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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
WSKQ Licensing, Inc. ) File Number EB-09-NY-0186
Licensee of WSKQ-FM ) NAL/Acct. No. 200932380007
New York, New York ) FRN 0004976882
Facility ID # 61649 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: August 26, 2009
By the District Director, New York Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that WSKQ Licensing, Inc. ("WSKQ"), licensee of commercial station
WSKQ-FM, New York, New York, apparently willfully violated Section
73.3526 of the Commission's Rules ("Rules") by failing to make
available a complete public inspection file. We conclude, pursuant to
Section 503(b) of the Communications Act of 1934, as amended ("Act"),
that WSKQ is apparently liable for a forfeiture in the amount of four
thousand dollars ($4,000).
2. On May 15, 2009, an agent from the Commission's New York Office of the
Enforcement Bureau ("New York Office") inspected station WSKQ-FM's
public inspection file at its main studio in New York, New York during
normal business hours. The agent conducted the inspection with
WSKQ-FM's Market Manager and Program Specialist, neither of whom was
able to locate or make available the Issues/Programs lists for 2007,
2008, and for the first quarter of 2009. The latest Issues/Programs
lists in the file were from 2006. The employees were given as much
time to locate the files as needed but suspended the search after
searching all work areas where the Issues/Programs lists could have
been located. The Market Manager reported to the agent that they had
the files and would contact the agent when they were located.
3. On May 28, 2009, the New York Office sent a Letter of Inquiry (LOI) to
WSKQ regarding the missing Issues/Programs lists for 2007, 2008, and
2009. On June 18, 2009, the New York Office received a reply to the
LOI. WSKQ stated in its reply that, during some building renovations,
the public inspection file was placed in two file boxes and moved to a
temporary location where employees were reviewing the documents and
removing ones that no longer needed to be retained. WSKQ further
stated that, although the radio issues/programs lists for 2007, 2008
and the first quarter of 2009 were prepared in a timely fashion, and
the re-labeling and reorganization of that portion of the public file
had been completed at the time of the inspection, due to inadvertent
error, those radio issues/programs lists had not yet been returned to
the public inspection file. They further stated that, once this
oversight was brought to the Station's attention, the missing
issues/programs lists were promptly placed in the public file.
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) 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.
5. Section 73.3526(a)(2) of the Rules requires every licensee in the
commercial broadcast services to maintain for public inspection, a
file containing materials listed in that section. The Rules require
that the public inspection file be available during regular business
hours at the main studio of the station. 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. Copies of the lists must be maintained in the file
until final action has been taken on the station's next renewal
application. On May 15, 2009, in response to a request made during
regular business hours at the station's main studio, station personnel
were unable to make available Issues/Programs lists for the years
2007, 2008, and the first quarter of 2009. Based on the evidence
before us, we find that WSKQ apparently willfully violated Section
73.3526 of the Rules by failing to make available a complete public
6. 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 public inspection file rules
is $10,000. Because only a portion of the WSKQ-FM public inspection
file was not available at the time of inspection, a downward
adjustment of the base forfeiture amount to $4,000 is warranted. 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 WSKQ is apparently liable for a
IV. ORDERING CLAUSES
7. 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, WSKQ Licensing, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of four thousand dollars ($4,000) for violations of Section
73.3526 of the Rules.
8. 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, WSKQ Licensing, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
9. 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). 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. If payment is made, WSKQ Licensing, Inc.
shall send electronic notification on the date said payment is made to
10. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office,
201 Varick Street, Suite 1151, New York, NY 10014 and must include
the NAL/Acct. No. referenced in the caption.
11. 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.
12. 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 WSKQ Licensing, Inc. at its address
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
New York Office
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).
See 47 C.F.R. S:S: 73.3526(b) and (c)(1).
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.
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, 47 C.F.R.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission
Federal Communications Commission