to produce the missing
issues/programs lists lasted far greater than one hour; according to
the Lazer NAL Response, it lasted until May 30, 2007, almost three
months after the violation. Therefore, we find no relevance to this
9. We have considered the arguments raised by the Lazer in its Petition
and find they are unpersuasive. Therefore, we deny the Lazer's
Petition, and affirm the Region's Forfeiture Order finding Lazer
liable for a forfeiture in the amount of $8,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, Lazer Licensees, LLC's Petition for
Reconsideration, filed March 24, 2008, IS DENIED, and the Region's
Forfeiture Order IS AFFIRMED.
11. Payment of the forfeitures ordered by the Region and affirmed by this
Memorandum Opinion and 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/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.
12. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Lazer Licenses,
LLC, at its address of record, and Harry C. Martin, its counsel of
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Deputy Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
Lazer Licenses, LLC, 23 FCC Rcd 2589 (EB 2008) ("Forfeiture Order").
47 C.F.R. S: 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732900007
(Enf. Bur., Western Region, Los Angeles Office, released May 17, 2007).
Lazer requested, and received, an extension of time to file its Response.
Forfeiture Order, 23 FCC Rcd at 2590 - 2591.
Forfeiture Order, 23 FCC Rcd at 2591.
Forfeiture Order, 23 FCC Rcd at 2591.
See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., 15 FCC Rcd 18257, (EB
2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain
Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.
EZ Sacramento, Inc., 15 FCC Rcd at 18257.
Petition at 1.
22 FCC Rcd 7083 (2007) ("Citadel").
Petition at 3.
In its Response to the NAL, Lazer produced the missing issue/programs
Citadel, 22 FCC Rcd at 7103.
Creek Broadcasting Corporation, 22 FCC Rcd 18669 (MB 2007) ("Creek
Creek Broadcasting, 22 FCC Rcd at 18672.
Trustees of Davidson College, 20 FCC Rcd 17190 (MB 2005) ("Trustees of
See File No. BRED-20030801ANK, granted June 21, 2004.
Petition at 4.
Response at 1.
Response at 1.
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
Citicasters Licenses, L.P., 22 FCC Rcd 19324 (MB 2007) ("Citicasters").
Citicasters, 22 FCC Rcd at 19334.
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-2724
Federal Communications Commission DA 08-2724