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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
MBR Licensee, LLC )
Licensee of: ) File Number:
File Number: EB-08-LA-0031
Barstow, California )
NAL/Acct. No.: 200832900003
Facility ID # 60423 )
Newberry Springs, California )
Facility ID # 79388 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 30, 2008
By the Acting Interim District Director, Los Angeles Office, Western
Region, Enforcement Bureau:
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. 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
2. On February 6, 2008, 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. MBR is the licensee of both stations. At the time of the
inspection, the agent observed that the stations' public inspection
files appeared to be incomplete. When the agent questioned an
employee at the main studio about the files, she indicated that the
two stations did not have the public file material in question as the
previous employee did not file and/or maintain the material and the
records could not be located. The agent explained to the employee that
some of the same type of records were missing during a prior
inspection by the Los Angeles Office on May 2, 2006, and re-inspection
on August 1, 2006.
3. During the inspection, the Los Angeles agent found that the public
inspection files contained no ownership reports and no political
files. The agent also found that the stations' public inspection files
contained no quarterly radio issues/programs lists for the second,
third and fourth quarters of 2006 and third and fourth quarters of
4. On February 13, 2008, the Los Angeles Office received a fax from the
Chief Operator at station KAEH-FM explaining that the public files at
stations KIQQ(AM) and KIQQ-FM were incomplete due to a previous
employee not maintaining the records as instructed by management. The
employee was replaced and management began working with the new
employee to reconstruct the public files. Later on February 13, 2008,
the Los Angeles Office received by mail copies of missing quarterly
radio issues/programs lists for the 3rd and 4th quarters of 2007. No
ownership information, no quarterly radio issues/programs lists for
the 2nd, 3rd or 4th quarters of 2006, and no political file
information was provided. Subsequent to a previous inspection
conducted on May 2, 2006, the general manager of KAEH-FM stated to an
agent of the FCC's Los Angeles Office that she was creating both
political and ownership files for the stations. However, no such files
existed at the time of the most recent inspection.
5. 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.
6. 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.
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 KIQQ(AM) and KIQQ-FM's public
inspection files revealed no ownership reports or certifications.
8. 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
9. 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 2nd, 3rd or 4th quarters of 2006 and 3rd and 4th
quarters of 2007.
10. MBR was aware of the requirement to have a complete public inspection
file, based on the previous inspections conducted by the Los Angeles
Office on May 2, 2006, and August 1, 2006, as well as the December 4,
2006 NAL. 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.
11. 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
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, 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
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, 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. 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/Account Number and FRN
Number referenced above. Payment by check or money order may be mailed
to Federal Communications Commission, P.O. Box 979088, St Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). MBR Licensee, LLC,
shall also send electronic notification on the date said payment is
made to WR-Response@fcc.gov.
14. Requests for full payment under an installment plan should be sent to:
Chief Financial Officer - Financial Operations, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554. Please contact the Financial
Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
15. 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. An electronic
copy shall be sent to WR-Response@fcc.gov.
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. 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 the address of
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
Acting Interim District Director
Los Angeles Office
47 C.F.R. S: 73.3526.
47 U.S.C. S: 503(b).
The Los Angeles Office issued a Notice of Apparent Liability for
Forfeiture in the amount of $4,000 to MBR on December 4, 2006, for
violations of Section 73.3526 at stations KIQQ(AM) and KIQQ-FM ("December
4, 2006, NAL"). MBR paid the proposed forfeiture amount in full. See 47
U.S.C. S: 504(c).
MBR is also the licensee of KAEH-FM, serving Beaumont, California.
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. S:S: 0.111, 0.311, 0.314, 1.80, 73.3526.
See47 C.F.R.S: 1.1914.
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Federal Communications Commission
Federal Communications Commission