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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Mapleton License of San Luis Obispo, )
LLC File No.: EB-10-LA-0032
Licensee of Broadcast Station NAL/Acct. No.: 201132900001
Templeton, California )
Facility ID # 70781 )
Adopted: April 18, 2012 Released: April 19, 2012
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of ten thousand dollars ($10,000) to Mapleton License of San Luis
Obispo, LLC (Mapleton), licensee of Station KXDZ(FM), in Templeton,
California, for willfully and repeatedly violating Section 73.3526 of
the Commission's rules (Rules), which requires broadcast stations to
maintain a complete public inspection file. The noted violations
involve Mapleton's failure to maintain multiple issues/programs list
in the Station KXDZ(FM) public inspection file. In addition, no later
than thirty (30) calendar days from the date of this Forfeiture Order,
Mapleton must submit a statement signed under penalty of perjury that
the Station KXDZ(FM) public inspection file is in compliance with
Section 73.3526 of the Rules.
2. On February 24, 2010, an agent from the Enforcement Bureau's Los
Angeles Office inspected the main studio of Station KXDZ(FM), located
in San Luis Obispo, California. The agent reviewed the content of
Station KXDZ(FM)'s public inspection file and discovered that required
issues/programs lists were missing for the fourth quarter of 2007, the
first, second, and third quarters of 2008, and the first and fourth
quarters of 2009. The agent discussed the file's deficiency with the
Market Manager for the Mapleton stations. The Market Manager agreed
that the documents were missing from the file and indicated that the
period for which the issues/programs lists were missing appeared to
coincide with the departure of the station employee who had previously
maintained the lists.
3. On November 5, 2010, the Los Angeles Office issued a Notice of
Apparent Liability for Forfeiture (NAL) in the amount of $10,000 to
Mapleton for failing to maintain a complete public inspection file.
Mapleton responded to the NAL on December 6, 2010. In its Response,
Mapleton argues that the proposed forfeiture should be cancelled or
reduced because Mapleton "is not responsible for maintaining public
file material from the period of time prior to the Station's current
ownership, and because the amount of the proposed forfeiture
improperly exceeds the forfeiture amounts imposed in similar
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement. In examining Mapleton'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. We considered Mapleton's Response to the NAL in light of
these statutory factors and find that neither cancellation nor
reduction of the forfeiture is warranted for the reasons discussed
5. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM or FM station shall maintain a public inspection file containing
the material relating to that station described in Section 73.3526(e)
of the Rules. Specifically, Section 73.3526(e)(12) 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. Further, as required by
Section 73.3526(b), the public inspection file shall be maintained at
the station's main studio. On February 24, 2010, a Los Angeles agent
found that Mapleton failed to maintain a complete public inspection
file for Station KXDZ(FM), by omitting from the station's file six
quarterly issues/programs lists over three calendar years.
6. Mapleton does not dispute that the six quarterly issues/programs lists
were missing from the Station KXDZ(FM) public inspection file. Rather,
Mapleton contends that the violation occurred prior to the current
license term and that the current license term began on November 4,
2009, when a long-form transfer of control of Mapleton was
consummated. Mapleton further contends that because a transfer of
control occurred, its current owners are not responsible for the
potential violations incurred by its prior owners and that the Rules
do not require its current owner to create documents that were missing
from the Station KXDZ(FM) public inspection file at the time of the
consummation of the transfer of control. Mapleton concludes that an
order released by the Audio Services Division of the Commission's
Media Bureau "compels" the dismissal of an NAL "issued to a licensee
with respect to public file material that was required to be prepared
and placed in the public file by the prior owner."
7. We disagree with Mapleton's contentions, legal analysis, and
conclusion. Regarding the responsibility of a licensee that is the
subject of a transfer of control, Commission precedent is clear:
"liability for violations of Commission's rules inures to the licensee
regardless of an intervening transfer of control." The Commission has
specifically stated that "[t]he fact that the ownership of the company
changed hands does not affect the company's liability." Mapleton does
not argue that it was not the licensee during the period of time
covering the issues/programs lists at issue here; Mapleton only argues
that its ownership changed on November 4, 2009. As the Commission has
indicated in the past, however, the transfer of control of Mapleton is
not relevant to our review here. Consequently, we affirm the findings
of the Los Angeles Office and find that Mapleton failed to maintain a
complete public inspection file for Station KXDZ(FM).
