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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Butterfield Broadcasting ) File Number EB-02-ST-308
Corporation ) NAL/Acct. No.200332980005
Licensee of AM Broadcast Station ) FRN 0001567817
KULE )
Ephrata, Washington
Facility ID No: 4041
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 30, 2003
By the District Direction, Seattle Office, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Butterfield Broadcasting
Corporation (``Butterfield''), licensee of radio station
KULE (AM) in Ephrata, Washington, has apparently willfully
and repeatedly violated Section 73.3526(e)(1) of the
Commission's Rules (``Rules'')1 by failing to maintain a
copy of the station's authorization in the station's public
inspection file. We conclude, pursuant to Section 503(b) of
the Communications Act of 1934, as amended,2 that
Butterfield is apparently liable for forfeiture in the
amount of two thousand dollars ($2,000).
II. BACKGROUND
2. On May 17, 1999, the Seattle Office issued an
Official Notice of Violation pertaining to KULE for, in
part, violating Section 73.3526(e)(1) of the Rules by
failing to have a current FCC authorization in the public
inspection file.3 The Media Bureau advised the licensee how
to obtain the necessary reissued authorization on May 25,
1999. On November 19, 2002, the Federal Communications
Commission's (``FCC'') Media Bureau notified Butterfield
Broadcasting Corporation, licensee of station KULE, that
according to FCC records the station had failed to obtain a
reissued station authorization. Also at that time, the
Media Bureau specifically advised Butterfield to ensure that
KULE had an accurate and current license, and warned of
possible monetary forfeitures if a subsequent inspection
revealed continuing non-compliance.
3. On January 28, 2003, an agent from the FCC's
Seattle Office inspected KULE's license folder within the
public inspection file at KULE's main studio. The agent
determined that KULE's authorization was not in the
station's public inspection file. Station personnel were
unable to locate a copy of the station authorization
anywhere at the station.
III. DISCUSSION
4. Section 503(b) of the Act provides that any person
who willfully or repeatedly fails to comply substantially
with the terms and conditions of any license, or willfully
or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the
Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has
been interpreted to mean simply that the acts or omissions
are committed knowingly and the term ``repeated'' means the
commission or omission of such act more than once or for
more than one day.4
5. Section 73.3526(e)(1) of the Rules requires that
the station's public inspection file include a copy
of the current FCC authorization to operate the
station, as well as any other documents necessary
to reflect any modifications thereto or any
conditions that the FCC has placed on the
authorizations. The Rules require the station
authorization to be retained in the file until
replaced by a new authorization, at which time a
copy of the new authorization and any related
material must be placed in the file. Butterfield
had been advised at least twice by the FCC of the
requirement to maintain a copy of the station's
authorization in the station's public inspection
file. However, Butterfield neglected to take the
minimal steps necessary to ensure compliance with
the Rule.
6. Based on the evidence before us, we find that
Butterfield Broadcasting Corporation, licensee of
station KULE (AM), Ephrata, Washington, willfully
and repeatedly violated Section 73.3526(e)(1) of
the Commission's Rules by failing to maintain a
copy of KULE's current authorization in the public
inspection file.
7. The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines (``Forfeiture
Policy Statement''),5 sets a base forfeiture amount
of $10,000 for violating the public file rules. In
assessing the monetary forfeiture amount, we must
also take into account the statutory factors set
forth in Section 503(b)(2)(D) of the Act, which
include the nature, circumstances, extent, and
gravity of the violation(s), 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.6 While
the station did maintain a public inspection file,
Butterfield neglected to ensure compliance with the
Rules even after being warned and advised several
times to obtain a reissued license and to maintain
a copy of the station's authorization at the
station. Considering the evidence before us and
applying the Forfeiture Policy Statement and
statutory factors to the instant case, we conclude
a $2,000 forfeiture is warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act7 and Sections 0.111,
0.311 and 1.80 of the Rules,8 Butterfield
Broadcasting Corporation is hereby NOTIFIED of its
APPARENT LIABILITY FOR A FORFEITURE in the amount
of two thousand dollars ($2,000) for violating
Section 73.3526(e)(1) of the Rules.
9. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Commission's Rules, within thirty days
of the release date of this NOTICE OF APPARENT
LIABILITY, Butterfield Broadcasting Corporation,
SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
forfeiture.
10. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order
of the Federal Communications Commission, to the
Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should
note the NAL/Acct. number and FRN referenced in the
caption.
11. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau,
Technical and Public Safety Division, 445 12th
Street, S.W., Washington, D.C. 20554 and must
include the NAL/Acct. number and FRN referenced in
the caption.
12. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of
inability to pay unless the petitioner submits: (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 petitioner's current financial status. Any
claim of inability to pay must specifically
identify the basis for the claim by reference to
the financial documentation submitted.
13. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment
plan should be sent to: Chief, Revenue and
Receivable Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.9
14. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28,
2002), the FCC is engaged in a two-year tracking
process regarding the size of entities involved in
forfeitures. If you qualify as a small entity and
if you wish to be treated as a small entity for
tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your
response to the NAL or in a separate filing to be
sent to the Technical and Public Safety Division,
Enforcement Bureau, Federal Communications
Commission, 445 12th Street S.W., Washington, D.C.
20554. Your certification should indicate whether
you, including your parent entity and its
subsidiaries, meet one of the definitions set forth
in the list provided by the FCC's Office of
Communications Business Opportunities (OCBO) set
forth in Attachment A of this Notice of Apparent
Liability. This information will be used for
tracking purposes only. Your response or failure
to respond to this question will have no effect on
your rights and responsibilities pursuant to
Section 503(b) of the Communications Act. If you
have any questions regarding any of the information
contained in Attachment A, please contact OCBO at
(202) 418-0990.
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE
OF APPARENT LIABILITY shall be sent by Certified
Mail, #7001 2510 0007 6500 0721, Return Receipt
Requested to Butterfield Broadcasting Corporation,
706 Butterfield Road, Yakima, Washington 98901.
FEDERAL COMMUNICATIONS
COMMISSION
Dennis J. Anderson
District Director
Seattle Office
Attachment A - FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. § 73.3526(e)(1).
2 47 U.S.C. § 503(b).
3 File No. 99ST441
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), 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...."
See Southern California Broadcasting Co., 6 FCC Rcd 4387
(1991). Section 312(f)(2), 47 U.S.C. § 312(f)(2), which
also applies to Section 503(b), provides: "[t]he term
'repeated', when used with reference to the commission or
omission of any act, means the commission or omission of
such act more than once or, if such commission or omission
is continuous, for more than one day."
5 The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines 12 FCC Rcd 17087 (1997), (recon. denied), 15 FCC
Rcd 303 (1999) (``Forfeiture Policy Statement'').
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. § 503(b).
8 47 C.F.R. §§ 0.111, 0.311, 1.80.
9 See 47 C.F.R. § 1.1914.