Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
1. Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
McGraw-Hill Broadcasting Co., ) File No. EB-02-IH-0619
Inc. ) NAL/Acct. No. 200432080007
) FRN: 0003476827
Licensee of Station WRTV(TV) ) Facility ID # 40877
Indianapolis, Indiana )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 24, 2003 Released: November
26, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find that McGraw-Hill Broadcasting
Co., Inc. (``M-H''), licensee of Station WRTV(TV),
Indianapolis, Indiana, apparently violated section 73.3526
of the Commission's rules,1 by willfully and repeatedly
failing to provide public access to the station's local
public inspection file. Based upon our review of the facts
and circumstances in this case, we conclude that M-H is
apparently liable for a forfeiture in the amount of Eight
Thousand Dollars ($8,000.00).
II. BACKGROUND
2. The Commission received a complaint from Mr.
Martin Hensley arguing that Station WRTV(TV) did not comply
with the Commission's public file rule.2 Mr. Hensley
alleges that, on January 9, 2002, he visited the station and
asked to see the station's local public inspection file but
was told that he could either wait as much as an hour to
view the file or leave his name so that an appointment could
be made. Mr. Hensley further alleges that, when he returned
to the station later that same day to view the file, station
personnel indicated that he could view only specific items.
Mr. Hensley declares that, at first, he was allowed access
only to letters from viewers sent in calendar years 1999
through 2001. He states that, eventually, he also reviewed
some emails from viewers after making a separate request
that he be permitted to do so. Mr. Hensley relates that,
when he made a second visit to the station on January 14,
2002, he was initially requested to make an appointment.
However, Mr. Hensley concedes that, ultimately, the station
produced some, but not all, license term emails from
viewers. Finally, Mr. Hensley claims that the station's
file included a copy of a coverage map that had been filed
with the station's construction permit application, but not
a more accurate map that shows the station's actual
coverage. After reviewing the complaint, the staff of the
Enforcement Bureau sent to the licensee a letter of inquiry
(``LOI'') dated July 30, 2002, which included a copy of the
complaint. 3
3. Both before M-H responded to the Bureau's LOI and
shortly thereafter, the Commission received additional
complaints concerning M-H's compliance with the Commission's
local public inspection file rule. The first, from Mr. P.
Frederick Pfenninger, alleges that, on July 11, 2002, he
arrived at the station, asked to see the public file, and
had to wait approximately 15 minutes before the receptionist
informed him that no one was available to show him the file
and that he would have to come back and make an appointment
for another day.4 Another complainant, Ms. Pamela Jones,
alleges that, on August 1, 2002, she was not allowed to
browse through the file. Instead, she was asked
specifically what documents she wished to see and was
initially given only them to view.5 A third complainant,
Ms. Canyce McAllister, contends that, on August 15, 2002,
she was not allowed to view the station's public file at all
because she would not state why she wanted to see the file.6
A fourth complainant, Mr. George Price, states that he was
allowed to see the file only after he had provided a reason
for doing so and that he was limited to seeing only specific
items, namely, complaints from the last three years. Even
then, Mr. Price claims that he saw only four letters.7 All
four complainants affirmed their allegations under penalty
of perjury. Following review of the four additional
complaints, the Enforcement Bureau staff sent a second LOI
dated September 19, 2002, to M-H.8
4. In responding to the Bureau's First LOI, M-H
acknowledges that Mr. Hensley was not allowed to view the
WRTV(TV) file during his first visit to the station.9 M-H
explains that the station staff person formerly responsible
for the public file had retired. M-H concedes that the
staff member who dealt with Mr. Hensley during his first
visit misunderstood and did not comply with station policy,
which was to make the file available during normal business
hours to anyone who wished to see it.10 In any event, M-H
contends that the file ultimately given to Mr. Hensley
contained more than 500 articles of correspondence
concerning the station's operation. M-H states that, after
Mr. Hensley had expressed his belief that additional emails
had been sent to the station, it checked its email files and
located and printed out the emails for him to review.11 M-H
submits that it provided copies of all emails requested by
Mr. Hensley at no charge within seven days of his first
visit. 12 M-H further contends that its public file
contained the appropriate coverage map, namely, one
submitted in 1999 with the station's most recent antenna
change application. M-H states that, with respect to Mr.
