Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Hensley Broadcasting ) File Number EB-07-PA-027
Licensee of Station WWII ) NAL/Acct. No. 200832400004
Shiremanstown, Pennsylvania ) FRN 0003252848
Facility ID #26973 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 22, 2008
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Hensley Broadcasting, the licensee of AM broadcast station WWII
in Shiremanstown, Pennsylvania apparently willfully and repeatedly
violated Section 73.3526(e)(12) of the Commission's Rules ("Rules")
by failing to maintain issues/programs lists in the public inspection
file. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Hensley Broadcasting is
apparently liable for a forfeiture in the amount of four thousand
dollars ($4,000). We also admonish Hensley for failing to maintain
Emergency Alert System ("EAS") logs in violation of Section 11.61(b)
of the Rules.
II. BACKGROUND
2. On September 16, 2005, agents from the Commission's Philadelphia
Office conducted a random inspection of AM broadcast station WWII in
Shiremanstown, Pennsylvania. The station manager and co-owner, Dean
Lebo, and the office assistant, accompanied the FCC agents during the
inspection. The FCC agents reviewed the contents of the public file
for station WWII and found that the public file did not contain any
quarterly issues/programs lists. Mr. Lebo and the office assistant
informed the agents that the station never maintained a copy of the
radio issues/program lists as a content of the public inspection file.
3. During the inspection on September 16, 2005, the agents also conducted
an inspection of the station's EAS equipment. Although the station's
EAS equipment was operational, the agents found that the station was
not maintaining EAS logs. Mr. Lebo acknowledged that the station has
never maintained any computer printouts or written EAS logs for the
required weekly and monthly EAS tests.
4. On January 25, 2007, an agent from the Philadelphia Office conducted a
follow-up inspection at WWII's main studio. The new station manager,
Joseph Green, assisted the FCC agent during the inspection. The agent
reviewed the public inspection file and did not find any
issues/programs lists for 2006. Joseph Green stated to the agent that
he did not know why the issues/programs lists were not maintained in
the public inspection file.
5. During the inspection on January 25, 2007, the FCC agent also
conducted a follow-up inspection of the station's EAS equipment and
EAS logs. The agent found that the station still was not maintaining
any EAS logs.
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(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 retained in the public inspection file until final action has
been taken on the station's next license renewal application. During
an inspection of the public file for station WWII on September 16,
2005, agents found that Hensley Broadcasting failed to maintain
quarterly issues/programs lists in the public inspection file. The
station manager and co-owner, Dean Lebo and the office assistant
stated that the station had never maintained an issues/programs list
in the public inspection file. During a follow-up inspection on
January 25, 2007, the agent found that Hensley Broadcasting still did
not have an issues/programs list in the WWII public inspection file.
The new station manager, Joseph Green, could not provide any reasons
why such quarterly issues/programs lists were not maintained in the
public inspection file. Based on the evidence before us, we find that
Hensley Broadcasting apparently willfully and repeatedly violated
Section 73.3526(e)(12) of the Rules by failing to maintain an
issues/programs list in the station's public inspection file for any
quarter during 2006.
8. 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 rule is
$10,000. Because WWII's public file was mostly complete and missing
only one item, we conclude a reduction in the base forfeiture amount
for the public file violation to $4,000 is appropriate. 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. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Hensley Broadcasting is apparently liable for a
$4,000 forfeiture.
9. Section 11.61(b) of the Rules provides that EAS entries must be made
in a broadcast station's record in accordance with Section
11.54(b)(12) of the Rules, which states that broadcast stations must
enter the time of receipt of the Emergency Alert Notice ("EAN") and
Emergency Action Termination in the stations logs as specified in
Section 73.1820 of the Rules. Agents found that, between the EAS
inspection on September 16, 2005, and the follow-up EAS inspection on
January 25, 2007, the station did not take any steps to maintain
computer printouts or written logs for required weekly and monthly EAS
tests. Based on the evidence before us, we admonish Hensley
Broadcasting for violating Section 11.61(b) by failing to maintain
EAS logs.
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, Hensley Broadcasting is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violation of Sections
73.3526(e)(12) of the Rules.
11. IT IS FURTHER ORDERED that Hensley Broadcasting IS ADMONISHED for its
violation of Section 11.61(b) of the Rules.
12. 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, Hensley Broadcasting
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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.
14. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, Philadelphia Office,
One Oxford Valley Building, Suite 404, 2300 East Lincoln Highway,
Langhorne, PA 19047 and must include the NAL/Acct. No. referenced in
the caption.
15. 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.
16. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.8
17. 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 Hensley Broadcasting at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Gene J Stanbro
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 73.3526(e)(12).
47 U.S.C. S: 503(b).
47 C.F.R. S: 11.61(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(e)(12).
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. S:S: 0.111, 0.311, 0.314, 1.80,
73.3526(e)(12).
8See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission
2
Federal Communications Commission