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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-KC-596
American Family Association, Inc. )
) NAL/Acct. No. 200232560027
Licensee of Radio Station KAUF-FM in )
Kennett, Missouri ) FRN 0005-0295-11
)
Tupelo, Mississippi )
MEMORANDUM OPINION AND ORDER
Adopted: August 14, 2003 Released: August 18,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we cancel
a proposed monetary forfeiture in the amount of nine thousand
dollars ($9,000), issued to American Family Association, Inc.,
(``AFA'') licensee of Radio Station KAUF-FM (``Station
KAUF''), in Kennett, Missouri, for apparent willful violation
of Sections 11.35(a), 73.3527(e)(4), 73.3527(e)(7), and
73.3527(e)(8) of the Commission's Rules ("Rules").1 The noted
violations involve AFA's failure to have operational Emergency
Alert System (``EAS'') equipment and failure to maintain all
required items in the public inspection file (``public
file''). While we cancel the proposed forfeiture, we admonish
AFA for the public file violations.
2. On September 23, 2002, the District Director of
the Commission's Kansas City, Missouri Field Office (``Kansas
City Office'') issued a Notice of Apparent Liability for
Forfeiture (``NAL'') in the amount of nine thousand dollars
($9,000) to AFA for the noted violations. 2 AFA filed a response
to the NAL on October 18, 2002.
II. BACKGROUND
3. On July 17, 2002, an agent from the Kansas City Office
inspected Station KAUF's EAS equipment and observed that both EAS
receivers were turned off and that, when turned on, both
receivers were tuned to default settings rendering them unable to
monitor the two required EAS sources. When the agent examined
the station log it indicated that Station KAUF had not received
an EAS test since the year 2000. Furthermore, the agent
discovered that documents were missing from the public inspection
file. Specifically the agent determined that the latest
ownership report, a copy of The Public and Broadcasting, and the
current issues/programs list were not in the public file.
4. The Kansas City Office issued a NAL to AFA on September
23, 2002, for the two
violations. The NAL proposed a $4,000 forfeiture for the EAS
violation and a $5,000 forfeiture for the public file violations.
AFA filed its response on October 18, 2002 seeking reduction or
cancellation of the proposed forfeiture. AFA submitted a signed
declaration from its Founder and Chairman of the Board, Donald E.
Wildmon, in support of the response.
5. In the response, AFA argues that the portion of the
forfeiture relating to the EAS violation should be canceled
because no EAS violation occurred. AFA asserts that it did not
keep Station KAUF's 2001 and 2002 station logs at Station KAUF,
but rather kept them at AFA's headquarters in Tupelo,
Mississippi. AFA argues that no EAS violation occurred because,
first, the Rules do not require AFA to keep the EAS logs at
Station KAUF and, second, because the logs show that AFA complied
with Section 11.35(a) of the Rules. AFA attached copies of
Station KAUF's EAS logs for 2001 and 2002 to its response. The
logs indicate that Station KAUF's EAS equipment performed
properly until July 9, 2002. AFA notes that on July 9, 2002 the
equipment began malfunctioning and that it turned the equipment
off to avoid spurious signals. AFA further asserts that Section
11.35(b) of the Rules permit stations to operate without
defective EAS equipment for 60 days pending its repair or
replacement. AFA concludes that the proposed forfeiture for the
EAS violation should be canceled because the inspection occurred
on July 17, 2002, only eight days after AFA turned off the
defective EAS equipment and well within the 60-day window
provided by Section 11.35(b).
6. In response to the apparent public file violations, AFA
argues that the proposed forfeiture should be reduced. AFA
states that, prior to the inspection it maintained a duplicate
public file for Station KAUF at AFA's headquarters and mailed
each item for the public file to Station KAUF with explicit
filing instructions. AFA submits that it mailed all of the
required items to Station KAUF but that the station manager was
behind on filing and consequently the items were not in the
public file. Moreover, AFA asserts that the station manager was
on vacation during the inspection and his substitute did not
recognize the items to hand to the agent. AFA argues that the
forfeiture should be reduced because AFA has stream-lined Station
KAUF's public file so that it now resides on a single, frequently
updated, compact disc and that a computer is available in the
studio so that the public can access the disc and print copies of
public file documents. AFA provided a copy of the new compact
disk with its response. AFA concludes that the NAL should be
canceled on the basis of its history of overall compliance and
because the proposed forfeiture amount is disproportionately
punitive given Station KAUF's annual revenue.