Hensley's first visit, it regrets the temporary confusion of
its staff, which it blames, in part, on Mr. Hensley's
``consistently confrontational manner.''13 M-H also relates
that an August 29, 2000, inspection of WRTV(TV)'s public
file conducted in connection with the Indiana Broadcasters
Association Alternative Broadcast Inspection Program
revealed that the file's contents were complete.14 Finally,
M-H states that it is aware of no instance in which the
Commission has cited WRTV(TV) for any rule violation since
its acquisition of the station 30 years ago.15
5. In responding to the Bureau's Second LOI, M-H
acknowledges that Mr. Pfenninger visited the station. M-H
states, however, that the receptionist ``had no present
recollection'' of the specifics of her conversation with Mr.
Pfenninger, but related that she would not have told anyone
that he needed to make an appointment.16 M-H regrets if Mr.
Pfenninger somehow obtained the impression that he needed to
come back another day in order to view the file.17 As to
Ms. Jones, M-H explains that the person in charge of its
public file was on vacation at the time of her August 1,
2002, visit to the station. M-H claims that its staff
person asked Ms. Jones whether there was anything he could
assist her finding in ``an effort to be helpful,'' not to
limit her access only to specific items in the public
file.18 With respect to Ms. McAllister, M-H states the
station has no record of her having signed in and the staff
person in charge of the public file has no recollection of
her visit.19
6. M-H insists that it takes its public file
responsibilities seriously, and it provides a Memorandum
distributed to all station staff on August 12, 2002,
reiterating the station's public file policies.20 The
Memorandum notes, among other things, that no person may be
required to make an appointment to see the file and that
requesters must be provided access to the entire file during
normal business hours.21 M-H claims that six other persons
viewed the station's public file during the months of July
and August 2002 with no apparent difficulty.22 Finally, M-H
notes that the station has conducted staff group training
sessions to ensure that all appropriate personnel are aware
of the rules and that the station had its public file
audited by an entity recommended by the Indiana Broadcasters
Association. According to M-H, the audit's only
recommendations were that the station remove certain
outdated materials from its public file and that persons
desiring to view the file receive a written handout
describing the station's public file policy -
recommendations with which it has complied.23
7. In rebuttal, Mr. Pfenninger, who visited the
station on July 11, 2002, reiterates that the receptionist
told him that he would have to return another day after he
had made an appointment.24 Mr. Pfenninger's allegations are
confirmed and repeated by his son, Jeffrey.25 Ms.
McAllister also repeats her claim that the station denied
her request for access on her August 15, 2002, visit to the
station.26 Finally, Mr. Price declares that he was with Ms.
McAllister on August 15, 2002, and that her version of
events is accurate. Mr. Price also states that he did not
receive any handout regarding the station's public file
policy.27 Ms. McAllister and Mr. Price affirmed their
statements under penalty of perjury.
