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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Broadcast Entertainment Corporation
)
Former Licensee of:
) File Numbers: EB-07-DV-056
KICA(AM)
) EB-07-DV-057
Clovis, New Mexico
) NAL/Acct. No.: 200732800005
Facility ID # 61577
) FRN: 0000012898
KKYC(FM)
)
Clovis, New Mexico
)
Facility ID # 33402
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 18, 2007
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Broadcast Entertainment Corporation ("BEC"), former licensee of
stations KICA(AM) and KKYC(FM) serving Clovis, New Mexico, apparently
willfully and repeatedly violated Section 73.3526 of the Commission's
Rules ("Rules") by failing to maintain a complete public inspection
file for each station. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that BEC is apparently
liable for a forfeiture in the amount of eight thousand dollars
($8,000).
II. BACKGROUND
2. On January 10, 2007, an agent from the Enforcement Bureau's Denver
Office conducted an inspection of KICA(AM) and KKYC(FM) at the
station's main studio location of 1000 Sycamore Street, in Clovis, New
Mexico, during normal business hours. The inspection revealed that the
stations public inspection files did not contain all of the required
quarterly radio issues/programs lists for the entire license term. The
current license term for each of the stations started on October 1,
2005.
3. BEC's General Manager and Sales Manager were present for the
inspection. At the time the inspection was conducted, the agent
observed the quarterly radio issues/programs list for the 2nd and 3rd
quarters of 2006 were missing from the KICA(AM) and KKYC(FM) public
inspection files. The General and Sales Managers were unable to locate
the missing items when the agent inquired about their location.
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. 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 and FM 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 public inspection file
shall be maintained at the station's main studio location.
6. 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 KICA(AM) and KKYC(FM) were missing quarterly radio issues/program
lists for multiple quarters during the license term, specifically the
2nd and 3rd quarters of 2006. Therefore, BEC failed to comply with
Section 73.3526(e)(12) of the Rules.
7. BEC was aware of the requirement to have a complete public inspection
file for KICA(AM) and KKYC(FM) given its response in the renewal
applications, FCC Form 303-S, filed May 27, 2005. In Section III,
Question 3, for each station, BEC certified that the public inspection
file had the proper documentation as required by 73.3526. Therefore,
BEC's violation is willful. The General Manager and Sales Manager
indicated they did not know the whereabouts of the material missing
from the public inspection files, and no evidence could be found that
the missing material was ever in place. This exclusion applied to two
consecutive quarters of materials; therefore, BEC'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.
8. Based on the evidence before us, we find that BEC apparently
willfully and repeatedly violated Section 73.3526 of the Rules by
failing to ensure a complete public inspection file was properly
maintained at the main studio location.
9. 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 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. Because the public inspection
files for KICA(AM) and KKYC(FM) each contained a portion of the
required items, a downward adjustment to $4,000 per station is
warranted. Applying the Forfeiture Policy Statement, Section 1.80, and
the statutory factors to the instant case, we conclude that BEC is
apparently liable for an $8,000 forfeiture.
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, 0.311,
0.314 and 1.80 of the Commission's Rules, Broadcast Entertainment
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of eight thousand dollars ($8,000) for
violations of Section 73.3526 of the Rules.
11. 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, Broadcast Entertainment
Corporation SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
12. 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.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado, 80226, and must
include the NAL/Acct. No. referenced in the caption.
14. 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.
15. 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.
16. 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 Broadcast Entertainment Corporation.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
47 C.F.R. S 73.3526.
On March 21, 2007, the Commission granted an application (File No.
BAL-20070201BFW) to assign the KICA(AM) and KKYC(FM) licenses from
Broadcast Entertainment Corporation to Tallgrass Broadcasting, LLC. The
transaction was consummated on April 2, 2007.
47 U.S.C. S 503(b).
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)(12).
See BEC renewal applications for KICA (AM) and KKYC (FM), File Nos.
BR-20050527AQG and BR-20050527AQF, respectively. Both applications were
granted on September 26, 2005.
See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(E).
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.
(...continued from previous page)
(continued....)
Federal Communications Commission
2
Federal Communications Commission