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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Multicultural Radio Broadcasting ) File Numbers
Licensee, LLC EB-09-NY-0307
)
Licensee of EB-09-NY-0308
)
WZRC, New York, New York, Facility ID NAL/Acct. No. 201032380007
#27398 )
FRN 0010215812
WKDM, New York, New York,Facility ID )
#71137
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 4, 2010
By the District Director, New York Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Multicultural Radio Broadcasting Licensee, LLC
("Multicultural"), licensee of commercial AM radio stations WZRC, New
York, New York, and WKDM, New York, New York, apparently willfully and
repeatedly violated Section 73.3526(c) and Section 73.3526(e)(6) of
the Commission's Rules ("Rules") by failing to maintain and make
available a political file. We conclude, pursuant to Section 503(b)
of the Communications Act of 1934, as amended ("Act"), that
Multicultural is apparently liable for a forfeiture in the amount of
eight thousand dollars ($8,000).
II. BACKGROUND
2. On October 15, 2009, an agent from the Enforcement Bureau's New York
Office ("New York Office") inspected the co-located main studios of
stations WZRC and WKDM, which are located at 449 Broadway, New York,
New York. The inspection was conducted during normal business hours
with the stations' Chief Engineer, Vice President, and General
Manager. The agent reviewed each station's public inspection file and
found that Multicultural did not maintain a political file for either
station. When the agent asked if any requests had been made for
broadcast time from candidates for public office, the Vice President
searched the office and found four invoices, two for each station,
showing that requests for broadcast time from local political
candidates had been made and granted in September 2009. The General
Manager stated to the agent that he believed only requests for
broadcast time from candidates for federal office needed to be
retained in the political file.
3. On October 29, 2009, the New York Office sent a Letter of Inquiry
(LOI) to Multicultural seeking additional information regarding the
stations' political files. In its November 18, 2009, response,
Multicultural admitted that it did not maintain a political file with
requests for broadcast time from candidates for public office.
Multicultural also stated, as did the stations' general manager during
the inspection, that it believed the political file requirements
applied only to requests for time from candidates for federal office
and that all requests they received came from candidates for local
political office. They further reported that they immediately located
all documentation regarding requests for time from political
candidates and placed them in a political file that afternoon.
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) 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. Sections 73.3526(b) and
73.3526(c)(1) of 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)(6) of the Rules requires all AM and FM
broadcast stations to place in the public files such records as are
required by Section 73.1943 to be kept concerning broadcasts by
candidates for public office. On October 15, 2009, in response to a
request made during regular business hours at the stations' main
studio, station employees were unable to make available a political
file for either station WZRC or station WKDM. Station employees,
however, provided the agent invoices that showed the station had in
fact received and granted requests for time from political candidates
in 2009. In response to the October 29, 2009 LOI, Multicultural
admitted that it did not maintain a political file; we therefore find
that the violation was willful. Because the violation occurred for
more than one day, the violation was repeated. Based on the evidence
before us, we find that Multicultural apparently willfully and
repeatedly violated Section 73.3526 of the Rules by failing to
maintain and make available a political file.
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 the public inspection file
rule is $10,000 per station. Because the public inspection file for
stations WZRC and WKDM was largely complete, a downward adjustment of
the base forfeiture amount to $4,000 per station 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 Multicultural is apparently liable for
a $8,000 forfeiture.
III. 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, Multicultural Radio
Broadcasting Licensee, LLC 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.
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, Multicultural Radio
Broadcasting 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.
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, Multicultural Radio
Broadcasting Licensee, LLC shall send electronic notification on the
date said payment is made to NER-Response@fcc.gov.
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 Multicultural Radio Broadcasting
Licensee, LLC at its address of record and to counsel for
Multicultural at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast 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:S: 73.3526(b) and (c)(1).
47 C.F.R. S: 73.3526(e)(6) and 47 C.F.R. S: 73.1943. Section 73.1943(a) of
the Rules provides that every licensee shall keep and permit public
inspection of all requests for broadcast time made by or on behalf of a
candidate for public office. The rule further provides that the
documentation in the public file must include an appropriate notation
showing the disposition made by the licensee of such request, and the
charges made, if any, if the request is granted. Such records must be
maintained for a period of two years. See 47 C.F.R. S: 73.1943(c).
Multicultural submits that it did not maintain a political file because
all of its requests for broadcast time were from local political
candidates and that they believed, albeit mistakenly, that the rules
applied only to federal candidates. We note that the Commission
consistently has stated that ignorance of the law is not a mitigating
factor. Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387 (1991), citing Vernon Broadcasting, Inc.,
Memorandum Opinion and Order, 60 RR 2d 1275, 1277 (1986) and Fay Neel
Eggleston, Memorandum Opinion and Order, 19 FCC 2d 829 (1969).
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)(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.
S: 73.3526.
See 47 C.F.R. S: 1.1914.
Federal Communications Commission
2
Federal Communications Commission