III. DISCUSSION
7. The District Director assessed the proposed forfeiture
amount in this case in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),3 Section 1.80
of the Rules,4 and The Commission's Forfeiture Policy Statement
and Amendments of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines.5 In examining AFA's response, Section
503(b) of the Act requires that the Commission take into account
the nature, circumstances, extent and gravity of the violation
and, with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and other such matters
as justice may require.6
8. In response to the EAS portion of the NAL, AFA
submitted copies of Station KAUF's EAS logs for 2001 and 2002.
After reviewing the EAS logs, we determine that AFA did not
violate Section 11.35(a). The EAS logs verify that Station KAUF
properly performed its EAS tests during 2001 and through July 7,
2002. The logs further confirm that the EAS equipment began
malfunctioning on July 9, 2002 and that AFA turned off the
equipment on that date to avoid spurious signals. Section
11.35(b) permits stations to operate without defective EAS
equipment for 60 days, without further FCC authority.7 The agent
inspected Station KAUF's EAS equipment on July 17, 2002, only
eight days after AFA turned off the equipment and well within the
60-day time frame permitted by Section 11.35(b). AFA notes that
the EAS equipment is now functioning properly. In light of the
above, we cancel the portion of the NAL relating to the apparent
EAS violation.
9. Turning to the public file violations, Section
73.3527(e) of the Rules requires that certain items be retained
in the public file. Specifically Sections 73.3527(e)(4),
73.3527(e)(7), and 73.3527(e)(8) require that copies of the
latest ownership report, a copy of The Public and Broadcasting,
and the current issues/programs list be kept in the public
inspection file.8 We determine that AFA willfully violated
Sections 73.3527(e)(4), 73.3527(e)(7), and 73.3527(e)(8) based on
AFA's admission that the station manager was behind on filing and
did not place the required items in the public file.9 However,
AFA declares that the required items were at Station KAUF during
the inspection and points out that this is not a situation where
they had to go out and create the public file or obtain new
documents after the inspection to comply with the public file
rules. After reviewing the record before us, we cancel the
portion of the NAL relating to the public file violations based
on AFA's good faith efforts to comply with the requirements of
Sections 73.3527(e)(4), 73.3527(e)(7), and 73.3527(e)(8). Based
on our findings above, we do not reach a determination on the
remainder of AFA's arguments. However, we admonish AFA for the
public file violations.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 504(b) of the Communications Act of 1934, as amended,10
and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,11 the
Notice of Apparent Liability for a Forfeiture, NAL/Acct. No.
200232560027, issued to American Family Association, Inc., for
violation of Sections 11.35(a), 73.3527(e)(4), 73.3527(e)(7), and
73.3527(e)(8) of the Rules IS CANCELED.
11. IT IS FURTHER ORDERED that AFA IS ADMONISHED for
its willful violation of Sections 73.3527(e)(4), 73.3527(e)(7),
and 73.3527(e)(8).
12. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by certified mail return receipt requested to
American Family Association, Inc., P.O. Drawer 2440, Tupelo,
Mississippi 38803.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35(a), 73.3527(e)(4), 73.3527(e)(7),
73.3527(e)(8).
2 American Family Association, Inc., NAL/Acct. No.
200232560027 (Enf. Bur., Kansas City Office rel. September 23,
2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17,087 (1997), recon. denied, 15 FCC Rcd 303
(1999).
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. §11.35(b) permits stations to ``operate without
the defective EAS equipment pending its repair or replacement
for 60 days without further FCC authority.''
8 47 C.F.R. §§ 11.35(a), 73.3527(e)(4), 73.3527(e)(7),
73.3527(e)(8).
9 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) (finding
that the term ``willful'' simply requires that the violator
knew it was taking the action in question, irrespective of any
intent to violate the Rules.).
10 47 U.S.C. § 504(b).
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).