III. DISCUSSION
8. Under section 503(b)(1) of the Communications Act
of 1934, as amended (the ``Act'') any person who is
determined by the Commission to have willfully or repeatedly
failed to comply with any provision of the Act or any rule,
regulation, or order issued by the Commission shall be
liable to the United States for a forfeiture penalty.28 In
order to impose such a forfeiture penalty, the Commission
must issue a notice of apparent liability, the notice must
be received, and the person against whom the notice has been
issued must have an opportunity to show, in writing, why no
such forfeiture penalty should be imposed.29 The Commission
will then issue a forfeiture if it finds by a preponderance
of the evidence that the person has violated the Act or a
Commission rule.30
9. Section 73.3526(a) of the Commission's rules31
requires all licensees of commercial broadcast stations to
maintain a local public inspection file containing certain
designated information. Section 73.3526(c)(1) of the
Commission's rules32 provides, in pertinent part: ``The file
shall be available for public inspection at any time during
regular business hours.'' A licensee ``may not require that
a member of the public make an appointment in advance or
return at another time to inspect the public file, or that
members of the public examine the public file only at times
most convenient to the licensee of its staff.''33 Moreover,
a simple request to see the file should result in an offer
to produce the complete file.34
A. M-H Apparently Has Willfully And Repeatedly
Violated The Commission's Rules By Failing To Make
WRTV(TV)'s Local Public Inspection File Available
10. The issue in this case is whether M-H failed to
make the public file for Station WRTV(TV) available for
inspection to persons who requested to view the file. Based
upon the available record, we find that M-H apparently
failed to do so on two separate occasions. As detailed
above, M-H admitted that it did not make Station WRTV(TV)'s
public file available to Mr. Martin Hensley when he first
visited the station in early January 2002 and requested to
view the file.35 Instead, he was told he could either wait
or make an appointment. In addition, on July 11, 2002, when
Mr. P. Frederick Pfenninger and his son Jeffrey visited the
station and asked to view the station's public file, M-H did
not make the file available to them for inspection.36 After
considering and finding deficient the licensee's
explanations, we conclude that M-H apparently willfully and
repeatedly violated the Commission's public file rules by
failing to make the file available to the complainants named
above.
11. However, we do not find apparent liability with
respect to the complainants' other allegations. As to Mr.
Hensley's allegation that M-H failed to show him
correspondence to the station dated more than three years
old, the public file must include ``[a]ll written comments
and suggestions received from the public [with certain
specified exceptions].... Letters and electronic mail
messages shall be retained for a period of three years from
the date on which they are received by the licensee.''37
Thus, M-H's production of files in 2002, which contained
letters from the years 1999-2001, was consistent with the
rule's requirements. Likewise, Mr. Hensley's allegations
that M-H failed to have had in its file an appropriate
coverage map does not establish a violation of section
73.3526(e)(4) of the Commission's rules38 because Mr.
Hensley did not provide sufficient information for us to
determine that the map in the station's public file was not
accurate or current. With respect to the allegations made
by Ms. Pamela Jones, we note that M-H made available to her
the documents she wished to see, and we deem reasonable the
station employee's explanation that he was trying to assist
Ms. Jones rather than restrict her access to the file.
Likewise, it appears that M-H allowed Mr. George Price to
view that part of the public file that he asked to see.
Consequently, we find unpersuasive the claims advanced by
Ms. Canyce McAllister in view of the fact that her
companion, Mr. Price, acknowledged seeing specific items
from the Station WRTV(TV)'s public file on the same day and
at the same time that Ms. McAllister went to the station.
B. Proposed Forfeiture Amount
12. Section 503(b) of the Act,39 authorizes the
Commission to assess a forfeiture penalty of up to $27,500
for each violation, or each day of a continuing violation,
up to a statutory maximum of $300,000 for a single act or
failure to act if the violator is a broadcast station
licensee.40 In determining the appropriate amount, we
consider the factors enumerated in Section 503(b)(2)(D) of
the Act,41 including ``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 such other matters as justice may
require.''42
13. Section 1.80 of the Commission's rules43 and the
Commission's Forfeiture Policy Statement establish a base
forfeiture of $10,000 for violation of public file rules.