8. Mapleton also argues that the proposed forfeiture amount is excessive
and should be reduced because in other cases, where a licensee failed
to produce seven or fewer issues/programs lists, the forfeiture
proposed was $4,000. While the cases produced by Mapleton show smaller
forfeitures proposed, other precedent proposed even larger forfeitures
for similar numbers of missing issues/programs lists. As each case
presents a unique set of considerations and facts, we must review this
case consistent with the statutory factors listed above. Upon review
we find that Mapleton failed to maintain a complete public inspection
file, beginning in 2008, and that public inspection file continued to
be incomplete over two years later. Throughout its current license
term, Mapleton failed to consistently comply with the Commission's
public file requirements, both before and after it was transferred to
its current owners. Given these facts, we see no reason to reduce the
proposed forfeiture amount.
9. We have examined Mapleton'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 Mapleton
willfully and repeatedly violated Section 73.3526 of the Rules.
Considering the entire record and the factors listed above, we find
that a forfeiture in the amount of $10,000 is warranted. We also note
that Mapleton has not indicated whether the public inspection file for
Station KXDZ(FM) has come into compliance with the requirements of
Section 73.3526 of the Rules. We therefore order Mapleton to submit a
written statement pursuant to Section 1.16 of the Rules signed under
penalty of perjury by an officer or director of Mapleton within thirty
(30) calendar days of the release date of this Forfeiture Order that
Station KXDZ(FM) is now in compliance with Section 73.3526 of the
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's Rules, Mapleton
License of San Luis Obispo, LLC, IS LIABLE FOR A MONETARY FORFEITURE
in the amount of ten thousand dollars ($10,000) for willfully and
repeatedly violating Section 73.3526 of the Commission's Rules.
11. IT IS FURTHER ORDERED that Mapleton License of San Luis Obispo, LLC,
SHALL SUBMIT a written statement, as described in paragraph 9, within
thirty (30) calendar days of the release date of this Forfeiture
Order. The statement must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Road, Suite 660, Cerritos, CA, 90703. Mapleton
License of San Luis Obispo, LLC, shall also e-mail the written
statement to WR-Response@fcc.gov.
12. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days of the
release of this Forfeiture Order. If the forfeiture is not paid within
the period specified, the case may be referred to the U.S. 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. Mapleton License of San Luis Obispo,
LLC, shall also send electronic notification on the date said payment
is made to WR-Response@fcc.gov
13. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested to Mapleton License of San Luis Obispo, LLC, 10900 Wilshire
Boulevard, Los Angeles, CA, 90024, and Kevin P. Latek, Esquire, Dow
Lohnes PLLC, 1200 New Hampshire Avenue NW, Suite 800, Washington, DC
20024, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 C.F.R. S: 73.3526.
Mapleton License of San Luis Obispo, Notice of Apparent Liability for
Forfeiture, 25 FCC Rcd 15550 (Enf. Bur. 2010).
See Response of Mapleton (filed Dec. 6, 2010, in EB-10-LA-0032)
Id. at 1.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999) (Forfeiture
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(e)(12).
47 C.F.R. S: 73.3526(b).
Response at 2.
Id. (citing Citadel Broadcasting Company, Forfeiture Order, 25 FCC Rcd
15060 (Media. Bur. 2010) (Citadel Broadcasting) (licensee not liable for
violation of public inspection file rules that occurred during period
prior to transfer of control to the current ownership).
Mapleton incorrectly asserts that the Station KXDZ(FM)'s license term
commenced on the date of consummation of the transfer of control of
Mapleton Licensee of San Luis Obispo, LLC., from Mapleton Radio, LLC to
Mapleton Radio Holding, LLC. Section 503(b)(6) of the Act defines the
"date of commencement of the current term of such license" as the date of
commencement of the last term of license for which the licensee has been
granted a license by the Commission. 47 U.S.C. S: 503(b)(6). Station
KXDZ(FM)'s most recent renewal application was granted on November 29,
2005, for a term expiring December 1, 2013. See File No. BRH -
20050729DPU, granted November 29, 2005 (2005 Station KXDZ(FM) Renewal
Application). Consequently, the Station KXDZ(FM) current license term
began on November 29, 2005, not on November 4, 2009, and all of the
issues/programs lists at issue here were required to be in the Station
KXDZ(FM) public inspection file at the time of the Los Angeles agent's
inspection. See 47 C.F.R. S: 73.3526(e)(12).
