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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Hensley Broadcasting, Inc. ) File Number EB-07-PA-027
Licensee of Station WWII ) NAL/Acct. No. 200832400004
Shiremanstown, Pennsylvania ) FRN 0003252848
Facility ID #26973 )
Adopted: January 12, 2009 Released: January 14, 2009
By the Regional Director, Northeast Region, Enforcement Bureau:
I. INTRODUCTION AND BACKGROUND
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of four thousand dollars ($4,000) to Hensley Broadcasting,
Inc. ("Hensley"), licensee of AM radio station WWII, Shiremanstown,
Pennsylvania, for willfully and repeatedly violating Section
73.3526(e)(12) of the Commission's Rules ("Rules") by failing to
maintain issues/programs lists in the station's public inspection
2. On January 22, 2008, the Philadelphia Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $4,000 to
Hensley for failing to maintain an issues/programs list in the
station's public inspection file for any quarter during 2006. In this
Order, we consider Hensley's arguments that the forfeiture amount
should be cancelled because subsequent to the violations found during
the station inspections on September 16, 2005, and January 25, 2007,
but prior to the issuance of the NAL, the Commission approved, and
Hensley consummated on June 15, 2007, a transfer of control from Carl
C. Kuehn and the Estate of M. Dean Lebo to Joseph L. Green.
3. 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 Hensley'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
4. Hensley does not dispute the findings in the NAL and does not deny
that, at all times relevant to this matter, Hensley has been the
licensee of WWII. Rather, Hensley claims that cancellation of the
proposed forfeiture is warranted because 100% of Hensley's stock was
transferred on June 15, 2007, prior to the issuance of the NAL. We
disagree. Commission precedent is clear that "liability for violations
of Commission rules inures to the licensee regardless of an
intervening transfer of control." We therefore conclude that Hensley
is responsible for the public file violations set out in the NAL.
5. We have examined Hensley's 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 the $4,000
forfeiture proposed in the NAL is warranted.
IV. ORDERING CLAUSES
6. 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, Hensley Broadcasting,
Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for
willfully and repeatedly violating Section 73.3526(e)(12) of the
7. 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.
Hensley Broadcasting, Inc. shall also send electronic notification on
the date said payment is made to NER-Response@fcc.gov
8. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Hensley
Broadcasting, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
47 C.F.R. S: 73.3526(e)(12).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 20083240004
(Enf. Bur., Philadelphia Office, rel. January 22, 2008). In the NAL, the
Philadelphia Office also admonished Hensley for failing to maintain
Emergency Alert System ("EAS") logs in violation of Section 11.61(b) of
the Rules. 47 C.F.R. S: 11.61(b).
The Commission granted the transfer of control application, File No.
BTC-20070301ABB, on May 8, 2007, and the parties consummated the transfer
on June 15, 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).
See WLDI, Inc., 17 FCC Rcd 14750, 14752 (EB 2002), citing Winslow
Communications, Inc., 45 FCC2d 662 (1974) (rejecting licensee's argument
that it should not be liable for violation when violation occurred prior
to transfer of control of licensee's stock); see also EZ Sacramento, Inc.,
Memorandum Opinion and Order, 16 FCC Rcd 4958, 4959 (2001) (finding that
fact ownership of the company changed hands does not affect the company's
liability)(subsequent citations omitted). The case cited by Hensley in its
response, Georgia Eagle Broadcasting, Inc., DA 07-3540 (rel. August 10,
2007), is inapposite because that case involved the assignment of a
station from one licensee to another licensee and not the transfer of
stock, as is the case here. As the Bureau noted in WLDI, Inc., negotiating
an assignment of license as opposed to a transfer of control can insulate
a new owner from liability for the prior owner's violations. See WLDI,
Inc., 17 FCC Rcd at n. 13 (subsequent citations omitted).
We also note that Hensley claims that its position that current station
owners are not responsible for violations of prior station owners is
supported by the instructions in the license renewal application (FCC Form
303-S), which states that all of the certifications in the license renewal
application cover the license renewal term except that "if the station
license was assigned or transferred during the subject license [term]
[sic] pursuant to a "long form" application on FCC Form 314 or 315, the
renewal applicant's certifications should cover only the period during
which the renewal applicant held the station's license." The issues of
where liability lies for violations that occurred prior to a transfer of
control and whether a new owner can certify to actions that took place
prior to the transfer of control are entirely different issues. With
regard to liability, the licensee remains the same after a transfer of
control and therefore liability, as a legal matter, remains with the
licensee. In the context of a license renewal application, a transferee
cannot, as a legal or practical matter, certify that the licensee complied
with the Commission's rules during a period of time prior to the
transferee obtaining ownership.
47 U.S.C. S: 503(b), 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 09-24
Federal Communications Commission DA 09-24