As detailed above, it appears that M-H, on two different
dates, did not make its public file available for inspection
when requested to do so, contrary to section 73.3526(c) of
the Commission's rules.44 Offsetting these apparent
violations is the licensee's history, which shows no
previous violations of the Commission's rules over a 30-year
period.45 Based on these factors and the particular
circumstances of this case, we find that M-H is apparently
liable for a forfeiture penalty of $8,000 for its apparent
willful and repeated failures to make the public file of
Station WRTV(TV) available for inspection.46
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED, pursuant to Section
503(b) of the Act,47 and sections 0.111, 0.311, and 1.80 of
the Commission's rules,48 that McGraw-Hill Broadcasting Co.,
Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR
FORFEITURE in the amount of Eight Thousand Dollars
($8,000.00) for willfully and repeatedly violating section
73.3526(c) of the Commission's rules.49
15. IT IS FURTHER ORDERED, pursuant to section
1.80(f)(3) of the Commission's rules50 that within thirty
(30) days of the release of this Notice, M-H SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
16. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment MUST INCLUDE the FCC Registration Number (FRN)
referenced above and also should note the NAL/Acct. No.
referenced above.
17. The response, if any, must be mailed to Maureen F.
Del Duca, Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W, Room 3-B443, Washington DC 20554 and MUST
INCLUDE the NAL/Acct. No. referenced above.
18. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the respondent 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
respondent'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.
19. Requests for payment of the full amount of this
Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.51
20. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
Commission is engaged in a two-year tracking process
regarding the size of entities involved in forfeitures. If
M-H qualifies as a small entity and if it wishes to be
treated as a small entity for tracking purposes, it should
so certify to the Commission within thirty (30) days of this
NAL, either in its response to the NAL or in a separate
filing to be sent to the Investigations and Hearings
Division. M-H's certification should indicate whether M-H,
including its parent entity and its subsidiaries, meets one
of the definitions set forth in the list provided by the
Commission's Office of Communications Business Opportunities
(OCBO) set forth in Attachment B of this Notice of Apparent
Liability. This information will be used for tracking
purposes only. M-H's response or failure to respond to this
question will have no effect on its rights and
responsibilities pursuant to Section 503(b) of the Act. If
M-H has questions regarding any of the information contained
in Attachment B, it should contact OCBO at (202) 418-0990.
21. IT IS FURTHER ORDERED that a copy of this Notice
shall be sent, by Certified Mail/Return Receipt Requested,
to Don Lundy, Vice President/General Manager, McGraw-Hill
Broadcasting Co., Inc., 1330 North Meridian Street,
Indianapolis, Indiana 46202-2364, with an additional copy to
Arthur B. Goodkind, Esq., Holland & Knight, LLP, 2099
Pennsylvania Avenue, N.W., Suite 100, Washington, D.C.,
20006-6801.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
October 2002
ATTACHMENT B
FCC List of Small Entities
As described below, a ``small entity'' may be a small
organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned
and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages,
school districts, or
special districts, with a population of less than fifty
thousand.
(3) Small Business
Any business concern that is independently owned and
operated and
is not dominant in its field, and meets the pertinent size
criterion described below.