WLDI, Inc., Order, 17 FCC Rcd 14750, 14752 (Enf. Bur. 2002) (entity liable
for violations concerning broadcasting of indecent material regardless of
a subsequent transfer of control) (citing Winslow Communications, Inc.,
Memorandum Opinion and Order, 45 FCC 2d 662 (1974) (licensee responsible
for compliance with Commission radiotelephone operator rules despite
transfer of control of stock of the licensee subsequent to the
EZ Sacramento, Memorandum Opinion and Order, 16 FCC Rcd 4958, 4959 (2001)
(licensee liable for violations concerning broadcast of telephone
conversations despite intervening transfer of control).
Mapleton incorrectly cites to Section 73.3527(d)(1), the rule applicable
to maintenance of the public inspection file for non-commercial
educational stations involved in an assignment of the license, to support
its contention that it is not responsible for maintaining the public
inspection file from the commencement of the license term. Response at 2.
The correct rule applicable to a commercial station involved with a
transfer of control situation is Section 73.3526(d)(2), which provides
that "[i]n cases involving applications for consent to transfer of control
of a permittee or licensee of a broadcast station, the file . . . shall be
maintained by the permittee or licensee." As the licensee, Mapleton was
clearly responsible for maintenance of the public inspection file
throughout the license term.
Mapleton asserts that the Citadel Broadcasting case and its reliance on
certification instructions on Media Bureau broadcast renewal forms
requires a different result. We disagree. We have previously stated that
"[t]he 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." Hensley Broadcasting, Inc.,
Forfeiture Order, 24 FCC Rcd 115, 116 n.9 (Enf. Bur. 2009) (licensee
liable for forfeiture assessed for failing to ensure that multiple
issues/programs lists were placed in a station's public inspection file
despite intervening transfer of control) (Hensley Broadcasting).
Response at 3.
Wilson Broadcasting, Inc., Memorandum Opinion and Order, 22 FCC Rcd 15963
(Enf. Bur. 2007) (affirming a $4,000 forfeiture for missing at least two
issues/programs list in a public file); Citadel Broadcasting, supra note
14 (assessing a $4,000 to a licensee for self-reporting seven missing
issues/programs lists on a renewal); Hensley Broadcasting, supra note 19
(assessing a $4,000 forfeiture for four missing issues/programs lists).
Crocodile Broadcasting Corp., Inc., Notice of Apparent Liability for
Forfeiture and Order, 26 FCC Rcd 1173 (Enf. Bur. 2011) (proposing a
$10,000 forfeiture for missing eight issues/programs list from a public
inspection file); Entertainment Media Trust, Dennis J. Watkins, Trustee,
Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 6877 (Enf. Bur.
2011) (proposing a $12,000 for eight issues/programs lists missing from a
public inspection file).
See, e.g., Lazer Licenses, Order on Review, 27 FCC Rcd 626 (2012)
(affirming Enforcement Bureau determination to reduce, but not cancel, a
forfeiture amount when licensee demonstrates a good-faith effort to
produce missing issues/programs list); Twenty-One Sound Communications,
Inc., Order on Review, 23 FCC Rcd 2436, 2439 (2008) (affirming an
Enforcement Bureau decision that an incomplete public inspection file,
missing only three items, could subject a licensee to monetary forfeitures
regardless of why or for how long the items were missing).
Mapleton objects to the Los Angeles Office's reliance on a statement in
the 2005 Station KXDZ(FM) Renewal Application concerning previous items
missing from the KXDZ(FM) public inspection file along with Mapleton's
promise to comply with the public file requirements going forward.
Response at 4. We find no error as compliance with the public file rules
is anticipated from licensees and despite being put on notice of prior
public inspection file violations, Mapleton, even under its current
owners, made no effort to ensure that the Station KXDZ(FM) public
inspection file was completely compliant with the requirements of Section
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
47 U.S.C. S: 504(a).
Federal Communications Commission DA 12-608
Federal Communications Commission DA 12-608