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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Mark V. Aulabaugh
)
Licensee of Radio Station KSEY
) File Number: EB-07-DL-0249
Seymour, TX
) NAL/Acct. No.: 200832500004
Facility ID # 71536
) FRN: 0004931952
Licensee of Radio Station KSEY-FM
)
Seymour, Texas
)
Facility ID # 71535
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 18, 2008
By the District Director, Dallas Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Mark V. Aulabaugh ("Aulabaugh"), licensee of stations KSEY and
KSEY-FM, in Seymour, Texas, apparently willfully and repeatedly
violated Section 73.3526 of the Commission's Rules ("Rules") by
failing to maintain and make available a complete public inspection
file. We conclude, pursuant to Section 503(b) of the Communications
Act of 1934, as amended ("Act"), that Mr. Aulabaugh is apparently
liable for a forfeiture in the amount of eight thousand dollars
($8,000).
II. BACKGROUND
2. Stations KSEY and KSEY-FM are co-located, co-owned stations. On
February 20, 2008, agents of the Commission's Dallas Office of the
Enforcement Bureau ("Dallas Office"), accompanied by Mr. Aulabaugh,
conducted an inspection of the radio stations' main studio during
normal business hours. During the inspection, the agents requested to
inspect the public inspection file for each station. The public
inspection files presented did not contain any quarterly
issues/programs lists. No one at the station was able to produce any
issues/programs lists, and there was no evidence that the lists had
been compiled.
III. DISCUSSION
3. 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) of the Act 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.
4. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection, a file containing materials listed in
that section. Section 73.3526(c)(1) of the Rules states that the file
shall be available for public inspection at any time during regular
business hours. Section 73.3526(e)(12) of the Rules requires a list of
programs that have provided the station's most significant treatment
of community issues during the preceding three month period
("issues/programs list") to be placed in the public inspection file.
The list shall include a brief narrative describing what issues were
given significant treatment and the programming that provided this
treatment. The description of the programs shall include, but shall
not be limited to, the time, date, duration, and title of each program
in which the issue was treated. On February 20, 2008, in response to a
request to inspect the station's public inspection file during normal
business hours, stations KSEY and KSEY-FM were unable to produce any
issues/programs lists, and there was no evidence that the station had
ever compiled or maintained such lists in the public inspection file.
Based on the evidence before us, we find that Mr. Aulabaugh apparently
willfully violated Section 73.3526 of the Rules by failing to make
available a complete public inspection file, and apparently willfully
and repeatedly violated Section 73.3526 of the Rules by failing to
maintain a complete public inspection file.
5. 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 failing to maintain quarterly
issues/programs lists in the Public File is $10,000. Because the
public inspection files for stations KSEY and KSEY-FM contained a
portion of the required items a downward adjustment of the base amount
to $4,000 for each station is warranted (total of $8,000). In
assessing the monetary forfeiture amount, we must also take into
account the statutory factors set forth in Section 503(b)(2)(E) 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 of the Rules, and the statutory factors to the
instant case, we conclude that Mr. Aulabaugh is apparently liable for
a $8,000 forfeiture.
IV. ORDERING CLAUSES
6. 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, Mark V. Aulabaugh 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.
7. 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, Mark V. Aulabaugh SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
8. 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[s] 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). 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. Mr. Aulabaugh also will
send electronic notification on the date said payment is made to
SCR-Response@fcc.gov.
9. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, South Central Region, Dallas Office,
9330 LBJ Freeway, Suite 1170, Dallas, TX, 75243 and must include the
NAL/Acct. No. referenced in the caption.
10. 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.
11. 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 Mark V. Aulabaugh at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
District Director
Dallas Office
South Central Region
Enforcement Bureau
47 C.F.R. S: 73.3526.
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(c)(1).
47 C.F.R. S: 73.3526(e)(12).
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.3526.
(...continued from previous page)
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Federal Communications Commission
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Federal Communications Commission