Industry Type Description of Small Business
Size Standards
Cable Services or Systems
Special Size Standard -
Cable Systems Small Cable Company has 400,000
Subscribers Nationwide or Fewer
Cable and Other Program
Distribution $12.5 Million in Annual
Receipts or Less
Open Video Systems
Common Carrier Services and Related Entities
Wireline Carriers and
Service providers
1,500 Employees or Fewer
Local Exchange Carriers,
Competitive Access
Providers, Interexchange
Carriers, Operator Service
Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size
standards are expressed in either millions of dollars or
number of employees and are generally the average annual
receipts or the average employment of a firm. Directions
for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
International Services
International Broadcast
Stations
$12.5 Million in Annual
Receipts or Less
International Public Fixed
Radio (Public and Control
Stations)
Fixed Satellite
Transmit/Receive Earth
Stations
Fixed Satellite Very Small
Aperture Terminal Systems
Mobile Satellite Earth
Stations
Radio Determination
Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space
Stations
Direct Broadcast Satellites
Home Satellite Dish Service
Mass Media Services
Television Services
$12 Million in Annual Receipts
or Less
Low Power Television
Services and Television
Translator Stations
TV Auxiliary, Special
Broadcast and Other Program
Distribution Services
Radio Services
$6 Million in Annual Receipts
or Less
Radio Auxiliary, Special
Broadcast and Other Program
Distribution Services
Multipoint Distribution Auction Special Size Standard -
Service Small Business is less than
$40M in annual gross revenues
for three preceding years
Wireless and Commercial Mobile Services
Cellular Licensees
1,500 Employees or Fewer
220 MHz Radio Service -
Phase I Licensees
220 MHz Radio Service - Auction special size standard -
Phase II Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
controlling principals)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
controlling principals)
700 MHZ Guard Band Licensees
Private and Common Carrier
Paging
Broadband Personal
Communications Services 1,500 Employees or Fewer
(Blocks A, B, D, and E)
Broadband Personal Auction special size standard -
Communications Services Small Business is $40M or less
(Block C) in annual gross revenues for
three previous calendar years
Very Small Business is average
gross revenues of $15M or less
for the preceding three
calendar years (includes
affiliates and persons or
entities that hold interest in
such entity and their
affiliates)
Broadband Personal
Communications Services
(Block F)
Narrowband Personal
Communications Services
Rural Radiotelephone Service 1,500 Employees or Fewer
Air-Ground Radiotelephone
Service
800 MHz Specialized Mobile Auction special size standard -
Radio Small Business is $15M or less
average annual gross revenues
for three preceding calendar
years
900 MHz Specialized Mobile
Radio
Private Land Mobile Radio 1,500 Employees or Fewer
Amateur Radio Service N/A
Aviation and Marine Radio
Service 1,500 Employees or Fewer
Fixed Microwave Services
Small Business is 1,500
Public Safety Radio Services employees or less
Small Government Entities has
population of less than 50,000
persons
Wireless Telephony and
Paging and Messaging 1,500 Employees or Fewer
Personal Radio Services N/A
Offshore Radiotelephone 1,500 Employees or Fewer
Service
Wireless Communications Small Business is $40M or less
Services average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
39 GHz Service
Auction special size standard
(1996) -
Multipoint Distribution Small Business is $40M or less
Service average annual gross revenues
for three preceding calendar
years
Prior to Auction -
Small Business has annual
revenue of $12.5M or less
Multichannel Multipoint
Distribution Service $12.5 Million in Annual
Receipts or Less
Instructional Television
Fixed Service
Auction special size standard
(1998) -
Local Multipoint Small Business is $40M or less
Distribution Service average annual gross revenues
for three preceding years
Very Small Business is average
gross revenues of $15M or less
for the preceding three years
First Auction special size
standard (1994) -
Small Business is an entity
that, together with its
affiliates, has no more than a
218-219 MHZ Service $6M net worth and, after
federal income taxes (excluding
carryover losses) has no more
than $2M in annual profits each
year for the previous two years
New Standard -
Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Satellite Master Antenna
Television Systems $12.5 Million in Annual
Receipts or Less
24 GHz - Incumbent Licensees 1,500 Employees or Fewer
24 GHz - Future Licensees Small Business is average gross
revenues of $15M or less for
the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Very Small Business is average
gross revenues of $3M or less
for the preceding three years
(includes affiliates and
persons or entities that hold
interest in such entity and
their affiliates)
Miscellaneous
On-Line Information Services $18 Million in Annual Receipts
or Less
Radio and Television
Broadcasting and Wireless
Communications Equipment 750 Employees or Fewer
Manufacturers
Audio and Video Equipment
Manufacturers
Telephone Apparatus
Manufacturers (Except 1,000 Employees or Fewer
Cellular)
Medical Implant Device 500 Employees or Fewer
Manufacturers
Hospitals $29 Million in Annual Receipts
or Less
Nursing Homes $11.5 Million in Annual
Receipts or Less
Hotels and Motels $6 Million in Annual Receipts
or Less
Tower Owners (See Lessee's Type of Business)
2.
_________________________
1 47 C.F.R. § 73.3526.
2 Letter from Martin L. Hensley to FCC (undated) (received
June 18, 2002).
3 Letter from Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, to McGraw-Hill
Broadcasting Co, Inc., dated July 30, 2002 (``First LOI'').
4 Letter from P. Frederick Pfenninger to FCC, dated August
13, 2002.
5 Letter from Pamela Jones to FCC, (undated) (received
August 15, 2002).
6 Letter from Canyce McAllister to FCC, dated August 21,
2002.
7 Letter from George Price to FCC, dated August 21, 2002.
8 Letter from Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, to McGraw-Hill
Broadcasting Co, Inc., dated July 30, 2002 (``Second
LOI''). The Second LOI included the complaints of Mr.
Pfenninger, Ms. Jones and Ms. McAllister, but not the
complaint of Mr. Price.
9 Letter from Donald J. Lundy, Vice President and General
Manager to Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, dated August
16, 2002, p. 1 (``M-H First LOI Response''). According to
M-H, Mr. Hensley first visited the station on January 8,
2002. It acknowledges that he returned to WRTV(TV) on
January 9 and again on January 14, 2002. Id., pp. 1-2.
10 Id., p. 1.
11 Id., p. 2.
12 Id., p. 3.
13 Id.
14 Id., p. 2. See also id., Attachment A (Certificate of
Compliance from the Indiana Broadcasters Association
Alternative Broadcast Inspection Program, dated August 29,
2000).
15 Id., p. 4.
16 Letter from Donald J. Lundy, Vice President and General
Manager to Charles W. Kelley, Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, dated October
4, 2002, pp. 1-2 (``M-H Second LOI Response'').
17 Id.
18 Id., p. 2.
19 Id., p. 3.
20 Id. See also Memorandum from Don Lundy to the Staff,
dated August 12, 2002, attached to M-H Second LOI Response
(``Memorandum'').
21 Memorandum, pp. 1-2.
22 M-H Second LOI Response, p. 3.
23 Id., pp. 3-4.
24 Letter from P. Frederick Pfenninger to Charles W.
Kelley, Chief, Investigations and Hearings Division,
Enforcement Bureau, FCC, dated October 31, 2002.
25 Letter from Jeffrey S. Pfenninger to FCC, dated
September 24, 2002.
26 Letter from Canyce McAllister to FCC (undated) (received
November 5, 2002).
27 Letter from George Price to FCC (undated) (received
November 5, 2002).
28 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see
also 47 U.S.C. § 503(b)(1)(D)(forfeitures for violation of
18 U.S.C. § 1464). Section 312(f)(1) of the Act defines
willful as ``the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to
violate'' the law. 47 U.S.C. § 312(f)(1). The legislative
history to section 312(f)(1) of the Act clarifies that this
definition of willful applies to both sections 312 and
503(b) of the Act, H.R. Rep. No. 97-765, 97th Cong. 2d
Sess. 51 (1982), and the Commission has so interpreted the
term in the section 503(b) context. See, e.g., Application
for Review of Southern California Broadcasting Co., (MO&O),
6 FCC Rcd 4387, 4388 (1991) (``Southern California
Broadcasting Co.''). The Commission may also assess a
forfeiture for violations that are merely repeated, and not
willful. See, e.g., Callais Cablevision, Inc., Grand Isle,
Louisiana, Notice of Apparent Liability for Monetary
Forfeiture, 16 FCC Rcd 1359 (2001) (issuing a Notice of
Apparent Liability for, inter alia, a cable television
operator's repeated signal leakage). ``Repeated'' merely
means that the act was committed or omitted more than once,
or lasts more than one day. Southern California
Broadcasting Co., 6 FCC Rcd at 4388, ¶ 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362, ¶ 9.
29 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
30 See, e.g., SBC Communications, Inc., 17 FCC Rcd 7589,
7591, ¶ 4 (2002) (forfeiture paid).
31 47 C.F.R. § 73.3526(a).
32 47 C.F.R. § 73.3526(c)(1).
33 Availability of Locally Maintained Records for
Inspection by Members of the Public, 13 FCC Rcd 17959 (Mass
Med. Bur. 1998).
34 In the Matter of Liability of KLDT-TV 55, Inc., 10 FCC
Rcd 3198, 3199, ¶ 6 (1995). See also In the Matter of M&R
Enterprises, Inc. (Notice of Apparent Liability for
$10,000), 17 FCC Rcd 5897, 5898, ¶ 7 (Enf. Bur. 2002),
(Forfeiture Order), 17 FCC Rcd 14608 (Enf. Bur. 2002)
(forfeiture reduced to $5,000 because of inability to pay);
Availability of Locally Maintained Records for Inspection
by Members of the Public, supra note 33, (``such records
are to be provided on request to members of the public
visiting the station and without requiring that they
identify themselves, their organization, or the particular
documents they wish to inspect.'').
35 See supra note 9. We find immaterial that Mr. Hensley
and M-H do not agree about the date of his first visit
(January 8 or 9, 2002), as both Mr. Hensley and M-H agree
that he visited the station in early January 2002, and that
he requested, but could not view, the station's public
file.
36 See supra paragraph 5. Although M-H apparently disputes
that the receptionist asked Mr. Pfenninger and his son to
make an appointment, it does not dispute that it failed to
produce the station's public file on the date of their
visit.
37 47 C.F.R. § 73.3526(e)(9)(i).
38 47 C.F.R. § 73.3526(e)(4) states in pertinent part that
the public file must include a: ``copy of any service
contour maps submitted with any application ... as long as
they reflect current, accurate information regarding the
station.''
39 47 U.S.C. § 503(b)
40 See also section 1.80(b)(1) of the Commission's rules,
47 C.F.R. 1.80(b)(1); Amendment of Section 1.80(b) of the
Commission's Rules, Adjustment of Forfeiture Maxima to
Reflect Inflation, 15 FCC Rcd 18221, 18223 (2000).
41 47 U.S.C. § 503(b)(2)(D).
42 See also The Commission's Forfeiture Policy Statement
and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, 12 FCC Rcd 17087, 17100-01, ¶ 27
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture
Policy Statement''); section 1.80(b)(4) of the Commission's
rules, 47 C.F.R. § 1.80(b)(4).
43 47 C.F.R § 1.80.
44 47 C.F.R. § 73.3526(c).
45 Although Station WRTV(TV) received a certificate of
compliance in August 2000 from the Indiana Broadcasters
Association Alternative Inspection Program, M-H still
failed repeatedly in 2002 to make its file available to
complainants. Its compliance certificate does not insulate
it from enforcement action based on complaints.
46 See In the Matter of M & R Enterprises, Inc., 17 FCC Rcd
5897 (Enf. Bur. 2002) (Notice of Apparent Liability for
$10,000 for failing to make its public file available to
three persons on two dates), 17 FCC Rcd 14608 (Enf. Bur.
2002) (Forfeiture Order for $5,000; amount reduced due to
demonstrated inability to pay). See also Riverside
Broadcasting, Inc., 15 FCC Rcd 18322 (Enf. Bur. 2000) (NAL
paid; licensee found apparently liable for $10,000
forfeiture for denying access to station's public
inspection file on two dates). Notwithstanding the two
violations here, we have opted to reduce the forfeiture
from $10,000 to $8,000 in light of M-H's overall record of
compliance.
47 47 U.S.C. § 503(b).
48 47 C.F.R. §§ 0.111, 0.311 and 1.80.
49 47 C.F.R. § 73.3526(c).
50 47 C.F.R. § 1.80(f)(3).
51 See 47 C.F.R. § 1.1914.