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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
MBR Licensee, LLC )
Licensee of: )
KIQQ-AM ) File Number: EB-06-LA-162
Barstow, California ) NAL/Acct. No.: 200732900002
Facility ID # 60423 ) FRN: 0005031349
KIQQ-FM )
Newberry Springs, California )
Facility ID # 79388 )
))
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 4, 2006
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that MBR Licensee, LLC ("MBR"), licensee of station KIQQ(AM) in
Barstow, California and station KIQQ-FM in Newberry Springs,
California, apparently willfully and repeatedly violated Section
73.3526 of the Commission's Rules ("Rules") by failing to maintain a
complete public inspection file, including a political file. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that MBR is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On May 2, 2006, an agent from the Enforcement Bureau's Los Angeles
Office conducted an inspection of the main studio for stations
KIQQ(AM) and KIQQ-FM located at 710 US Highway 58, Barstow,
California. Both stations are licensed to MBR. At the time of the
inspection, the agent observed that the stations' public inspection
files appeared to be incomplete. When the agent questioned a staffer
at the main studio about the files, she indicated that the stations
did not have the public file material, as that information was kept at
another station owned by MBR, KAEH-FM, serving Beaumont, California.
3. On August 1, 2006, the Los Angeles agent returned to the main studio
for stations KIQQ(AM) and KIQQ-FM and re-inspected the public
inspection files for the two stations. The agent found that the
public inspection files contained no political files and no ownership
reports. The agent also found that the stations' public inspection
files contained no quarterly radio issues/program lists for the first
or second quarter of 2006, but did contain copies of production orders
for public service announcements and two "community leader surveys."
4. On August 2, 2006, the Los Angeles agent met with the general manager
of KAEH-FM.
The KAEH-FM general manager told the Los Angeles agent that advertising
for a political candidate was paid for and broadcast on station KAEH-FM
on June 3, 4 and 5, 2006, and was also simulcast for free on stations
KIQQ(AM) and KIQQ-FM.
5. On August 21, 2006, the Los Angeles agent again spoke to the KAEH-FM
general manager. The general manager stated that she was creating
political files for stations KIQQ(AM) and KIQQ-FM. She additionally
stated that she was creating a file for ownership reports for the two
stations.
III. DISCUSSION
6. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
7. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM and FM station 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 public inspection file shall be maintained at
the station's main studio location.
8. 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 KIQQ(AM) and KIQQ-FM `s public
inspection files revealed no ownership reports or certifications.
Therefore, MBR failed to comply with Section 73.3526(e)(5) of the
Rules.
9. Section 73.3526(e)(6) of the Rules requires licensees to place in
their public inspection file the records required by Section 73.1943
of the Rules concerning broadcasts by candidates for public office.
Section 73.1943 requires the political file to be "a complete and
orderly record . . . of all requests for broadcast time made by or on
behalf of a candidate for public office [and] . . . [w]hen free time
is provided for use by or on behalf of candidates, a record of the
free time provided shall be placed in the political file." Examination
of the KIQQ(AM) and KIQQ-FM public inspection files revealed no
political files despite the admission by an MBR manager that both
stations had provided free time to a political candidate less than two
months prior to the Los Angeles agent's August 1, 2006, re-inspection
of the stations. Therefore, MBR failed to comply with Section
73.3526(e)(6) of the Rules.
10. Section 73.3526(e)(12) of the Rules 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. The public inspection files
for KIQQ(AM) and KIQQ-FM contained no quarterly radio issues/program
lists for the first or second quarter of 2006, only random copies of
production orders of public service announcements and "community
leader surveys." Therefore, MBR failed to comply with Section
73.3526(e)(12) of the Rules.
11. MBR was aware of the requirement to have a complete public inspection
file, given its employee's statements to the Los Angeles agent when
questioned about public inspection file on May 2, 2006. Therefore,
MBR's violation was willful. No evidence could be found to indicate
that any of the materials missing from the public inspection file were
ever in place. Therefore, MBR'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. Based on the evidence before us, we find
that MBR apparently willfully and repeatedly violated Section 73.3526
of the Rules by failing to maintain complete public inspection files
at the main studio location for stations KIQQ(AM) and KIQQ-FM.
12. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for violation of the public file rules is ten
thousand dollars ($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, a political file, the most recent ownership report or
certification, and multiple quarters 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 MBR is
apparently liable for a $4,000 forfeiture.
IV. ORDERING CLAUSES
13. 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, MBR Licensee, LLC, is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
four thousand dollars ($4,000) for violation of Section 73.3526 of the
Rules.
14. 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, MBR Licensee, LLC, SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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.
16. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Los Angeles Office,
18000 Studebaker Rd., Suite# 660, Cerritos, California 90703 and must
include the NAL/Acct. No. referenced in the caption.
17. 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.
18. 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, 445 12th Street,
S.W., Room 1A625, Washington, D.C. 20554.
19. 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 MBR Licensee, LLC, at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Catherine Deaton
District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.3526.
47 U.S.C. S 503(b).
MBR filed timely renewal applications for both KIQQ(AM) and KIQQ-FM. See
BR-20050801ASV, filed August 1, 2005, and BRH-20050801ASZ, filed August 1,
2005. Both applications were granted November 29, 2005. The Public Notice
announcing the renewal grants was issued on December 2, 2005. See Public
Notice: Broadcast Actions, Report No. 46123, released December 2, 2005. As
no petitions for reconsideration were field against the renewal grants,
these grants became final actions on January 2, 2006.
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)(5).
47 C.F.R. S 73.1943.
47 C.F.R. S 73.1943(a), (b). Section 73.1943(c) requires that "[a]ll
records required by this paragraph shall be placed in the political file
as soon as possible and shall be retained for a period of two years. As
soon as possible means immediately absent unusual circumstances." 47
C.F.R. S 73.1943(c).
47 C.F.R. S 73.3526(e)(12).
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)).
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