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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No. EB-05-SD-172
Cortaro Broadcasting Corporation
) NAL/Acct. No. 200632940003
Licensee of KCKY (AM), Coolidge, AZ
) FRN: 0007276561
Facility ID No. 48814
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 14, 2006
By the District Director, San Diego District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Cortaro Broadcasting Corporation ("Cortaro"), the licensee of AM
station KCKY, in Coolidge, Arizona, apparently willfully and
repeatedly violated Section 73.3526 of the Commission's Rules (Rules)
by failing to maintain a complete public inspection file. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that KCKY is apparently liable for a forfeiture in
the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On August 9, 2005, an agent of the Enforcement Bureau's San Diego
Office conducted an inspection of the public inspection file for KCKY
at 13968 Harmony Road, Coolidge, Arizona. The agent was informed
during the inspection that there was in effect a local marketing
agreement between KASA Radio Hogar, Inc. and Cortaro. While examining
the public inspection file, the agent observed that the KCKY public
inspection file was not complete. Specifically, there were no copies
of applications filed by Cortaro since 1983, no ownership report since
1990, no radio issues/programs lists since 1994, and no copies of any
time brokerage agreements.
3. Because the license period for radio stations in the State of Arizona
ended on October 1, 2005, Cortaro was required to file a renewal
application for KCKY with the Commission no later than June 1, 2005,
as required by Section 73.3539(a) of the Rules. A search of
Commission's records by the San Diego agent revealed Cortaro did file
a timely renewal application. The search also revealed an assignment
of license in 2003, and an application for a construction permit for a
major modification, filed on January 13, 2005, was also pending. As of
the date of this NAL, the renewal application remains pending.
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 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. The
term "repeated" means the commission or omission of such act more than
once or for more than one day.
5. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM station licensee shall maintain a public inspection file containing
the material, relating to that station, described in paragraphs (e)(1)
through (e)(10) and paragraphs (e)(12) through (e)(14) of this section
as well as paragraph (e)(16) of this section. Further, as required by
Section 73.3526(b), the location of the public file shall be
maintained at the station's main studio location.
6. Section 73.3526(e)(2) of the Rules requires licensees to place in
their public inspection file a copy of any application tendered to the
Commission, and maintain the application in the file until final
action has been taken on the application. During the examination of
the file on August 9, 2005, no copy of the 2005 KCKY renewal
application, which was still pending at the time of the inspection, or
the application for a construction permit, which was also pending at
the time, was found. Therefore, Cortaro failed to comply with Section
73.3526(e)(2) of the Rules.
7. Section 73.3526(e)(5) of the Rules requires licensees to place in
their public inspection file the most recent and complete copy of the
ownership report, along with any licensee statements certifying that
the report is accurate. Examination of KCKY's public inspection file
revealed a 1990 ownership report, but no subsequent ownership reports
or certifications were found. Therefore, Cortaro failed to comply with
Section 73.3526(e)(5) of the Rules.
8. Section 73.3526(e)(12) of the Rules requires AM and FM broadcast
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.
Copies of the lists must be maintained in the file until final action
has been taken on the station's next renewal application. KCKY's
public inspection file contained no radio issues/programs lists for
any year during the license period in question (from October 1, 1997
to the date of inspection). Therefore, Cortaro failed to comply with
Section 73.3526(e)(12) of the Rules.
9. Section 73.3526(e)(14) of the Rules requires that a copy of every
agreement or contract involving time brokerage of the licensee's
station be kept in the public file, and these contracts or agreements
must be maintained in the file for as long as the contract or
agreement is in force. No copies of the local marketing agreement
between KASA Radio Hogar, Inc. and Cortaro, which is a time brokerage
agreement as outlined under Section 73.3613(d)(1), were found in KCKY
public inspection file. Therefore, Cortaro failed to comply with
Section 73.3526(e)(14) of the Rules.
10. In the pending KCKY renewal application, in response to Section III,
Question 3, Cortaro certified that the public inspection file for KCKY
had the proper documentation as required by 73.3526. However, as the
San Diego agent's inspection revealed, Cortaro did not have a complete
public inspection file. Cortaro was aware of the requirement to have a
complete public inspection file, given its response on the KCKY
renewal application, therefore, Cortaro's violation is willful. No
evidence could be found to indicate that any of the materials missing
from the public inspection file were ever in place. In particular, no
evidence could be found to show that the KCKY Radio issues/programs
lists were ever maintained for the duration of the license period.
Therefore, Cortaro's violation is repeated. Where lapses occur in
maintaining the public inspection file, neither the negligent acts nor
omissions of station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify a licensee's
rule violation.
11. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines ("Forfeiture Policy Statement"), and Section 1.80 of the
Rules, the base forfeiture for public file violations is $10,000. 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 violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. In this case, although the public
inspection file was partially complete, it did not contain several
required items, in particular, multiple years of the radio
issues/programs lists. We therefore conclude a forfeiture amount of
$4,000 is appropriate. Applying the Forfeiture Policy Statement,
Section 1.80, and the statutory factors to the instant case, we
conclude that Cortaro is apparently liable for a $4,000 forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Cortaro Broadcasting
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR
FORFEITURE in the amount of four thousand dollars ($4,000) for
violation of Section 73.3526 of the Commission's Rules.
13. 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 for forfeiture, Cortaro 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.
14. 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/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, San Diego District
Office, 4542 Ruffner Street, Room 370, San Diego, California, 92111,
and must include the NAL/Account No. referenced in the caption.
16. 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.
17. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail to Cortaro Broadcasting Corporation.
FEDERAL COMMUNICATIONS COMMISSION
William R. Zears, Jr.
District Director
San Diego District Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.3526.
47 U.S.C. S 503(b).
47 C.F.R. S 73.1020(a) and (a)(13)(i).
47 C.F.R. S 73.3539(a).
See File No. BR - 20050601CET, filed June 1, 2005 (Broadcast Renewal
Application).
See File No. BMJP-20050113AAB, filed January 13, 2005, granted August 15,
2005.
Section 312(f)(1) of the Act, 47 U.S.C. S 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) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[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."
47 C.F.R. S 73.3526(a)(2).
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(e)(2).
47 C.F.R. S 73.3526(e)(2).
47 C.F.R. S 73.3526(e)(5).
47 C.F.R. S 73.3526(e)(12).
47 C.F.R. S 73.3526(e)(14).
47 C.F.R. S 73.3613(d)(1).
See File No. BR - 20050601CET, filed June 1, 2005 (Broadcast Renewal
Application).
See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999) (citing
Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970) and Eleven Ten
Broadcasting Corp., 33 FCC 706 (1962)); Surrey Range Limited Partnership,
71 RR 2d 882 (FOB 1992).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S
1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 73.3526.
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission